• Life is never perfect.  But i wouldnt want to be anywhere else but here.  Happiness is a choice.  Wake up every morning with a smile. Smile for at least a minute and it will stick on you thoughout the day.  Inshaallah.  Be blessed peeps.  

"Kalau I Kerja Means I Kerja la"

Holla...

Can I say that sometimes the best person u can rely is yourself, and thus it is important to love yourself because only then you wont hurt yourself and wont allow yourself to get hurt. Sometimes you have to trust yourself more before you can trust anyone else.. or at least the trust must be accompany with cautions or else you will be in terrible pain.

I dont feel good today. I dont feel happy today. It's partly my own fault for losing control of myself and emotion. I dont feel like doing anything other than burying myself into a couple of agreement drafting due on monday. So that is what I'm going to do. And to quote someone "kalau I kerja, means I kerja la" - ayat cam tak bg gangu kan? so ok la.. now jom kita plak kerja. 

Nite to those with sleepy eyes.. sweet dreams. ;)

Regards,

Dee

Powerful and Active Role of the Judiciary

The Malaysian Judiciary is among the government bodies comprising of The Legislative Body, The Executive and The Judiciary existing as independent institutions. The main function of the Judiciary is to ensure compliance with the Federal Constitution, and to uphold justice in accordance with the laws of Malaysia. Apart from the role to adjudicate and resolve legal matters arising between individuals as well as individuals and the state, the courts also serve to interpret the laws of Malaysia. The Malaysian Judiciary undertakes and executes these special tasks and obligations to uphold and preserve the Federal Constitution.

By virtue of Article 121(1) of the Federal Constitution, the judicial power of the Federation is vested in the High Court of Malaya and the High Court of Borneo and in such inferior courts provided by federal law. The judiciary is empowered to hear and determine civil and criminal matters, and to pronounce on the legality of any legislative or executives cuts. The law also confers on it the authority to interpret the Federal and State Constitution.

The Judicial Authority of the country is vested in the Federal court, the High court and subordinate courts. The Federal court is the highest court in Malaysia.

To enable it to perform its judicial function impartially, the judiciary must be independent. This means the independence of the individual judges in the exercise of their judicial function and the independence of the judiciary as an institution.

Though in Malaysia it’s almost summer all year long with one or two rainy season comes around when least expected, but in the field of law, it is perpetual spring where both old and new jurisdiction continually send forth new growth from the precedent principles, sometimes to fill in the small interstices in a lattice of established law, sometimes sprouting urgently and luxuriantly to cover an area bare of legal principle.

The manner and the extend of the growth of new law is largely in the hands of the Judges and mainly the judges of the superior courts as the power conferred on them carries more weight and their function as they define new principles and find new application for principles already established. Though the question posted here are literally on the contribution of the “Superior Court”, nevertheless I am going to denote my discussion on the contribution of the judges as being part of the Superior court as they are the entity responsibly involves directly or indirectly, depending on the different jurist view; in the manner in which the law are made suitable for the changes in the society

It is in no question that the powers to make law theoretically are conferred primarily on the Parliament. Nevertheless there has also been an agreed opinion for as long as the legal spheres are concern that the judges filed in the gaps left by rules using their discretion. Positivistic jurisprudence from Austin to Hart placed strong emphasis on the part played by judges in the exercise of their discretion.  In the modern world, the discretionary power raise the question on “exactly what part do judges play in the development of law”; “Do judges MAKE or DECLARE law?”.

The courts must not shy away from discharging their constitutional obligation to protect and enforce human rights of the citizens and while acting within the bounds of law must always rise to the occasion as guardians of the constitution. The judges have to be alive to the reality that as society changes, the norms acceptable to the society also changes, and that while discharging the constitutional duties, they have to develop the law on those lines.

Most members of the judiciary hastily deny any implication that they reform the law. According to Lord Simonds, "heterodoxy, or as some might say, heresy is not the more attractive because it is dignified by the name of reform" and law reform "is the task not of the courts of law but of Parliament".

The famous common law theorist and a legal positivist, Hart, believes that there are clear indication that Judges do indeed create new law where, existing laws have become outdated or inappropriate. It is well known that the judges’ role is not only to read the law but to interpret it. In doing so, judges have to be independently creative and not only in interpreting written law but also the development of the law in the society as a whole. Their freedom of being creative is however is restricted by the rules of precedent and the supremacy of Parliament and by the rules of precedent and statutory interpretation.

