TOWARDS A IMPARTIAL, INCORRUPTIBLE, AND INDEPENDENT JUDICIARY
When in December 2000 , Tan Sri Hj Mohd Dzaiddin Hj Abdullah was appointed as the Chief Justice of the Federal Court, and hence the head of the Judiciary, the Bar Council had great expectations of him to rejuvenate the Malaysian Judiciaciary Ever since 1988 Judicial Crisis which saw the then Lord President and two Supreme Court Judges dismissed, the Malaysian Bar never placed any great hope in the Dzaiddin’s two predecessors.
But recent two events have caused the Malaysian public to question whether their hopes and aspiration for a renewed Judiciary with greater commitment to justice and the Rule of Law have been misplaced
Firstly, the recent Federal Court decision of the Anwar Ibrahim’s corruption case, which from a public perception was the affirmation of the High Court decision, a decision which was criticized not only by the Malaysian Bar but also international observers and groups. Some of the criticisms and concerns about the High Court trial of the former Deputy Prime Minster included the choice and manner the judge chosen came to hear the case; refusal of bail; the expunging of evidence given on oath; the perventing of the accused from raising every possible and conceivable defences; compeling the defence to state beforehand what evidence the defence sought to adduce through various witnesses; disallowing witnesses from testifying and the making of rulings as to relevancy without first hearing their testimony and the citing and threathening of defence lawyers with contempt proceedings including the sentencing of one of them for three months for contempt while in the exercise of his legal duties to his client.
Secondly, there was the more spectacle initiated by comments of a High Court Judge, while delivering a judgment in an accident matter in the Penang High Court, about his perception on how a certain Court of Appeal Judge have been treating him through judgments. In part of a written judgment, Justice R.K. Nathan accused Court of Appeal judge, Gopal Sri Ram of making personal attacks against High Court judges, and had targeted him (Nathan) for personal vilification in open court.
It may be good to recap briefly
the history of the Malaysian Judiciary, in particular the events that led to
slide in the public confidence of the Judiciary.
THE ROLE AND FUNCTION OF THE JUDICIARY
The Judiciary is the third arm of the government, whereby the other two are the executive and the legislative. In a true democracy, it is essential that there should separation of powers between these three arms. Simply put, the legislative(the Parliament) makes the Law. The executive(the Prime Minister and the cabinet) administers the affairs of state according to the Law. The Judiciary ensures that all is and was done according to the law. The doctrine of separation of powers ensures that there be a system of check and balance, and that there is no abuse of powers.
“The court stands as an arbiter in holding the balance between individuals and between the state and the individual, and will not have the slightest hesitation to condemn or strike down any statutory shelter for bureaucratic discrimination, any legislative refuge for the exercise of naked arbitrary power in violation of any of the provisions of the Constitution and equally any executive action purported to be made there thereunder”
These were the words of the late Justice Eusoffe Abdulkader, a well respected judge, taken from the judgement of the Datuk Harun bin Haji Idris case reported in 1976 sets out clearly the role of and what was expected of the judiciary in Malaysia.
JUDICIARY MUST BE INDEPENDENT AND WITHOUT FEAR
To carry out its functions , it is essential that the Judiciary be independent, and that the Judges be concerned only with upholding the cause of justice without fear or favor. The words of Sultan Azlan Shah, a former Lord President (or Chief Justice as the office is now called), in 1986 during a Public Lecture in Universiti Sains Malaysia, adequately explains the need for judges to be independent,
“..The Judges are independent of all - the executive, Parliament and from within themselves - and are free to act in an independent and unbiased manner. No member of the Government, no Member of Parliament, and no official of any Government department has any right whatever to direct or influence the decision of any of the judges. It is the sure knowledge of this that gives the public confidence in the judges. The judges are not beholden politically to any government...”
In fact, at one time the Malaysian Judiciary was held in very high regard. The Chairperson of the Malaysian Bar in 1963, Datuk SM Yong, had this to say about the judiciary:-
“...every person, whether he is rich or poor, high or low, of whatever race, color or creed is equal in the eyes of the law. Justice will be administered without fear or favor...[and for this] we must have an impartial, incorruptible, and independent judiciary. Our Federal Court is such a judiciary.”
1988 JUDICIAL CRISIS
Wu Min Aun in his article entitled ‘Judiciary at the Crossroads’ published in the book by Longman entitled Public Law in Contemporary Malaysia (an article which I have also relied on heavily in this article) best explains in brief the events that led to the erosion of public confidence in the judiciary.
