US Supreme Court Appointee: A President’s Responsibility

February 26, 2016

What President Barack H.Obama is looking for in a Supreme Court nominee:

With the passing of Justice Antonin Scalia, the President now has a duty to nominate someone to sit on the bench of our nation’s highest court. Article II, Section 2 of the Constitution makes that responsibility clear. It’s a responsibility President Obama takes seriously — and one he hopes the Senate will take seriously, too.

A Responsibility I Take Seriously

by President Barack H. Obama

February 24, 2016

The Constitution vests in the President the power to appoint judges to the Supreme Court.  It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.

It’s also one of the most important decisions that a President will make.  Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.

Needless to say, this isn’t something I take lightly.  It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum.  And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.

First and foremost, the person I appoint will be eminently qualified.  He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity.  I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.

Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law.  I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear.  There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment.  That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook.  It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times.  That, I believe, is an essential element for arriving at just decisions and fair outcomes.

A sterling record.  A deep respect for the judiciary’s role.  An understanding of the way the world really works.  That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court.  And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength.


The Supreme Court vacancy and why President Barack Obama is bound by the US Constitution to act

February 18, 2016

What you need to know about The Supreme Court vacancy and why President Barack Obama is bound by the US Constitution to act

The White House • 1600 Pennsylvania Ave NW • Washington, DC 20500 • 202-456-1111

With the passing of Justice Antonin Scalia, there is now a vacancy that must be filled on the Supreme Court — and President Obama has a Constitutional responsibility to nominate someone to take his place.

The Supreme Court is a vital institution of American democracy and, since the founding of our country, the President of the United States has had the responsibility to appoint a Justice to the Supreme Court every time — and any time — there is a vacancy on the bench. It then falls to the United States Senate to confirm that nominee before he or she can take her seat on our nation’s highest court.

The confirmation of a Supreme Court Justice is a solemn responsibility that the President and the Senate share under the U.S. Constitution. It is not a political opportunity that reflects “left” or “right,” Democrat or Republican. It’s a serious obligation to make sure that an indisputably qualified person of integrity is nominated and confirmed to sit on the highest court in the land.

The President plans to offer his nominee for the Supreme Court to the Senate — and the Senate has more than enough time to confirm that nominee.

Here are the facts:

FACT: Six Justices have been confirmed in a presidential election year since 1900.

For more than two centuries, it has been standard practice for Congress to confirm a president’s Supreme Court nominee, whether in a presidential election year or not. Of the six justices confirmed since 1900, three have been Republicans. The most recent Justice to be confirmed in an election year was Justice Kennedy — appointed by President Reagan — who was confirmed by a Democratic-controlled Congress in February of 1988.

FACT: Every nominee has received a vote within 125 days of nomination.

Since 1975, the average time from nomination to confirmation is 67 days. In fact, since 1875, every nominee has received a hearing or a vote. The longest time before confirmation in the past three decades was 99 days, for Justice Thomas, and the last four Justices, spanning two Administrations, were confirmed in an average of 75 days.

The Senate has almost a full year — more than 300 days — to consider and confirm a nominee.


FACT: It will be harmful and create unsustainable uncertainty if Congress fails to act on the President’s nominee.

The Supreme Court could go the better part of two Terms with a vacancy if the Senate rejects its Constitutional responsibility. It’d be unprecedented for the Court to go that long with an empty seat. Here’s why it’s harmful:

The Court’s 4-4 decisions have no value in establishing precedent on which future decisions can rely. They also cannot establish uniform nationwide rules. That means if multiple courts ruled differently on an issue before it arose at the Supreme Court, a 4-4 ruling would leave those different rules in place in different states. The result is an unsustainable uncertainty — for the law, for individual liberties, and for our economy.

As President Obama said, “The Constitution is pretty clear about what’s supposed to happen now.” Watch his remarks:


The Persecution of Public Intellectual Kassim Ahmad continues

January 21, 2016

The Persecution of Public Intellectual Kassim Ahmad continues

by V. Anbalagan, Assistant News Editor


Kedah’s well known Public Intellectual Dr Kassim Ahmad talks to the Press.– The Malaysian Insider/Najjua Zulkefli

Putrajaya has filed an appeal to overturn Court of Appeal ruling that declared the arrest and detention of activist Dr Kassim Ahmad by the Federal Territories Islamic Religious Department (JAWI)in 2013 were illegal.

The Attorney-General’s Chambers from the civil division this afternoon filed the leave application in the Federal Court registry. The Malaysian Insider understood that Putrajaya had framed two legal questions for the apex court to grant leave in order for the merit of the appeal to be heard.

Meanwhile, Kassim’s lawyer Rosli Dahlan confirmed a copy of the application had been faxed to his office. On December 21, a three-man bench led by Judge Vernon Ong Lam Kiat said Jawi had no jurisdiction over Kassim, a Kedah resident.

