May Day For Justice
by Tun Mohamed Salleh Abas, Former Lord President, Supreme Court of Malaysia, with K Das
A great deal can be done by severity, more by love, but the most by clear discernment and impartial justice. -- Johann Wolfgang von Goethe. Quoted in Johann Peter Eckermann's Conversations with Goethe, 1825.
My reaction to the whole affair, seriously disturbed though 1 was, was very mild. (Even this view, let me note, was later characterised as a lie in the charges laid against me) I felt that the immediate need was to explain and elucidate rather than to expostulate or attack in order to protect the integrity of the Judiciary and defend the Constitution.
Having failed to persuade the Prime Minister through my statement to the press in September, that the matter should be allowed to rest, I spoke at some length about the real need for judicial independence on 9 January, 1988. It was more than a month after the Prime Minister's parliamentary speech, and the occasion was the Annual Dinner of the Faculty of Law of Universiti Malaya. The remarks I made which are relevant for my present purpose were as follows:
"Law is a matter that is important in any country which is organised because it is only through the law that a nation can remain in a situation of peace, justice and prosperity ....
"But the law is not an automatic machine. Law can only be effective by depending on two factors.
"The first factor is the enforcement of law with a just and honest attitude, and the second factor is a judiciary which not only ought to be just and honest but also free from the interference of politics and corruption.
"Law can only be enforced if the authorities concerned take action. If not the judiciary is not able to carry out its duty because the court is not empowered to take action by itself. It can only make decisions and impose sentences when cases are brought before it by the authorities.
"Therefore the authorities themselves must be fair in carrying out their legal duties without discrimination and bias. If this is not done, dissatisfaction will arise amongst the people so as to destroy peace and justice as well as prosperity in the country.
"As for the Judiciary it must also perform its duty fairly, i.e., it must be free from allegations of being rebellious and one-sided, of malice and corruption, and what is more important, to be free from political interference, be it by the ruling party or the opposition in party politics ....
'A matter which is very important for the courts is the independence of the Judiciary, because this concept is a matter which cannot be avoided but must be accepted if we want a Government guided by the Rule of Law..... unfortunately, this concept of the Independence of the Judiciary has been so misunderstood that there are allegations of judges overstepping the limit and getting involved in the political arena where the Judiciary has been regarded as an opposition party.
"This kind of misunderstanding and assumption is most regrettable, and it is saddening because the intention and aim of a judge when making 4 decision is entirely guided by the supremacy of the law, not take over or do away with, the power in the hands of the power-holders.
"The courts are firm in that they will not be involved in politics for any party whatsoever and will not revoke or oust policy decisions that have been made by the Executive. But if those decisions result in the infringement of a citizen's rights as guaranteed by the Constitution or recognised by the law, the courts surely cannot remain quiet The court will then make whatever decision as required by the circumstances of the case.
"Here it is regrettable if the decision made by the court is regarded as made deliberately to challenge the Executive. The differing decisions given by judges is entirely because of differences of thought and opinion, not a matter that is deliberately created. It is for this reason that we must have a system of appeal courts and the ideal is to have a two-tier appeal court system where the Supreme Court is the final court of appeal.
"We all understand that the role of law is to create and to preserve justice and peace. If there is no justice, peace will not be achieved since those who are dissatisfied will constantly try with all their might to obtain justice and if this cannot be controlled in a just and fair manner, peace will be endangered.
"Therefore judges have a heavy duty to create and to preserve peace through justice. We observe that lately many countries in Asia and Africa experienced political disturbances which destroyed the peace and as a result caused suffering and hunger amongst the people. We do not want something like that to happen in our country. Therefore we must regard the Independence of the Judiciary as a national asset which we ought to be proud of and not a burden which would destroy the nation or a liability which ought to be removed.
"It ought to be remembered that a nation's destiny does not lie wholly in the hands of politicians but also in the hands of judges who have taken the oath to preserve, protect and defend the Constitution and the law.