“Public confidence in the judiciary started to slide when the executive commenced its attack as a result of several decisions which went against the government. Political rhetoric surrounding the amendments to Article 121 of the Federal Constitution merely exacerbated it. It deteriorated further when the Lord President and two Supreme Court judges were dismissed...”
THE AYER MOLEK CASE
Then there was the controversial Ayer Molek Rubber Co case, which saw the Court of Appeal criticize strongly the decision of the High Court. The Court of Appeal even went so far to say that from the facts, it may “....give the impression to right thinking people that litigants can choose the judge before whom they wish to appear for their case to be adjudicated upon...” The Court of Appeal pointed out the judge had ignored provisions of the law, and also seemed to allege that injustice was perpetrated by the court.
Then the Federal Court, upon further appeal, not only overruled the Court of appeal judgment but “...also berated the appeal judges for “bringing the administration of justice into disrepute”. The Chief Justice, Tun Eusoff Chin, in delivering the judgment of the Federal Court asked:-
“...why should the learned judges of the Court of Appeal go on a frolic of their own and find fault with the High Court judge, criticize the conduct of the applicant’s solicitors in a very disparaging manner. Their own conduct would tend to show that they were themselves biased...”
Wu Min Aun in his article also has this to say:-
“The Malaysian Bar ...[claimed] that the Federal Court was not properly composed in accordance with the constitution. It pointed out that one of the panel members, a High Court judge, was not qualified to sit on the Federal Court bench. It was argued that apart from its permanent judges, only Court of Appeal judges could sit as Federal Court judges if the Chief Justice nominated them. The revelation that the Federal Court might not be properly constituted added fuel to further speculation that there might been an elementary mistake at best and “stacking” of judges at worst. Whichever it was, the case did enormous damage on perception of the judiciary as an impartial adjudicator.”
The New Straits Times (3/9/1995, p.13) also stated in an article that “...questions are already being asked as to why the courts and judges are speedy in hearing commercial cases, especially when big companies and big businesses were involved, and the apparent ease with which parties choose which courts to go and which judge to seek out...This is inevitable when thousands of criminal and civil cases have been held up for years. Some remand prisoners have to languish in jail for years while waiting to stand trial.”
POISON PEN LETTER
I again quote Wu Min Aun’s article: “Then, in early 1996 a thirty-three page anonymous document alleging judicial misconduct surfaced. It was circulated among the legal fraternity accusing several judges of corruption, abuse of powers and personal misconduct. It was an extraordinary document containing 112 allegations comprising of 39 charges of corruption, 21 of abuse of power and 52 of misconduct, immorality or other indiscretions. It claimed corrupt payments of RM50,000 ringgit, with recipients graduating to accepting millions from named persons.” In July of the same year, the Attorney General came out and stated that police investigations had revealed that the allegations contained in the poison-pen letter were “wholly untrue and baseless”
CJ HOLIDAYING WITH A LAWYER
To ensure the independence of the judiciary, it is essential that the conduct and behaviour of a judge would be such as to not give rise to suspicion that he is not impartial. In early 1998, when the photographs of Tun Eusoff Chin, the then Chief Justice of the Federal Court, holidaying with a lawyer, who also had appeared before the same judge, was published on the internet, it was a matter of public concern.
Later, in mid-2000, the Minister in the Prime Minister’s Department, Datuk Dr Rais Yatim, in response to a a question about a photograph showing the Chief Justice that it had been intimated to the Chief Justice that this was improper behaviour and that such socialising was not consistent with the proper handling or behavious of a judicial personality. Calls for more serious action to be taken were not heeded.
JUDGE RECEIVES “DIRECTIVE”
In June 2001, High Court Judge Datuk Muhammad Kamil bin Ahmad had stated in his judgment, when declaring the State election held in March 1999 for the Likas, Sabah, Constituency null and void, that he had received a directive over the phone to strike out the two election petitions without a hearing. The Malaysian Bar viewed this as an “affront to judicial integrity and independence of the learned judge and the Rule of Law” and called for action by the authorities concerned but alas nothing came out of that call.
