Save the judiciary now – Part 2

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judiciaryThe Judiciary is still very much in the news in the aftermath of the general election. Mohd Ali presents the concluding part of his call to save the judiciary.

In a Foreword to the ‘May Day for Justice’ – Allahyarrham YAM Tunku Abdul Rahman, the beloved first Prime Minister, wrote:

“The book May Day for Justice tells the most shocking story in modern legal and judicial history.

Episode after episode in the book shows the spiritual corruption, the cynicism, the moral turpitude, the viciousness and the horrible ruthlessness which attended the exercise of falsely accusing him (Tun Salleh Abas), hastily putting him before a Tribunal of questionable character and quickly removing him from office.

I do not know how any honourable government can stay in office after this book has been published. It constitutes denunciation which cannot be answered without confessing to the most dishonourable conduct in public life.” (emphasis mine)


Justice Tun Mohamed Dzaiddin Abdullah, the recently retired Chief Justice of Malaysia, said as follows in a welcoming address at the Commonwealth Lawyers Association Conference in KL in March 2003:

“Judges as trustees must give account for their conduct. To be faithful to his Oath (of office) is the test of integrity as a judge. Implicit in this is that he must resist any influence or temptation. Indeed, independence is a vital component of a judge’s accountability, since a judiciary which is not independent, competent or possessed of integrity would not be able to give any account of itself.”

Past commissions of inquiries

The Suffian Commision on Salaries for Civil Servants in 1960s took more than two years to submit its reports. The commission interviewed more than 400 persons.

The Athi Nahappan Commission on Local Authorities produced its report in 1968. At the end of the Commission’s report is found a list of 315 persons, NGOs and other organisations who had submitted their views with written evidence.

The Harun Commission Report on Salaries and Conditions of Service of Local Government staff was also given sufficient time and wide terms of references. The Commission took more than two years to produce its report.

In contrast, the “Lingam tape” Commission is given only three months and the terms of references are so restrictive. By 4 February 2007, only 16 persons had been called to give evidence. The Commission should be free to invite evidence from members of the public. Many have been refused permission to give evidence.

His Highness the Sultan of Perak warns Judiciary to regain public confidence

In his address at the opening ceremony of the 14th Malaysian Law Conference on 29 October 2007, DYMM Sultan Azlan Shah among others things, said:

“In matters concerning the judiciary, it is the public perception of the judiciary that ultimately matters. A judiciary loses its value and service to the community if there is no public confidence in its decision-making. In this regard, the principal quality a judiciary must possess is “impartiality”. Lord Devlin said of “judicial impartiality” that it exists in two senses – the reality of impartiality and the appearance of impartiality. He emphasised that the appearance of impartiality was the more important of the two.

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Impartiality also means that judges are not only free from the influence of external forces, but also of one another. No judge however senior can dictate to his brethren as to how a decision should be arrived at.”

Judges’ character

With regard to a judge’s character he continued:

“It is of the essence of a judge’s character that he must be a person of unquestionable integrity who brings an unbiased mind to his task. Like Caesar’s wife, he should be above suspicion.

It is said that public confidence in the judiciary is based on four evaluating criteria. They are:

(1) the principle of independence of the judiciary;
(2) the principle of impartiality of adjudication;
(3) the principle of fairness of trial; and
(4) the principle of the integrity of the adjudicator.

How does our judiciary measure today against these criteria?

Sadly I must acknowledge there has been some disquiet about our judiciary over the past few years and in the more recent past. In 2004, I had stated that it grieved me, having been a member of the judiciary, whenever I heard allegations against the judiciary and the erosion of public confidence in the judiciary. Recently, there have been even more disturbing events relating to the judiciary reported in the press. We have also witnessed the unprecedented act of a former Court of Appeal judge writing in his post-retirement book of erroneous and questionable judgments delivered by our higher courts in a chapter under the heading “When Justice is Not Administered According to Law”. There are other serious criticisms.

I am driven nostalgically to look back to a time when our Judiciary was the pride of the region, and our neighbours spoke admiringly of our legal system. We were then second to none and the judgments of our courts were quoted confidently in other common law jurisdictions. As Tun Suffian, a former Lord President of the then Federal Court, said of the local judges who took over from the expatriate judges after Merdeka that the transformation was without “any reduction in standards”.