"In a conflict between a citizen and the Government this heavy duty is carried by means of judicial review. This concept is not, as is assumed, to enable judges to substitute Government decisions brought before the court with the decisions of the court; but it is only to ensure that Government decisions brought before the court have been made according to just procedures. For under the Rule Of Law, the Government must be just not only in terms of decisions but also the procedures in reaching the decisions.
"The courts do not interfere regarding the essence or quality of the decision, whether it is good or bad, just or cruel, because that is a matter of politics and the wisdom of the Government. The courts look at the procedure only, whether the procedure is reasonable or not.
"Even so, the court can only act if a person who brings a complaint before it has actually been prejudiced by the Government decision such that his rights and interests have been affected or he has suffered loss.
"Perhaps the difference between 'what is said to be a decision’ and 'what is said to be procedure’ is difficult to understand because the dividing line is very unclear. In this regard, we do not create things which do not exist, neither do we eliminate things which exist, although the result is that the Government decision is revoked. Therefore if confidence cannot be given to judges to make decisions based on unwritten legal rules because of worry that judges may import their own wisdom, then by what principles are judges to be guided?
"Even though they may be forced to depend on the words in Acts of Parliament or codes, those words to be found in the Acts and Codes are not free from the need of interpretation, since a large portion of the law is made up of interpretations.
"If there is no interpretation there is no law, and there would be no ulamaks, intellectuals, lawyers, judges and so on. In fact in the case of a policeman who arrests a person for committing an offence, he is also interpreting a law, which, in his understanding, the arrested person has violated. But his interpretation is then subject to the interpretation to be made by the court.
"Similarly with Islamic Law. In that legal system, interpretations are very important. This interpretation does not only involve the Court but also the Government and Parliament, because Parliament in not empowered to make laws against the syari'a, and similarly the Government cannot carry out its functions if contrary to syari'a, and lastly the courts cannot make a judicial decision which violates the syari'a. In that case who is to interpret the syari'a? The power can be given to the judge or it could be given to the mufti or ulamak or a body composed of judges and ulamaks.
"I mention this matter here because in any system of law whatsoever, interpretation is compatible with, and cannot be divorced at all, from law, even if the law is written. Not only law but also Circular Letters which are issued by the Public Services Department try to make interpretations, so much so, that a special body (The Public Service Tribunal) was set up a few years ago in order to make interpretations of these circulars.
"I have been speaking at length and have touched on matters of law in order to explain and clarify the problems which have been raised lately. I feel that this is a reasonable forum to enable me to make clarifications. It is hoped that the misunderstandings can be corrected, the strains can be lessened and the developments understood. All this is for the prosperity of the nation and the interest of the people."
Two days after my speech, I read in The New Straits Times a statement by the Attorney-General which only demonstrated that the concept of judicial independence was not fully appreciated in more areas than one in what I may describe as the Executive complex. The Attorney-General it seemed, had now joined the Prime Minister in advising judges about their duties and responsibilities.
I do not object to advice as such, but one should hardly teach fish how to swim. The Attorney-General was reported as follows:
"Independence . . . does not necessarily mean deciding a case against the state. Sometimes a notion prevails that the more a judge decides cases against the state, the more independent he is. This is a wholly misleading notion.
"We should not take a lop-sided view of the Independence of the Judiciary. Independence means dispensation of justice without fear or favour.
"Independence postulates keeping the scales even in any combat between the rich and the poor, the mighty and the weak, the state and the citizen.
"A judge like any other human being, has his own weaknesses, but as a person educated to acquire attributes befitting a judge, he is expected to have a better ability than most others in decision- making.
"However, a judge might, under pressure, forget the ideals of his post and be influenced in a certain issue or case to the extent that emotions play a part in the verdict or comment made.
"Although the verdict may be legally sound, the judgement might contain side comments or reflect personal opinions of the judge which might offend certain groups."
These gratuitous remarks of the Attorney-General were made on 11 January, 1988, of all places, at a ceremony elevating two judges to the High Court Bench. The senior civil servant seemed to be unaware that it was not his place to play the role of adviser to judges, who are elevated to their positions precisely because they were found to have the very qualities which he was, quite unnecessarily pontificating upon, and saying they should have.
