The Asian Renaissance
by Dato' Seri Anwar Ibrahim
Justice and The Law
When men form a compact to establish a civil society or a political community, they are in need of an organizing principle without which the community will disintegrate. This principle is none other than justice. As Aristotle said: "Justice is the bond of men in states, for the administration of justice, which is the determination of what is just, is the principle of order in a political community."
The principle of justice is so central in a civil society that without it, the concept of law has no meaning. St. Augustine said that "there is no law unless it be just" and that kingdoms are but great robberies if justice is taken away.(1) For Thomas Aquinas, "the force of law depends on the extent of its justice.(2) Alexis de Tocqueville wrote: "There is one universal law that has been formed by the majority of mankind. That law is justice. justice forms the cornerstone of each nation's law."(3)
The Quran enjoins as follows: "Whenever you judge between people, judge with justice."(4) In the same vein, Muslim philosopher al-Farabi designates justice as a principal attribute of the leader and the people inhabiting the Virtuous City.
So integral is the idea of justice to man that no society is devoid of its conception, and each has evolved its own institution to embody it. Whole societies have been stirred into action in the pursuit of justice and good governance, overthrowing colonial powers and foreign oppressors. Unfortunately, having gained their independence, some countries, while making rapid strides in economic and social development, have not achieved a comparable progress in building the institutions of civil society, particularly the realm of justice and good governance. It would be a tragedy indeed if this hard-earned freedom were to result merely in the substitution of a foreign oppressor with a domestic one, or as in George Orwell's Animal Farm, the replacement of the two-legged animal by the four-legged.
It is a legitimate expectation of the citizenry that they be governed with justice by those entrusted with power and authority. The holders of public office therefore carry a sacred trust from all those who had given their lives and property in the struggles for independence of our nations. To be conscientious of the people's expectations as regards justice, accountability and good governance, we must look upon power and authority not as right and privilege, but as duty and obligation.
The issue of justice and governance also concerns the moral responsibility and integrity of those who hold public office. Since can be made and unmade by those who control the legislature, law-makers must be imbued with a sense of integrity and motivated not by self-interest but by considerations pro bono publico. For Thomas Aquinas, laws were just when they served the common good, distributed burdens fairly, promoted religion, and were within the bounds of the law-maker's authority.(5)
The Rule of Law
In as much as there is no law without justice, there is no justice without the rule of law. This concept encapsulates three principles. The first is the predominance of regular law so that the government has no arbitrary authority over the citizen. Secondly, all citizens are equally subject to the ordinary law administered by the ordinary courts. And thirdly, perhaps the most significant, the citizen's personal freedoms are formulated and protected by the ordinary law, rather than by abstract constitutional declarations.
The rule of law is the use of law to curb the misuse or abuse of law-making power by the authorities. Law-makers must fulfil their duty to pass only laws that meet the criterion of justness. For if the laws passed by the legislature are manifestly unjust even to the man in the street, then that would put the rule of law in jeopardy.
One of the hallmarks of a civil society is the creation of entrenched constitutional safeguards for the protection of the people's civil rights and liberties. This is an area which demands an innovative and creative approach, fortified by a sense of moral conviction on the part of legislators. In the pursuit of this, there must always be a sense of balance between upholding the rights of the individual and maintaining public order and security.
Man has a dual nature; he is both his own person and a member of his community. On the one hand, the law must protect the individual from the injustices of the multitude. History has shown how individuals fall prey to mass perversity, their crime being simply a refusal to conform to the beliefs and prejudices of the majority. The religious wars in Europe left such a scar in the psyche of the West that the protection of the conscience of the individual has taken priority over all else.
On the other hand, society, being an entity established for the civilized conduct of human affairs, has fundamental rights which are essential for its continued existence. These are rights to maintain law and order, peace and harmony. In this regard, society has the right to defend itself against diabolical minds which see in guarantees of civil liberties opportunities to pursue their vile designs to the detriment of the public. In established democracies, certain individuals use the cloak of individual rights to vent their base desires at the expense of the rights of the majority.
The maintenance of the rule of law hinges on the clear separation of powers between the three branches of government - the legislature, the executive and the judiciary. In as much as parliamentarians are not expected to adjudicate on the laws of a community or country, judges should not take it upon themselves to act as parliamentary draughtsmen or apologists for the executive. As a restraint on the temptation to abuse or misuse power, it is crucial that legal systems be adequately equipped with the necessary checks and balances.
