Non-independent Judiciary, Part 2

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Who can forget those famous words of wisdom from an unknown Rabbi that said, “We are what we are fed with.”?

If we have a proper upbringing and are taught to honour good values such as honesty and integrity, then chances are we will inherit good traits—but not always. Similarly, if we are fed ideas based on the wrong moral compass, then we may learn to become comfortable with all the wrong things and emulate all the wrong values.

It is not up to us to determine what we are fed with when we are young, but it is up to us to exercise control over it once we are adults. We can certainly do so now and make a difference to the Judiciary that we have. The greatest problem with our Judiciary today is not that there are not enough qualified or clever judges, but that they are too indifferent.

If you look at the deterioration in our Judiciary, you will see that it did not start suddenly, from out of nowhere. Many lawyers in private practice, for instance, have said for a long time now that the overwhelming number of lawyers from the Attorney-General’s Chambers who are elevated to the bench tend to be more pro-Government.

Those from the Government and the AG’s Chambers, meanwhile, say that private practitioners tend to be more sympathetic to the Opposition parties and NGOs. That’s why Prime Ministers are inclined to have more judges from the legal service (they probably make up 80 percent of judges now), and always insist that Malays take the top positions in the judiciary. That has always been the case since Tan Sri Ong Hock Thye was Chief Justice.

It’s natural for stakeholders in the system to give priority to their own future, which in this case has contributed to their indifference to justice itself. Some have discarded the noble idea that justice is blind, and that in the long run, it is better to have judges who are capable of dispensing justice fairly so that the country can benefit. But politicians would rather have some judges working in tandem to protect their political position and interest. In turn, some of these judges are willing to reciprocate if it serves their own future.

In our judicial system, it’s the politicians who determine if one gets elevated to the High Court. A friend was recently offered the position of High Court judge, only for the offer to be withdrawn when some politicians protested. My friend took this in his stride. I for one believe that it is better he remains the person he is rather than having to accommodate unsavoury politicians just so he can be called ‘Yang Ariff’.

It’s also the Prime Minister who determines if you get to be Chief Judge, President of the Court of Appeal or Chief Justice. Even after retirement, if one is looking to continue having the comfort of first-class travel and a few hundred thousands of ringgit a year in addition to one’s pension, one has to be in the Prime Minister’s good books.

In such a system, it is rare to find judges and lawyers who are willing to put their careers at risk by going against the wishes of the Prime Minister. It is difficult to keep justice uppermost in their considerations when the interests of the Prime Minister are involved. Judicial decisions where political interests are at stake suffer from acute partiality—and the culture of complete indifference to our justice system continues.

The Bar itself is not free from blame for the state of the Judiciary. Some of them appear almost daily to argue their cases on behalf of clients in ‘non-political cases’. They would get a fair hearing and probably the right decisions from the judges. These lawyers are quite happy not to raise the issue of political influence or the role of the Prime Minister in the judicial system. It’s understandable as they have to pay their staff and other business overheads, but nonetheless, their indifference contributes to the present state of affairs. Some senior lawyers also aspire to be judges, so they would rather not get involved in controversies, like the passing of resolutions that are unfavourable to the Chief Justice or the Prime Minister.

So that’s where we are today. Too much indifference allows for crooks to rule and for integrity to be sold to the highest bidder. In this land of plenty, where cash is king and where a single authority determines positions and promotions, it’s hard to expect ambitious men and women to shun the limelight. It’s hard to find those who are willing to risk being demoted or side-lined in the race for top positions and the perks that go with it.

Still, there are those who are willing to fight for an independent judiciary, no matter what it takes. There are still lawyers and legal academics who are as passionate as ever about seeking justice for all and working towards a better legal system. To them, I dedicate this piece. It is not death that kills us, but indifference.

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One Comment

  1. Marge Pinot
    Marge Pinot
    November 14, 2017 at 8:16 pm

    “But politicians would rather have some judges working in tandem to protect their political position and interest. In turn, some of these judges are willing to reciprocate if it serves their own future.”

    Recipe à la Mahathir!

    How can any decent Malaysian be expected not to pray that this destructive and villainous man not rot in hell for eternity??

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