19 July 2007

No promotion for judges with backlog in grounds of judgment


PUTRAJAYA: Judges who have a backlog of grounds of judgment for criminal and civil cases will not be considered for promotion.

Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim (picture) said this was one of the factors taken into account before judges are elevated.

"But there are only a few judges with outstanding ground of decisions and I believe they will be able to tackle them."

Fairuz said promotions for judges was decided not only by him, but also by a committee of senior judges from the Federal Court and Court of Appeal.

He said this after witnessing eight newly-appointed Court of Appeal judges take their oath of office at the Palace of Justice conference hall here yesterday.
The top judge said subordinate courts were bound to follow a superior court ruling in line with the principle of binding precedent.

He was commenting on a Court of Appeal decision in a case where it ignored a Federal Court ruling and allowed the appeal of two brothers whose land was transferred to a third party using forged documents.

The Court of Appeal led by Datuk Gopal Sri Ram said the principle set out in Adorna Properties Sdn Bhd v Boonsom Boonyanit in which the Federal Court ruled in favour of a bona fide purchaser of land whose ownership had been forged, should not have been followed as it was contrary to the National Land Code.

His two fellow judges, Datuk Zulkefli Ahmad Makinuddin and Datuk Md Raus Sharif while acknowledging that the Federal Court’s decision was wrong and called for a review, nevertheless said they were bound by the ruling until the Federal Court departed from its earlier decision.

"The Federal Court has spoken about this that the lower courts are bound by the High Court ruling. If we were to allow the lower court to ignore a ruling by Federal Court just because one (lower court) thinks the other (Federal Court) is wrong, then of course we are not following the principle of stare decicis (binding precedent)," he said.

Under the common law system, the lower courts must follow the decisions of the courts which are superior to them in the legal hierarchy.

He said if the binding precedent was not adhered to, the judiciary system would be looked at in a negative light.

"It is bad for the judicial system because we must be consistent. If they are not happy, they can express their view but then it’s up to the Federal Court to decide on the ruling or make the necessary corrections. We practise the adversarial system and therefore we are to comply strictly with this principle," he added.

The eight elevated judges took their oath before the senior-most Court of Appeal judge Datuk Gopal Sri Ram.

Also present was the Chief Judge of Sabah and Sarawak Datuk Richard Malanjum.

The eight are Datuk Vincent Ng Kim Khoay; Datuk Abdul Malik Ishak; Datuk Abu Samah Nordin; Datuk Wan Adnan Muhamad who were formerly with the High Court here, Datuk K.N. Segera (Shah Alam High Court); Datuk Sulong Matjeraie (Kota Kinabalu); Datuk Ahmad Maarop (Kuala Terengganu) and Datuk Sulaiman Daud (Seremban).

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