I could not help wondering at the time why he chose to make those remarks when and where he did, given the prevailing atmosphere of distress created by the Prime Minister vis-a-vis the Judiciary. What purpose could this speech possibly serve but to further embarrass and discredit the Judiciary? Did High Court Judges - even newly appointed ones - really need lectures on their duties and responsibilities, much less on the elementary principles on the question of dispensing justice, from a civil servant, even if he was the chief public prosecutor?
Since when did the guardian of the public interest, who must, by definition, constantly compete for judgement in his own favour in open court, become the philosopher-guide to judicial erudition, objectivity and impartiality?
It was patently absurd.
On the following day, 12 January, as it happened, 1 was to speak at the ceremony for launching a book on the law by His Royal Highness, Sultan Azlan Shah. The book was the product of two important law conferences held in Kuala Lumpur in 1987.
Mindful of the unhappy atmosphere which now prevailed following Operation Lalang of 27 October, and saddened by the continuing psychological pressure being put upon the Judiciary, I tried once again to clear the air by speaking about the law and various responsibilities the leaders of the society must carry. The important book being launched on that day was titled, appropriately enough, Law, Justice And The Judiciary: Transnational Trends. I said then, inter alia:
"In a democratic system it goes without saying that the Judiciary plays a vital role as it is accepted as the acknowledged guardian of the Constitution. This vital constitutional principle is so settled that no question should really arise concerning the position of the Judiciary under the Constitution. But recently this guardianship has been made an issue, and our independence appears to be under some kind of threat. [This paragraph later became the basis of one the charges against me.]
"This is amply borne out by some of the comments made recently which embarrassed the Judiciary a great deal. These remarks not only questioned our neutrality and independence but the very value of it [the Judiciary] as an institution.
"It is very much to be regretted if a Court decision is to be understood as an act of hostility against the Government if it loses the case or as a proper decision only when it wins it. Our responsibility of deciding the case without fear or favour, as alluded to by the Attorney-General, does not mean - and I am sure the Attorney-General will not disagree - that the court decision should, whatever happens, be in favour of the Government all the time. For to decide only one way at all times is the very negation of that freedom which is inherent in that concept 'without fear or favour.'
"To maintain neutrality and independence is an arduous task for any Judiciary in any country, and especially so in newly developed countries. As an institution, the Judiciary is required to stand between the Government and the citizens. Whilst it is expected to act, and indeed must act with fairness to a private litigant, it also has to have regard to competing public interests, so that government business is not unduly interrupted by litigations in which it is a party..
"....the problem of maintaining judicial independence is further complicated by the fact that the Judiciary is the weakest of all three branches of Government. It has no say in the allocation of funds not even in determining the number of staff needed for the running of its own system. [This paragraph, too, later became the subject of one of the charges against me.]
"The recent utterances concerning the Judiciary are really a manifestation of the nature of the relationship between the Judiciary and the Executive in any society which believes in the independence of the Judiciary. This relationship has always been delicate and sensitive, if not altogether precarious. In times of difficulties, economic and political pressures can have serious effects on this delicate position of the Judiciary and sometimes with disastrous results. This has occurred not only in one or two countries but in most countries, especially in the newly developing countries, and throughout the ages in the development of law, including the development of Islamic Law.
"The problem is always germane in a system which accepts the Judiciary as an independent and ultimate authority to expound what the law is. It requires only understanding and self-restraint on the part of the critics for the problem to subside and disappear.
"In a democratic system, the courts play a prominent role as an agent of stability but they can perform this function only if judges are trusted. Not only must the citizens have confidence in the Judiciary, but the Executive and the Legislative branches, too, should not do anything which could undermine that confidence. In this connection we need no reminders from the Attorney-General, nor from anyone else, as to our responsibilities and duties. We judges must act with responsibility and dignity, and must not conduct ourselves in a way which exposes us, and the system which we operate, to unnecessary criticism.