Occasionally, judges are called upon to give a ruling or make a decision when faced with a situation for which there seems to be no precedent or any guiding rules. In these circumstances, judges can be said to be formulating original precedent. Thus, it is the judge’s role to use his own discretion regarding when he thinks rules need to be applied, changed, improved or abolished. Hart sees the function of law as being one of a system of rules; he maintains a firm belief that where there are gaps in the system judges should use their own discretion when applying the law. He believes that because statutes and common law rules are often too vague and unclear it is often expected for a judge to create new law. He talks about the open texture of law means that are, indeed, arrears of conduct where courts or officials striking a balance, in the light of circumstances, between competing interests, which vary in weight from case to case, must leave much to be developed.

Dworkin in an opposing view sees judges as decision maker who discover and declare the existing law through the rules of precedent and not according to his own private judgment. They are not delegated to pronounced new law but to maintain and expound the old one as according to the known laws and customs of the land.

The question on whether judges make law or not is not as far this paper is concern as either way the judges whether in making new law or by mere decision making does contribute to the fast changing development of law in way or another.

According to Raz, courts do develop the law; they do that by working out the implications of internal legal considerations. Courts in developing the law do not give expression to their personal views, nor do they reflect external social or political forces. Rather, they unravel the spirit of the law, unfold its hidden force and reveal its meaning. He says that judges can make the law even when precedent binds them by distinguishing it with the previous decision but this is very restricted form of law making subjected to two crucial conditions. Firstly, the modified rule must be the rule laid down in the precedent restricted by the addition of further condition for its application and secondly, the modified rule must be such as to justify the order made in the precedent. The judges’ obligation is to adopt only that modification which will best improve the rule. In the exercise of their law making power the courts should within the legally imposed restrictions act by adopting the best rules they can find. They may make a new rule in a decision, which he thinks is a purely law applying decision.

As far as interpreting the statutes are concern, the interpretation of every statutory provision must keep pace with changing concept’s and values and it must, to the extent to which its language permits or rather does not prohibit, suffer adjustments through judicial interpretation so as to accord with the requirements of the fast changing society which undergoing rapid social and economic transformation.

Besides interpreting the law, judges may also exercise they limited discretion power by laying new norms of law and to contour the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality.

Law does not operate in a vacuum. It is therefore intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate. It is here that the judge is called upon to perform a creative function. He has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest, it with a meaning which will harmonize the law with the prevailing concepts and values and make it an effective instruments for delivery of justice.

Thus the contribution from the courts can be made not only by constitutional interpretation, but also interpreting statutes seamlessly with the changing times and it is here that the creative role of the judge appears and accordingly contributes to the process of legal development.

As discuss earlier, though the court in being creative are tied down at some point to the precedent rules, they do not need to follow the precedent blindly and do not always consider them bound by the given principles. The court does evolve new principles. When new societal conditions and factual situations demand the judges to speak, they, without professing the tradition of judicial lock-jaw, must speak out.

In an Indian case, M.C. Mehta v Union of India, the court said that with the development and fast changing society the law cannot remains static and that the law has to develop its own new principles. The above decision reflects that the courts do make law, they frame new principles; interpret the statutes and the constitution with the changing times.

Furthermore, the court should not hesitate in giving effect to the constitutional policy such as equality, socio-economic justice, liberal interpretation and recognition of rights of the individuals giving effect to a more meaningful life. 

Judicial decisions are seen as legal principles which are binding upon judges. Old principles will have to be applied to new and unforeseen situations; and in this process they may take a shape they had never shown before. Legal principles may be actualised by a statute, but also by a court of law. We should add that legal principles discipline the judge: the judge complies with the system of the law. Judges may not interpret the law according to their own convictions unless they find it consistent with the structural design of the legal system as a whole, and also with the dominant past lines of interpretation by other judges.

However, we should not forget the passive or reactive nature of the judiciary. They decide cases one at a time, but in a large quantity. This means courts often attribute to the development of the law in an uneven, unsystematic, often illogical way. That does not alter the fact that especially the Supreme Court should use its possibilities to contribute to the development of the law by developing as much as possible clear and specific rules and the summing up of circumstances that are relevant for the decision.