“We order that the arrest, detention and prosecution are null and void,” Ong said, allowing Kassim’s appeal against a High Court ruling.Soon after the verdict, the 83-year-old Kassim hoped that JAWI would drop charges against him.

On Monday, Putrajaya Shariah High Court said it would decide on February 22 whether Kassim should be freed of his charges of insulting Islam and disobeying religious authorities. Rosli submitted that his client should be freed or alternatively given a discharge not amounting to acquittal as there was no stay applied on the Court of Appeal ruling.

Kassim had challenged JAWI over his arrest in a state outside the authority’s jurisdiction, claiming that it had acted illegally, unconstitutionally and beyond its powers.

Besides JAWI, he also named Dat0′ Seri  Jamil Khir Baharom, the Minister in charge of Islamic affairs, and then-Federal Territory chief Shariah prosecutor, Ibrahim Deris and the Government.

As a speaker, he was said to have insulted Islam at a seminar that was officiated by former Prime Minister Tun Dr Mahathir Mohamad.Kassim has held critical views of some hadiths and also accused some ulama (religious scholars) in Malaysia of enforcing a “priesthood caste”.

Kassim was arrested on March 26, 2013 by JAWI enforcement officers who also searched his home in Kulim, Kedah.He was flown in an AirAsia commercial flight from Penang to Sepang, Selangor before charged in a lower Shariah Court in Putrajaya.

In filing a judicial review against JAWI, Dr. Kassim sought an order to strike out the chief prosecutor’s decision on March 27, 2013 to prosecute him for allegedly insulting Islam and going against religious authorities.

Ridiculously Resilient High Corruption Score: Is Malaysian Judiciary a Major Cause?

UPDATE: (January 21, 2016)

January 19, 2016

Ridiculously Resilient High Corruption Score: Is Malaysian Judiciary a Major Cause?

by Lim Teck Ghee

The recently released annual Corruption Perceptions Index (CPI) table for 2014 has seen us climbing three places from the previous year. While some see this as evidence of improvement, it really is nothing to shout about. Malaysia is still ranked 50th out of 175 countries compared with 2013 when we were ranked 53rd out of 177 countries.

No doubt there will be some doubters and disbelievers who will ignore this important barometer which measures the level of corruption in the public service. Hard core “nationalist” supporters of the Government, for example, will argue that the index is another example of Western or Jewish-influenced organizations trying to discredit or defame the country.


However, it is difficult to fault the organizations involved in the formulation of the CPI and the methodology used to compute the index which basically is a composite figure based on surveys done by business people from around the world, including experts and analysts working in the countries evaluated.

In fact, most Malaysians will be wondering as to why we are not ranked worse. This is especially so given the importance attached by the index to the extent public officeholders are prevented from abusing their position for private interests and if the government successfully prosecutes, penalises and prevents corruption.

For instance, they ask:-

  • Are there any clear procedures and accountability governing the allocation and use of public funds?
  • Are public funds misappropriated by ministers/public officials for private or political party use?
  • Are there special funds for which there is no accountability?
  • Are there general abuses of public resources?

All these questions are pertinent in the scandals involving 1MBD and personal “donation” into the Prime Minister’s account which have transfixed us during the last year. One wonders what the Auditor-General is doing with regard to governance, apart from earning his fat salary and related perks and the prospect of becoming a chairperson in some important GLC.

Paramount Importance of Independence of Judiciary

Of equal, if not greater, importance is the emphasis attached to an independent judiciary by the diverse organizations involved in formulating the CPI.

In view of the fundamental correlation between the level of corruption and the level of integrity and independence of the judicial system. contributors to the CPI such as the Bertelsmann Foundation Transformation Index, World Justice Project Rule of Law Index, Economist Intelligence Unit Country Risk Rating and World Executive Forum Economic Survey are asking hard questions like:

  • Is there an independent judiciary with the power to try ministers and public officials for abuses?
  • Are Government officials in the judicial branch misusing public office for private gain.

These are questions which newcomers to the Malaysian judicial and political arena are likely to answer favourably if they go by what they read in the official media. But if we look at informed public opinion in response to judgments in the growing number of politically and religiously skewed cases that have appeared before the Judiciary during the past two decades, there will be a different response to the question as to whether we have a truly independent judiciary.

Why is it the common perception that the Attorney General, judges, magistrates and other court officials are subject to improper influence from the Government and from private or partisan interests?

In a recent keynote address to the Judicial Service Association of Sri Lanka, Justice C.V. Wigneswaran provided an answer by pointedly emphasizing the common contributory causes which lead to judicial bias. These are:

  • Political pressures brought about directly or indirectly.

  • Desire on the part of a Judge to curry favour for his or her future prospect.