"The Rule of Law, of which the Independence of the Judiciary is an integral part, is not a product of our whims and fancies. It is indeed the product of generations of legal thought and philosophies marked with numerous battles and scarred with the sacrifice of many lives of famous and infamous men in history.
"To say that the law is buried deep in the heart of judges and will only manifest itself according to the emotional and psychological attitudes of judges is, to say the least, not only a misconception of what the law is, but also an unfair criticism ....
"What matters most in order to enable us to save the system from disastrous consequences is that we judges must act with responsibility and dignity, and not be drawn or tempted into impulsive action which could result in aggravating the situation.
"Judicial independence must not be seen as a national liability but as the single most important national asset. Political stability will not be possible and the richness of our economic resources will not be capable of exploitation if people do not trust the Judiciary. Therefore the destiny of this nation lies as much in the hands of the Legislature and Executive as it does in the hands of the Judiciary.
"To say that the Judiciary's role in interpreting the Law and Constitution should be subordinated to what is conceptualised as the will of the people is to ignore a vital theory that the judge’s position is also the embodiment of that will. The Constitution is the product of the will of the people and since the Constitution gives us the position as the ultimate interpreter of the Law and the Constitution, it is the will of the people that we remain so. 'The people' is not merely a segment of the population as has been asserted by some quarters, but embraces the entire citizenry.
"The Laws and the Constitution, however perfectly these could be written in any language, can never be divorced from the need of interpretation. Even if all the laws are codified, as has happened in Civilian [or Civil Law] countries, interpretation of the cold words of codified law become a matter of paramount importance in order to breathe life into them for the needs of adjudication of the moment.
"When a case is to be decided on the words of the codification, every lawyer will argue how these words will be interpreted in different situations and at different times. Various kinds of legal thoughts and philosophies will be brought in to bear upon the arguments for the purpose of persuading the court to accept the submission of each contending party. In this situation, when the court is not bound by any of its previous rulings, law becomes more uncertain. Then perhaps one can say with some justification that the court's decision could be due to psychological attitudes and emotions of the moment. But even here an allegation such as this is not absolutely true because judges do accept previous decisions for guidance, and move according to certain schools of thought.
"No better illustration can be found with regard to interpretation as part and parcel of the law than the Islamic legal system. This system consists mostly of the Quran and the Hadith (traditions of the Holy Prophet Muhammad, Peace Be Upon Him). The interpretation of these two sources of law is done according to the established and accepted methodology. Volumes of literature have been written as commentaries and exegesis of the Quranic Law and Prophet Muhammad's Hadith.
"In this situation, not only is the Judiciary bound by Islamic Law as propounded by jurisconsult (muftis, who give legal rulings in particular matters), but Parliament and the Executive, too, are certainly bound by these rulings.
"In essence these rulings are interpretations derived from the Quran and the Hadith according to the accepted methodology. Therefore, no legal system can ever escape the need for interpretation, be it a divine legal system or a secular system. For law is a concept clothed in language. It cannot be seen, but perceived through intellectual efforts and experience."
These thoughts aired at a function to launch a law book were, of course, rather academic in nature. By no means did they constitute a political speech. But conscious of the hostility displayed by the Executive at the time, I went out of the way to explain myself. In concluding my speech I said:
"..I make these remarks not in the spirit of confrontation, but as a clarification in the hope that whatever has been misunderstood will be clarified and passed over. I have remained silent far too long and in view of the criticisms intended against us, I feel I owe a duty to the public to make this clarification."
It was a carefully considered speech - a peace offering if you like because I was only too conscious of the sensitivities of the time. But if I thought that my peace-making gesture would bear fruit, I was terribly mistaken. For this same speech was to be resurrected to be used in levelling one of the so-called charges of "misbehaviour" against me. It was even used to support the vulgar argument that 1 was creating alarm and despondency among the non-Muslims in Malaysia!
In fact my argument, that the principle of the guardianship of the Constitution by the Judiciary has been made an issue, and that our independence appeared to be under threat, turned out to be some of the seeds of the coming storm.