FEDERAL COURT DECISION OF THE ANWAR IBRAHIM’S CORRUPTION CASE
Following the Federal Court decision, dismissing Anwar’s appeal, Mr Mah Weng Kwai, the President of the Malaysian Bar was quoted to have said in the Malaysiakini (a internet-based newspaper) report “But the Court of Appeal had found no miscarriages of justice and so did the Federal Court today. Anwar’’s trial has gone through the due process of law, and we need to respect the decision of the court” He was further quoted to have said, “If Anwar’’s supporters, the reformasi group or the public feel that the court has been unfair, the general election is the best avenue for them to show their discontent,”
For this statement, Mr Mah was barraged with criticism from members of the Bar, the Kuala Lumpur State Bar Committee and even NGO and political parties. Calls were made for his resignation.
Six days later, Mr Mah issued another statement, which was in line with Malaysian Bar’s position taken in 1999. Mr Mah withdrew his earlier statement, stating that it was merely his personal comment, meaning that it was not a statement of the President of the Malaysian Bar. In the second statement the Malaysian Bar expressed its dissatisfaction on the ““unusual manner in which the trial itself was conducted””. This was consistent with statement issued by Mr R.R. Chelvarajah in his capacity as the Chairman of the Bar Council on 17-4-1999.
Mr Mah is only human, and is not infallible. He made a mistake, and it must be pointed out that previous presidents of the Malaysian Bar have also made mistakes before.
Mr Mah was the “soft target”, but in essence all this attack on his statement was an expression of lawyers and members of the public of their dissatisfaction of the Federal Court decision.
The question raised by the Kuala Lumpur Bar Committee newsletter when Tan Sri Hj Mohd Dzaiddin Hj Abdullah was appointed as the Chief Justice of the Federal Court, that is “Can Dzaiddin Deliver?” now must be asked again.
RE-ARRESTED AFTER HIGH COURT JUDGE ACQUITS
The action of the police re-arresting 10 men who were acquitted by the Ipoh High Court on 31-7-2002 of the quintuple murders. The police used the Emergency (Public Order and Prevention of Crime) Ordinance 1969, a preventive detention law with similar powers like the infamous Internal Security Act(ISA), to arrest these men. Like the ISA, after 60 days, the Minister can issue a 2-year detention order.
These 10 men were charged and tried in open court, The High Court Judge after considering the evidence before the court acquitted them. The action of the police is a act of “disrespect” to the High Court and the Judiciary. Is this symptomatic of the “slide in the public [or police in this case] confidence of the Judiciary”
A IMPARTIAL, INCORRUPTIBLE, AND INDEPENDENT JUDICIARY
The Judiciary is made up of the High Court Judges, the Court of Appeal Judges and the Federal Court Judges, and as such maybe to place too high an expectation on merely the Chief Justice of the Federal Court, the head of the Judiciary, to stifle the slide of public confidence in the Judiciary is wishful thinking.
At the same time, judges, once appointed to office must understand that their role and duty to act in an independent and unbiased manner and to treat every person, whether he is rich or poor, high or low, of whatever race, color or creed as equal in the eyes of the law. Judges must act without fear and favour in the administration of justice. Of course, when they are true to their office, they may be subjected to persecution from certain quarters. They may be transferred to courts in ‘far places’. They may never be elevated to higher courts. They may be victims of false charges. They may be removed from office. Come what may, judges must be true to their office and calling.
The Malaysian Judiciary, unlike the legislative (Dewan Rakyat only) and the executive, are not directly elected by the people. The Judiciary are appointed. In some countries, there is elections of the members of the Judiciary. Maybe, it is time for us to seriously consider whether the constitution need be amended to allow judges to be elected.
Even when it comes to appointment of judges, there is a shroud of secrecy about the new appointees until the very day of appointment. Maybe, there is a need to consider whether names of future judges and/or judicial commissioners should be made public, and public objections be invited and considered before appointing .
With the advent of the Internet, there has been an increase of public criticisms of judgment and judges, and this, I believe, is important and necessary to stimulate judicial reform and improvements in the administration of justice and to forge an impartial, incorruptible, and independent judiciary for Malaysia. The words of the respected Lord Denning support my contention:-
“It is the right of every man, in Parliament or out of it in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decision erroneous, whether they are subject to appeal or not. All that we ask is that those who criticize us will remember that, from the nature of our office, we cannot reply their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what is right’.
-Lord Denning, in the case of Blackburn(No.2) Exparte R -v- Metropolitan Police(1968)2 All ER 319, at 320
It is most easy to give up hope on our Judiciary, but if we do so all is lost. What we need to do now is to seriously strive for reforms that will re-instil public confidence in the Judiciary.
Charles Hector
19 August 2002