  • Pecuniary interest of the Judge in the subject matter of the case before him or her.

  • A desire to patronize any former colleague at the Bar or elsewhere.

  • Inherent tendency in a Judge to show favour to certain classes of cases.

  • Interest of the Judge in one or the other litigating parties for any reason whatsoever.


There are very few, if any Malaysian judicial officials, willing to be as forthright as Justice C.V. Wigneswaran. One important exemption has been Justice Dato’ Mohd Hishamudin Yunus.

On his retirement, in response to the question, “what is the most important foundation stone for a judiciary to mete justice in a democracy?” he provided the following answer: A truly independent Judiciary.

In 1988, then Lord President Tun Salleh Abas, who was brought before a tribunal for misconduct, and the five Supreme Court judges that granted him an interim order against the tribunal, were either sacked or suspended. Today, in cases where the Government is a defendant, respondent or claimant, can judges still decide on the law alone or do you think some might find themselves thinking “I think this is what the Government wants me to do”?

The 1988 assault on our Judiciary was a judicial nightmare, a national tragedy. With respect, I hold the opinion that the then Rt. Honourable Lord President and the five Supreme Court Judges were innocent of the charges. The late Justice Wan Sulaiman and his panel of Supreme Court Judges must forever be remembered and commended for their courage and uprightness in upholding the Rule of Law and the independence of the Judiciary; for which they paid a high price.

Tun Suffian Hashim

Yes, by now, after some 27 years since that dark episode, the Judiciary has probably recovered, but still to a very limited extent. The negative public perception against the Judiciary is still there. Indeed, as the late Tun Suffian (a former Lord President-picture above) had said many years ago in his speech in honour of the late Tan Sri Wan Sulaiman (one of the two Supreme Court judges that was unjustly dismissed in the assault of 1988) on March 10, 2000, ‘I had predicted that our Judiciary would take a whole generation to recover from the assault. Now more than 12 years have lapsed. I doubt if the Judiciary would recover in a generation from today’.

Justice C. J. Wigneswaran put it more succinctly.  According to him,

Faith in the administration of justice is one of the pillars on which democratic institutions function and sustain. To establish that faith, Judges must do what is right both legally and morally. Whatever difficulties you face from outside agencies you must try your best to do what is legally and morally expected of you. For that we must require a degree of detachment and objectivity in judicial dispensation.

The Future?

The worldwide launch of the 2015 CPI will be on  January 27,  2016 simultaneously in over 120 countries. When the results come out in 2017, there will be few takers for the bet that Malaysia will have improved its ranking in the CPI index.

Our Judges must accept criticisms

January 13, 2016

Our Judges must accept criticisms

by The Phantom Busybody

Tan Sri Ariffin Zakaria2

Much ado has been made about Dato’ Zaid Ibrahim’s describing the judges of the Court of Appeal as heartless following their decision in the Indira Gandhi unilateral conversion case.

Personally, I would urge the Judiciary to learn to deal with such criticism by simply ignoring them unless there is a gain of truth in such criticism. In an increasingly globalised world where freedom of speech is recognised as an irreducible minimum in human rights, the judiciary must move with the times and not insist upon sticking to Malaysian “standards”.

The United Kingdom, which is the main source of our rich common law heritage, had in 2013 enacted the Crime and Courts Act which abolished the offence of scandalising the Judiciary as a form of contempt of court. Judges in the UK have been subjected to some of the most trenchant criticism.

A classic example involved former Northern Ireland Secretary Peter Hain who criticised Lord Justice Girvan’s handling of a judicial review application in his autobiography, describing the judge as “off his rocker” i.e insane.

When debating on his amendment to the Crime and Courts Bill, Lord Pannick criticised the decision to prosecute Mr. Hain. He remarked that “…surely a former Secretary of State, or indeed any citizen, should be able to express his views about a judge without being threatened with a prison sentence.

If the Attorney-General for Northern Ireland is going to revive this otherwise moribund branch of the criminal law, Parliament should kill it off before it does any further damage. There is simply no justification today for maintaining a criminal offence of being rude about the judiciary – scandalising the judges or, as the Scots call it, murmuring judges.”

Lord Pannick also went on to say that “We do not protect other public officials in this way. Judges, like all other public servants, must be open to criticism because, in this context as in others, freedom of expression helps to expose error and injustice. It promotes debate on issues of public importance.

A criminal offence of scandalising the judiciary may inhibit others from speaking out on perceived judicial errors. I would be surprised to learn that this view was not shared by the vast majority of serving judges… Since the Attorney General of Northern Ireland has woken up this pitiful legal animal, we should take this opportunity to put it finally to sleep.”