The coordination of judicial decision-making is also relevant. Judges can make agreements on how to interpret the law in the future or a special way of access to the Supreme Court could be created to ensure special attention to the co-ordination of judicial decision-making. Promoting legal certainty and equality in this way, the legitimacy of the courts will grow.

In public law, legal principles especially will come to the fore, when the judiciary becomes more actively involved in the legal protecti­on of the citizen. The judiciary, on the basis of case law, may developed legal princi­ples with regard to improper actions and decisions of the administ­ration. The courts, in cooperation with jurisprudence, may developed legal princi­ples of justice which offer protection to the citizen.

Nevertheless, the judiciary should certainly be very cautious in reviewing enacted law, a fortiori in reviewing Acts of Parliament. Judges are disciplined by the specificity of the cases they must decide and, as a result, their professional experience reflects the value of deliberative wisdom , the wisdom that consists in a knowledge of particulars and that no general theory can provide. Because of their specialized legal education, judges are experts at applying the law, and more broadly at making value judgements. The authority of judges derives in part from their epistemological competence.

Lastly, in employing the binding judicial precedent, the court are normally bound to judicial precedent by the same court in it’s hieracy or above them. However, consideration shall also be denoted to following international precedent.

In common law countries, precedents are theoretically binding if a higher court has rendered a decision on the question, or if there is a previous decision of the same court. However, recently many common law courts have recognized that precedent should not be strictly adhered to if it will cause injustice. If a judge did not want to follow a particular precedent, he could always distinguish it on technical ground from his present decision.

In conclusion following the above discussions, an important point to be emphasis is that while engaging themselves in exercising their powerful role, the court must be able to be more willingly open to criticism. The independent judiciary is formally not accountable to anyone, but they are certainly public. They are constantly in the public gaze, and subject to public criticism. They are judged by the public and respond to it. The decisions of the courts contribute to the law in one way or another by the interpretation, the clarification, and, sometimes, the development of the law which shall be done creatively and independently without strictly and constantly required to adhere to judicial precedents. Especially, in the development of law, courts should be alive and active in framing the law in line with the growth of the law.

Note: My references made using several sources online and this article is intended for sharing of knowledge and information only. Please let me know if any of the content herein is offensive to any party/ies. Enjoy. 

Pre-World Cup Prediction - Oren Sprite vs Diana Dee

Salam all,

Just to make this coming World Cup a lot more Interesting, here is a rough prediction on which team shall go through to the next round..... feel free to comment your own predictions.... ;)

http://www.fifa.com/worldcup/groups/index.html

lovess... Dee

My Late Grandfather.

My Tata. 

He was very nice to me.

He will take me to fetch my sisters from school.

I remembered he will take to play tire-swing tied from the branch of a tree

He will sit with me at the porch of his house waiting for the time to pick my sisters from school or while waiting my mom / dad to pick us up after work 

He is a man with very less words

but very big heart

He is the only grandfather that I knew and have the time to love.

He raised my dad to be who he is now - A MAN

and only a MAN can raised a child to be MAN

and I pray that my SON will become a MAN,

just like his grandfather and great grandfather.

I pray for his soul to be in peace.

Amin.

Lots of LOVE;

Dee

Fan of a fan's group?

Holla lovely peeps!!

I am not a big fan of Malaysian football. Never have been. So I would be not the person you want to be with in the stadium watching football unless it is Malaysian team against other International club - then, this will be a different story, perhaps. 

My previous entry I did wrote about the Ultras, and I have a question now - Does all this people who goes to the stadium to watch the match really are a die-hard fan or even simply a fan at all of the game?? or are they fan of the Ultras??  The reason for my question is that, the Ultras seems to be more exciting then the match itself. ;) ... there are more spirit from the bench then on the field itself. 

peace ;)

Dee.. 

 

23.05.2014 - SAMPAI MATI !!!

Cerita hari ini,
Aku lukis dalam hati,
Cinta hati ini,
Aku simpan hari mati.

Diri aku ini,
Benarkan cinta kenal mati.
Walau satu hari,
Aku janji pada diri,
Harus buka mata hati,
Kenali satu cinta sampai MATI.