Judges are called upon to be both independent and competent. In these days, judges must ever be mindful that the loss of independence can come from many sources, and not just from the executive. Therefore, judges must piously resist the lure of socialising with business personages and other well connected people. They may discover at their peril that they have compromised themselves in the cases that come before them with the unedifying spectacle of recusal applications.

Nothing destroys more the confidence the general public, or the business community has in the judiciary than the belief that the judge was biased when he decided a case, or that the judge would not be independent where powerful individuals or corporations are the litigants before him. Confidence in the judiciary may also be eroded where the business community perceives incompetence in decision-making. It therefore becomes apparent, that our attempts to establish ourselves as a leading financial and commercial centre will fail, if we do not have a competent judiciary to decide on complex commercial disputes. In this regard, it is of utmost importance that the foreign investor has faith in the competence and integrity of our judiciary.

I know that judging is an arduous task calling for a good mind and a capacity for hard work. The inevitable consequence of incompetence is delayed judgments and backlog in cases leading to all round dissatisfaction.

Only last week, I read in a latest Malaysian law report that a case of medical negligence involving a death of a lawyer took 23 years to reach the Court of Appeal. Similarly there have been reports that some judges have taken years to write their grounds of judgments involving accused persons who have been convicted and languishing in death row.

Surely, such a situation cannot be tolerated in any progressive nation.”


Judges’ quality

DYMM Sultan Azlan Shah also touched on the qualities a judge should possess:

“This deals with a judge’s quality in decision-making. We in Malaysia live in a multi-cultural and multi-religious society. Our founding fathers accommodated this diversity into our Constitution that is reflected in the social contract, and saw this diversity as strength.

Judges in Malaysia must be ever mindful that they are appointed judges for all Malaysians. They must be sensitive to the feelings of all parties, irrespective of race, religion or creed, and be careful not to bring a predisposed mind to an issue before them that is capable of being misconstrued by the watching public or segments of them. I am reminded of the proud accolade of the late Tun Suffian in his Braddel Memorial Lecture in 1982, when speaking of the Malaysian judiciary to a Singapore audience he said:

“In a multi-racial and multi religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgment with our name deleted could with confidence identity our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot.”


Judiciary must regain the public’s confidence

I have found it necessary to speak at some length on these matters because it is my earnest hope that the Malaysian judiciary will regain the public’s confidence and it will once again be held in high esteem as it once was held.

The lawyers

It will also be appropriate for me to say a few words on lawyers. The administration of justice is not just the role of the judiciary. I had said previously in July 1984 on the occasion of a farewell dinner speech to the Bar Council on leaving office as the Lord President, that there cannot be an independent Judiciary without an independent Bar. I stated further that the judiciary cannot function without the legal profession. This symbiosis calls for a proper understanding of the relationship between the Bench and the Bar. The Bar and its leadership must ensure there is a high standard of integrity and ethics among its members. A Bar that is riddled with bad practices cannot assist the administration of justice.

This rule applies not only to litigants but also to lawyers. It is not just a matter of prudence and good practice, but fundamentally one of ethics. As is often said, there are good lawyers and bad lawyers. Whilst the majority of the lawyers discharge their duties as officers of the court with professionalism and dedication, there have been cases of some others who have brought disrepute to the legal profession. There have been allegations against some lawyers that in clear dereliction of their responsibilities, they have either misled the courts, or attempted to choose the judges or courts for their cases to be heard so as to obtain a favourable decision in their client’s favour. This is serious interference with the administration of justice and the process of the court.”


In a foreword to the Indian Commission of Inquiry Act 1952, Justice V.R. Krishna Iyer, the eminent Jurist of the Supreme Court of India, wrote:

“The Public Inquiries legislation is becoming an antiquated impotent and dubious instrument.

As Lord Scarman attested: it served a great purpose.

‘In all countries, certainly in those which enjoy freedom of speech and a free press, moments occur when allegations and rumours circulate a nation-wide crisis of confidence in the integrity of public life or about other matters of vital public importance … the confidence can be effectively restored only by thoroughly investigating and probing the rumours and allegations so as to search out and establish the truth… –

The Rt Hon’ble Sir Cyril Salmon – Tribunals of Inquiry at p.5’

To fulfil this function the measure now needs legislative surgery.”

The Malaysian Commission of Enquiries Act 1950 was originally adopted from a British law that has already been repealed and replaced by a new Act known as the Tribunals and Inquiries Act 1992 (UK). Malaysia must update our law as it is 57 years old and it is a colonial piece of legislation.

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