In the United States, a recent dissent by the Chief Justice of the Supreme Court in the case of Obergefell v Hodges 2015 invited acerbic criticism from Richard Posner, a judge of the lower Seventh Circuit court. He had this to say – “…the chief justice’s dissent is heartless…Gratuitous interference in other people’s lives is bigotry.” Posner was quite simply describing the chief justice as heartless and a bigot. Yet he was not prosecuted.

As if describing judges as heartless in statements or articles is not enough, 27 years ago, the Association for Children for Enforcement of Support presented “Heartless” awards to two judges of the Tuscaloosa County Circuit Court, Judge Conger and Judge Jim Embry. The awards were presented to recognise the two individuals as the worst judges for showing lack of concern of enforcement of child support.

I would call upon the Malaysian Judiciary to emulate the spirit of Lord Denning when he held in the case of R v Commissioner of Police (1968): “Let me say at once that we will never use this jurisdiction (of contempt) as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”

The most effective shield and breastplate of a judge is his reputation of integrity, impartiality, and wisdom. An upright judge will almost never have to resort to the power to convict for contempt in his judicial office.

Zaid Ibrahim takes on Arifin Zakaria and Gopal Sri Ram

January 11, 2016

Zaid Ibrahim takes on Arifin Zakaria and Gopal Sri Ram


First Chief Justice Tun Arifin Zakaria chastised me for not reading the Court of Appeal’s judgment in the Indira Gandhi case before calling the judges names. The entire mainstream media carried the story.

A few days later, he was ably supported by retired Federal Court judge Gopal Sri Ram, who asked lawyers (meaning me) to read the judgment before criticising the judges. As if that were not enough, he also described me as a lousy politician for not lasting very long as a minister.

Sri Ram finally congratulated Arifin for defending the judges, and for asking them to write good judgments. For someone in active legal practice (despite having been a senior judge for so long) and who now appears before the Federal Court regularly, that’s not a bad precedent to follow.

I would first like to ask both of them to read my blog post properly. My blog is easier to understand than some of the judgments from the Federal Court these days. I write for the common people. I speak their language. I was never a good or erudite lawyer like Arifin or Sri Ram.

I was saddened by the Court of Appeal’s decision in Indira’s case. I was disappointed with the verdict. Reading the judgment will not make me feel any better. It’s the decision that nauseated me.

As with all previous judgments that disappointed me, the judges defend their decision by saying they were powerless because of something or other. It could be because of a previous decision, or because of Article 121(A), or because the matter rests with the Shariah Court. We have heard it all before. That’s the source of my exasperation.

I did not say the majority judges were heartless or the only ones at fault. I was expressing my frustration, not just at the Court of Appeal judges but at all the judges in the Federal Court in the last 10 years for their cavalier attitude towards fundamental liberties and for not asserting the core constitutional principles of our  legal system.

My question was, what kind of system do we have? I said the whole country has failed or has lost its soul, and as a result we have produced heartless judges. If a mother cannot be with her daughter for nine years, then the system stinks.

I don’t care if the Court of Appeal is bound by a 2014 Federal Court decision in Raimi Abdullah’s case. Why didn’t the Court of Appeal follow another Federal Court decision in 2007 in the case of Latifah Mat Zin, if that would have enabled them to give justice to Indira?

Gopal Sri Ram.jpg

Over the years I have seen that there has been no attempt to assert the  primacy of federal law over state laws, the  primacy of civil courts over the Shariah Court.

As in the Indira case, these judges always find, in cases where there is a conflict between shariah  and constitutional principle, the easy way out and suggest that non-Muslim parties seek remedy in the Shariah Court. That’s what incensed me. Read my blog post again.

Sri Ram said the Federal Court’s decision in 2014 in Raimi Abdullah’s case was the cause of the problem. I am sure it is, but I don’t care what the source of the problem is. It’s the heartless judges in Raimi’s case that started it all and which brought us to the latest judgment in Indira’s case, and which led me to describe all of them as heartless. That’s my opinion based on what had happened.

So the Court of Appeal was bound by the decision in the Raimi case.  Was the chief justice involved in that decision, that others had to follow it? Is Sri Ram saying that the chief justice is the source of the problem? If the judgment was handed down in 2014 then the present chief justice must have presided over the case. If he thinks the decision in the Raimi case was correct, then I am sorry for Indira and her team.

Now I have to pay the price for calling the judges “heartless”. The police are questioning me and I expect to be charged in court. In Malaysia, a senior judge can say the Bar Council should be happy that opposition leaders have won their cases, implying that the Bar is pro-opposition, but no police investigation will be carried out on him.

NSC's Najib

But I used words that upset some people in the Palace of Justice, and lo and behold, the police came calling immediately.

Those in Putrajaya who think any upcoming trial will be about me are sadly mistaken – it will be about them. I will defend my use of “heartless judges” vigorously, I will explain why those judges have failed their oath of office, not just in Indira’s case but in many others.

Justice has been denied to Malaysians for so long because the judges are heartless.



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