Our non-independent Judiciary (Part 1)

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Unlike younger lawyers, I am fortunate to belong to the earlier generation of practitioners. My generation had the opportunity to know some outstanding legal luminaries: who can forget the mighty Tan Sri Eusoffe Abdoolcader, Tun Mohd Suffian Hashim, Tan Sri Ali Hassan, Tan Sri H.T. Ong, and Sultan Azlan Shah? They made us all proud to be lawyers. They spoke and behaved like good jurists. Reading their judgements, you can easily discern their intellect and the broad scope of their knowledge of the law.

They were good judges who were honest in applying their knowledge of the law. They were not afraid. When speaking to them, you knew that they had the character and the attributes of good judges — they never talked about exotic holidays or about joining corporations or Government-Linked Companies on retirement.

They talked only of the law, and this was apparent even in the jokes they made. They dispensed justice without fear or favour, and you felt assured of this although you might not have agreed with their decisions. I think we do not have legal personalities of comparable quality today.

“The Palace of Justice” is too pretentious a name for our court complex in Putrajaya. If we were from Mars and didn’t know that it was a court of law, we would think it was part of the Prime Minister’s Department (perhaps its “Judicial Section”).

Recent decisions flowing from the Court of Appeal and the Federal Court with respect to the “absolute power” of the Attorney-General — a power that cannot be questioned — as well as the absolute power and wisdom of the Election Commission in drawing up electoral boundaries as it wishes, and also the immunity the Government enjoys against claims for damages if your loved one gets beaten and dies in police custody — all of these decisions could easily have issued from a section of the Prime Minister’s Department. All of these decisions make me think that the Judiciary is no longer independent.

I wonder what motivates judges to conduct themselves in such a manner. Is it to please the Prime Minister, or are they afraid of him? Malaysian judges in the past — for example, Tun Suffian, Sultan Azlan Shah and Ali Hassan — were Malay and were sympathetic towards and understood the policies and aims of the Government of the day. However, they would never bend over backwards to help the Government achieve its political goals. They were never afraid of the Prime Minister.

Today, we still have good judges at various levels (and “good” here means someone who is not fearful of the Attorney-General’s Chambers and the Prime Minister’s Department), but the quality deteriorates as we move up the hierarchy.

The higher the position, the more vulnerable people become. This is the price we pay for our “Malay-first” policy. Most of those promoted to become judges come from the Attorney-General’s Chambers, and in-breeding does not generally help at all in the genetic growth of any species. The same fate awaits the Malaysian Judiciary.

It might benefit the Government if Malay lawyers in Government service were elevated to the Bench, but this does not necessarily improve the quality of the Judiciary or serve the cause of justice. Senior officers of the Attorney-General’s Chambers expect their promotions to the Bench as a matter of course, and that’s what actually happens in real life.

To some of them, being appointed a judge is a “reward” for “services rendered” — look at the list of the top judges and you will find that they generally share the same educational background and have served the same department for many years.

They will always say in their speeches that the Judiciary is a separate branch of government and that it is independent. Unfortunately, this is a hollow and meaningless phrase because their actions and conduct are not indicative of independence at all.

A Judiciary that relies on outdated legal principles to defend the Government — such as allowing the Attorney-General absolute power that cannot be questioned, or ruling that those who die in police custody cannot get exemplary damages, or deciding that travel is a privilege and not a right, or that the Government can pick and choose what book to ban, or that everything the Election Commission says about boundaries is correct regardless of what voters think — these are not the marks of an independent Judiciary.

It’s not a Judiciary we can be proud of. It’s a Judiciary that sucks.

Look at how the Judiciary dealt with the travel ban on DAP MP Tony Pua. It had no imagination and showed no sign that it was willing to examine past cases because times have changed and the needs of the country have changed.

If Tun Suffian said in 1970s that liberty had a restricted meaning — that it was restricted to being free of detention and arbitrary arrest, and did not extend to the right to travel — an independent-minded Judiciary would look carefully if that principle still holds true today.

In the 1970s Tun Suffian dealt with the reality of the communist insurrection and the aftermath of Konfrontasi as well as of May 13, 1969. It was not the time to talk freely of personal liberty. Circumstances compelled him and other judges to take a more restrictive view of freedom.

We are now in 2017. Surely independent-minded judges should see things differently. Citizens, especially MPs, must be given the liberty to travel to wherever they want. That’s a rule that is applicable everywhere in the world except North Korea and Malaysia.

Liberty and freedom need new meanings, as in other democracies. I can only conclude that an independent Judiciary is one that has the ability to identify an abuse of power when it happens. When judges see such abuse and do nothing about it, then that’s not even a Judiciary but the judicial section of the Prime Minister’s Department.

The people of this country must not be afraid to criticise this non-independent Judiciary. The only way we can stop the rot and return respectability to our legal system, and to serve the best interests of the people, is to start an open dialogue in the public sphere about our Judiciary.

We can freely talk about their decisions and how well they practise the judges’ code of conduct. We can talk of how they get promoted, their lifestyles, how they spend their golfing holidays, or if they ever signed up for a law conference overseas but skipped the conference when it suited them.

These are permissible criticisms because judges are public servants. Do not worry about contempt of court. Instead, worry about what will happen to our country if this is left unchecked.

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One Comment

  1. Joe
    November 11, 2017 at 5:45 am

    The judiciary will be tested even more with Zakir. Naik’s attempt to prevent extradition. If the judiciary protect this proven terrorism agitator, criminal and con man, then the rot is not merely quality but rather ideologically corrupt. Fact is we have a significant population already that including Perkasa, add judiciary and frankly Najib era is proven moral political bankruptcy.

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