Judges ought to exercise their judicial powers in accordance with the rule of law and not the rule of men. In so doing, judges must constantly bear in mind the legitimate expectations of the people as to their competency, dedication and impartiality. An independent judiciary is a judiciary committed to the preservation of the rule of law. We do not advocate that such a judiciary, in order to be effective, must necessarily take on an anti-establishment posture. But it must, at the very least, be seen to be able to dispense justice without regard to wealth, power or status. As Socrates said: "Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially." The growing concern of the public regarding the increasing incidences of judicial indiscretions is a matter to be neither taken lightly nor viewed negatively.
In tandem with the growing maturity of our society, the people's consciousness and expectations of the moral dimension of justice is greater. Not only must judges display the requisite level of competence and expertise, they must, like Caesar's wife, be above suspicion. Thus, judges must be seen to be absolutely impartial in the adjudication of all cases, be they commercial, civil, criminal or constitutional.
In the case of East Asia, this is essential to bolster the region's image as a place where justice can be readily sought and obtained. This is particularly relevant in an era of deregulation and the explosion of the free market when corporations are steadily encroaching into the spheres of society once considered the preserve of governments. Corporations, with their eyes constantly on the bottom line, are not known to be coy about exercising their power to influence judgments in their favour. In seeking legal redress, the poor and the weak are, in some cases, cowed into submission by the rich and the powerful who are armed to the hilt with the most sophisticated legal weaponry and judicial firepower. Under such circumstances, justice can be elusive if not altogether impossible. In this regard, of paramount importance will be the promotion of social justice via the legal and judicial apparatus to ensure that no group will be unduly marginalized. This apparatus must not be limited to mere legal aid to help those who cannot afford legal redress but must extend to proactive assistance to further the cause of justice through the legal process, without fear or favour.
Among contemporary thinkers, John Rawls is probably the most persuasive in expounding the doctrine that justice is the criterion of the worthiness of social institutions. According to him, laws and institutions, no matter how efficient and well-arranged, must be reformed or abolished if they are unjust. Thus, every individual possesses rights founded on justice which are inviolable.(6)
In regard to the pronouncements and decisions of our judges, it is pertinent to remember what justice Oliver Wendell Holmes said almost 100 years ago: "The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race.”(7) It is, therefore, vital that we leave behind a legacy of just laws if we are to be remembered as being instrumental in building a dynamic and progressive judicial landscape.
Thus, the challenge is not only to ensure that all our laws are manifestly just but also that they be administered justly without regard to a person's wealth or standing in society. There is nothing more tragic than just laws being administered unjustly. It is dangerous to allow the law to be thought of as something quite distinct from justice in the moral sense, or else it would be possible to blatantly commit injustices by purportedly lawful means. Our courts of law must, at the same time, be courts of justice. Their judgments must conform not only to strict legal requirements but also to the dictates of fairness and equity. If those judgments seek merely to pander to the needs of legal sophistry at the expense of common sense and fair play, then they are perverse. Thus, in a critique of the American legal system, Philip K. Howard wrote:
Modern law is a game of parsing and logical intrigue. Wherever detailed provisions bend and twist, the observant lawyer will find a place where he can go and violate the spirit of the rules, or get an advantage over others, and do so with complete impunity.(8)
The Rule of Lawyers
Given the rapid developments around us, it would not be misplaced to attempt a reappraisal of the role of lawyers as our societies become more advanced and sophisticated. The popular image of lawyers is not flattering. Though the reputation is largely undeserved, it is nevertheless part of the popular imagination all over the world. A Japanese proverb, for example, says that "only painters and lawyers can change white to black." According to an English saying, "There are only two kinds of lawyers, those who know the law and those who know the judge." Notwithstanding this, in general, the legal profession comprises conscientious professionals who practise law true to their calling. And it is to them that the question of their roles in our rapidly changing societies need to be addressed.
To begin with, lawyers must maintain the highest standards of competency and professional ethics. They should also do more public service and make legal expertise more accessible to the less affluent. The law must also be demystified. Lawyers must not, consciously or unconsciously, with intent or otherwise, seek or cause to obfuscate the minds of the people with legal gobbledegook.
The rapid economic and material progress being experienced by the countries in East Asia will significantly impact on the geopolitical and cultural landscape. New lifestyles will emerge; the people will have new aspirations and different expectations. Value systems may undergo transformation. For better or for worse, norms may change and shifting mores will give a new dimension to our collective consciousness of shared values. Increasing affluence will give rise to greater litigation consciousness, greater awareness of individual rights and the civil remedies available; and certainly an increase in activity in all fields of endeavour, more inter-country links and travel across national borders. These in turn will give rise to increased legal complications and, ipso facto, the role of lawyers will become more significant.
