The Court must fulfil its responsibility to right an injustice, no matter how difficult or divisive the issues are, asserts Ragunath Kesavan.
The Malaysian judiciary has in recent years undergone well needed rejuvenation, and there was fresh impetus under the former Chief Justice, Tun Zaki Azmi to push for reform in the delivery system within the judicial system.
The introduction of court-mandated mediation, court recording transcription services, structured and uniform case management directions, and the New Civil Courts and New Commercial Courts have increased the efficiency of our judiciary.
These changes, by and large, have been welcomed by the legal fraternity. The courts had been plagued with problems of public distrust and disdain of the judiciary for reasons of judicial indiscipline, alleged corruption even at the highest level of the judiciary, judge fixing, an administration system that had not been revamped for decades, inconsistent case management styles and directives issued at the whims and fancies of each judicial officer. The appointment of three inept and unacceptable chief justices post-Tun Salleh Abas led to the near complete breakdown and destruction of our judiciary.
Some form of discipline, order and direction needed to be instilled in the judicial system.
However, reform, including the pace of such reform, must always be in tandem with the needs of all stakeholders, including the capacity of the judges, lawyers and court system. Speed alone cannot be the sole and overriding factor, for there must be no miscarriage of justice in the prompt completion of cases. In the matter of postponements and adjournment of cases, it is a critical part of the individual independence of judicial officers that they have sole control of cases before them, including the discretion whether or not to grant an adjournment because they must be guided by the need to do “substantial justice” between the parties.
The criminal justice system requires a much more detailed and tempered approach. The problems faced there are considerably different from those of the civil courts and expediting hearings may not entirely be in the public interest, if this results in more instances of acquittals or an accused is denied the right to a proper and full defence.
The paramount objective of the administration of justice must be to achieve qualitative justice in every instance. An excellent justice system requires a combination of a fair conduct of cases, their prompt disposal, and well-reasoned decisions so as to ensure that justice is done and seen to be done.
The reforms that have been implemented have resulted in a significant improvement in the quality of the administration of justice. The Bar welcomed such changes even though disagreements are bound to exist from time to time.
The role of a judge as an arbiter of disputes and the custodian of the Federal Constitution requires independence of thinking and fearlessness of character. It is a high challenge and a very lonely pursuit. A judge must be independent, impartial, conduct him or herself with integrity, act with propriety and must at all times ensure equality of treatment to all before the courts.
Our judges, in taking their oath of office set out in paragraph 1 of the Sixth Schedule of the Federal Constitution, undertake to “… faithfully discharge [their] judicial duties in that office to the best of [their] ability, that [they] will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution.”
The judiciary must boldly uphold this duty to adjudicate any dispute before it guided solely by the Federal Constitution. In all such deliberations, the underlying principles of the rule of law must remain fundamental and omnipotent.
In many jurisdictions, it is the Courts that lead in expanding the rights of individuals and curbing the excesses of the executive. In 1995, the South African Constitutional Court in the celebrated case of The State v T Makwanye and M Mchunu held that the death penalty breached the “right of life” provision contained in Section 9 of the South African Constitution. Significantly, the Court did not abdicate its constitutional role and leave it to the legislature to abolish the death penalty.
An independent judiciary is an indispensable element of a working democracy as it is not beholden to constituents who elect it into office. There are no shackles of loyalty to any particular group, and therefore the Judiciary can and must fulfil its primary duty of upholding the Federal Constitution. Judges must rule on the basis of the law within the context of the Federal Constitution, and must not be influenced by public opinion; they must be indifferent to the pressures of the times.
We have our own challenges: Shamala Sathiyaseelan v Dr. Jeyaganesh C Mogarajah was a matter before the Federal Court involving essentially conflict of laws between the separate jurisdictions of Syariah and civil laws, in respect of the custody and guardianship of children arising out of the conversion of one spouse to Islam.
This matter presented the Court with a clear occasion to resolve fundamental questions that affect public interest. The Federal Court refused to decide on the matter on the basis that Shamala, by leaving the jurisdiction with her children, was in contempt of an earlier High Court order giving the father the right of access to the children.
The Federal Court abdicated its role as the ultimate arbiter in this dispute. Politicians have dithered and wavered in looking for a solution, pandering to various interest groups. The Federal Court missed this opportunity to lead the way and set down the law in accordance with the Federal Constitution.
The Judiciary ought to have stepped in to fill the legal lacuna. The Court must fulfil its responsibility to right an injustice, no matter how difficult or divisive the issues are.
Right to fair trial
In PP v Anwar Ibrahim, the Federal Court rolled back statutory amendments, introduced in Section 51A of the Criminal Procedure Code to augment the rights of accused persons. By enacting this provision, which imposes a statutory duty on the prosecution to provide documents to the defence prior to the commencement of trial, Parliament made plain its intention to level the playing field between the prosecution and the defence.
In a regrettably regressive decision, the Federal Court refused to allow the defence access to documents other than the usual basic documents that would have been required prior to the amendments. The full and timely disclosure of documents and statements would surely assist in the speedy disposal of a trial. More crucially, courts must exercise their discretion in favour of enhancing an accused person’s right to a fair trial and increasing transparency and fairness in the country’s criminal justice system. Non-production of documents and information merely gives rise to the perception, in the public mind, of a cover-up and does not assist in enhancing public confidence in the criminal justice system.
It is important to accept and understand that the duties and obligations of a judge are governed by their oath of office to at all times to uphold the Federal Constitution not only in name but also in all its essence including the spirit of the formation and intention of the forming of the Federation.
Whenever politicians dither, the Courts have a greater role to intervene to resolve disputes without fear or favour in accordance with the Federal Constitution.
Ultimately the Federal Constitution is the essence of the rules and regulations that govern the relationship between the government and the people. The Courts must at all times preserve and promote democratic rights keeping in mind that the essence of democracy, in which the government whatever its political composition is bound by, is a higher set of rules embodied in a constitution. Although democracy is based on the principle of the rule of the majority, at the same time democracy also requires that the rights of minorities are safeguarded.
Ragunath Kesavan is a former president of the Bar Council.