As the region continues to progress, the necessity to understand each other's legal and judicial systems becomes all the more pressing. For instance, the harmonization of laws in the Asean region is a pressing issue. Being largely linked to the sociopolitical aims of Asean as a supra-national entity, it has of course to be resolved through the political forum. From the legal viewpoint, the process of harmonizing will certainly strike certain discordant notes, considering the variety of legal systems involved. Lessons could easily be drawn from the European Union where fundamental issues of legal sovereignty have, until today, not been resolved.
In the context of Malaysia, our experience has shown that failure to keep abreast with the developments in the law in other jurisdictions has resulted in retrogressive judgments from our own courts. This state of affairs has been blamed on certain provisions of the Civil Law Act, which have led to the ossification of judicial thinking. This form of legislative enslavement is one legacy of the colonial past from which we must liberate ourselves. For example, certain features of the English Common Law, the foundation of the Malaysian legal system, are archaic and irrelevant to our society. The fact that they continue to be part of the legal corpus manifests jurisprudential malaise on the part of our law-makers. Thus, progressive reforms should be instituted to enable the legal system of each country to develop in tandem with the overall progress of the society.
Muslim countries, too, continue to suffer from this colonial legacy. In Malaysia's case, the Shariah (Divine Law) system dealing almost exclusively with Islamic Family Law, and meant only for the adjudication and administration of justice among Muslims, exists side by side with the civil law system inherited from British colonial rule. Much of the laws of pre-colonial times based on Islamic jurisprudence and the customs of the people were replaced by colonial legislation based on the English Common Law. This has given rise to conflicts of laws on account of the clash of jurisdictions between two separate and distinct legal systems, each deriving their principles and values from different sources. Such instances may be rare, but when they do occur, they invariably result in injustice. As justice is the ultimate end of the judicial process, much needs to be done in order to harmonize the laws and eliminate the potentialities of such conflicts.
The dynamic growth of our laws should entail the ability to draw upon the wealth of laws in other jurisdictions as well as from other legal systems. To ensure legislative dynamism, certain key areas of the law need to be thoroughly reviewed, either by way of repealing old laws or introducing new ones. In such a time as we are in, where industrialization and economic development is moving at a rapid pace, laws pertaining to commercial transactions and cross-border arrangements, multimedia and cyberlaws, penal law and the sentencing system, need to be revised regularly.
While economic prosperity is an essential ingredient of a successful society, neither nation-building nor the happiness of our society can be realized through the fulfillment of material needs alone. The moral and cultural dimensions are equally essential.
The notion of accountability, which is one of the hallmarks of a morally responsible government, requires us to heed the voices of those who have been unjustly or unfairly treated. All the great traditions of mankind enjoin the dispensation of justice to all. For instance, in the Islamic tradition, causing injustice to another person is clearly prohibited. As the Prophet of Islam commanded: "la yazlimuhu wa la yakhdhuluhu - neither be unjust to him nor abandon him."(9)
To reach a golden age of justice, it is crucial that this sense of justice be imbued among all those involved in the legal and judicial system. Law teachers, parliamentary draughtsmen, legal advisors to government departments, prosecutors, advocates and solicitors, magistrates, registrars and above all, judges, must have a strong sense of justice.
Concepts of justice must have hands and feet or they remain sterile abstractions. This means that there must be efficient means and methods to carry out justice in every case in the shortest possible time and at the lowest possible cost. There must also be introspective reviews of existing laws and legislations to see that we have not backslided or compromised our ideals of justice, and that we keep in step with the progress of civilization. If the law does not keep abreast with the march of time, it will soon be rendered archaic and obsolete. To quote the words of the late Supreme Court justice Eusoffe Abdoolcader:
Even if the law's pace may be slower than society's march, what with increased and increasing civic-consciousness and appreciation of rights and fundamental values in the citizenry, it must nonetheless strive to be relevant if it is to perform its function of peaceful ordering of the relations between and among persons in society, and between and among persons and government at various levels.(10)
1. Freeman, M.D.A., Lloyd's Introduction to Jurisprudence, sixth edition, London: Sweet and Maxwell Ltd, 1994, p. 136.
2. Ibid., p. 87.
3. Tocqueville, Alexis de, Democracy in America, New York: Alfred A. Knopf, 1963.
4. al-Nisa' 4:38.
5. Freeman, M.D.A., op. cit., p. 87.
6. Rawls, John, A Theory of Justice, Cambridge: Harvard University Press, 1971. See also Political Liberalism, New York: Columbia University Press, 1996, by the same author.
7. Posner, Richard, The Essential Holmes, Chicago: Chicago University Press, 1992, p.161.
8. Howard, Philip K., The Death of Common Sense, New York: Random House, 1994, p. 44.
9. Hadith narrated by Muslim.
10. Tan Sri Hj Othman Saat v Mohd bin Ismail (1982) 2 Malayan Law Journal, p. 179.