Source: In Good Faith (Kuala Lumpur: Zaid Ibrahim Publications, 2007)

…Our Judiciary is in dire straits. The assault on the our judiciary of 1988 rankles in our minds and psyche. The present government is still reluctant to acknowledge the problems the judiciary is facing. The government remains unwilling to seek forgiveness for the wrongs it committed against Tun Salleh Abbas and the other judges. It is still in denial mode by not addressing the need for a dynamic and independent judiciary, and resisting an overhaul of the existing system.

Any government would like to say that its judiciary is independent. But we know that such an assertion may not always be true. We also understand that if we want to live in a democracy and continue to have some freedom, then we must have a courageous and independent judiciary. If we want protection from abuse of power, then we must preserve the rule of law, and only an independent judiciary can assure us of this.

…there are no two ways about this: an independent judiciary is sine qua non (without which, not) to a real democracy.Of course, there are those in government who do not want an independent judiciary. They prefer a compliant one–a judiciary that will serve to protect the interests of the powerful. That is why over the decades, we see this tussle between those who walk the corridors of power, and those who wish to limit, temper and balance the expansive power of the executive.

Power, as you know, is addictive and it gets to our head. What more when someone has absolute power. James Madison was instrumental in securing the independence of the US (and writing its Constitution). He said that the problem where men govern men is two-fold. First, you have to ensure that the government has the capacity to govern and is in control. Otherwise, anarchy will follow. Equally important is that the same government obliges itself to some control and limits. If not, it will be a dictatorship.

Finding the right balance to maintain order and civility and yet at the same time being responsible and accountable to the people is a difficult and challenging process. It is for this reason that Montesquieu advocated the separation of powers between the various organs of government (namely, the legislature, the executive, and the judiciary). It is left to the judiciary to be the wise arbiter of these limits: to protect the interests of the people by upholding the law and the country’s Constitution.

So, to determine if truly have an independent judiciary, we have to pass the following tests. The first test is to examine if the appointment and promotion of our judges can withstand the test of impartiality. The manner in which judges are appointed and promoted has a direct impact on their independence.

Our existing system is outlined in Article 122B of our Federal Constitution. In a nutshell, the Chief Justice nominates a few names to the Prime Minister and they both decide a name to be approved by the Conference of Rulers. Any consultation is confined to only to the President of the Court of Appeal and the Chief Judges of the High Courts. In practice, we really do not know how the selection process is conducted. It is all shrouded in secrecy.

The selection process must be based on transparent criteria. The judiciary should be filled by lawyers or judicial commissioners who have excelled in a particular field of law. And that excellence must be acknowledged by their peers. Do some of our judges and judicial commissioners pass this test?

As it is, we know very little of the selection criteria apart from the requirement that the candidate must have been in legal service or practice for at least ten years. Membership of the Bench over the years seems to be dominated by those in the government’s legal service. Why is it that so few from the Bar are selected? Are legal practitioners unworthy of selection? In other jurisdictions, the majority of judges come from the pool of legal practitioners of some years (especially in England).

By expertise we are not merely referring to paper qualifications but also to the experience of appreciating the effect the law has in daily life. Practitioners at the Bar have that invaluable experience. Why then does 85 per cent of our judges come only from the Judicial and Legal Service Department of the government?

Not surprisingly, public confidence in the Malaysian judiciary remains very low. To restore public confidence in and integrity of the judiciary to its pre-1988 glory, the first step is to implement a transparent system where only the best qualified with the best temperament are selected. To reinforce the impartiality of this mechanism, it should be administered by an Independent Judicial Commission.

The Chief Justice has a lot to do these days. He has administrative work to attend to and has to travel extensively. He is also expected to write good judgements on those cases on which he presides. How then is he to know who is the best available candidate? What we need is a body of qualified men and women who can sit together to sift through the qualifications and other attributes required of a judge. They would also need a transparent system and a structured process to properly execute the task.

Equally important in the equation of judicial independence is the need for ‘brave’ judges. Even if only meritorious candidates are appointed or promoted within a transparent framework and structurally conducive enironment(security and god support structure), what matters most is how judges live up to their oath of office: “to preserve, protect and defend [the] Constitution” when they have to decide difficult cases.

Whatever the reason may be, our judges must remember that they owe allegiance primarily to our Constitution, and their responsibility is to interpret the law. Our judges must be courageous and honest in protecting the Constitution even if this means that he or she stands alone, like ‘the great dissenter’, John Marshall Harlan II. This great man epitomises judicial integrity. At a time when slavery and inequality were socially, politically and legally encouraged in the 19th century America, Justice Harlan stood firm as the lone dissenter in Plessy vs Ferguson (1896). He called for equality before the law, stating that the US Constitution is “colour blind,” treating man as man, with no regard to his surroundings or his colour.

It is the controversial and complex cases that test the courage and judicial integrity of our judges. The ‘crunch’ is not unique to Malaysian judges but applies across the board to all judges in various jurisdictions.

In the 1990s, judges in the Supreme court of India were confronted with a case that pitted Muslims against Hindus and vice versa. The gist of the case was this: On this plot of land stands the Babri Mosque but the Hindus claim it is the original site of the Temple Rama, which was destroyed to erect the mosque.

Resolution is still pending, but as this case has journeyed through the Indian justice system, judges have been subjected only to public pressure (India’s Hindu population is 80.5 percent compared with 13.4 per cent Muslims), but also from then ruling government–namely the Bharatia Janata Party (a Hindu Party). The state govenment of Uttar Pradesh threw their weight on the Indian judiciary to pressure them into allowing the excavation of the mosque and for Hindu religious rites to be performed on the site. But the judiciary stood firm.

In Brown vs Board of Education (1954), the US Supreme court ruled that segregated public schools were unconstitutional. Brown, an African-American, had sought lega redress when his seven-year old daughter, Linda, was refused admission to an all-White elementary school in a town where they lived. Though the Civil Rights Movement was active, the atmosphere then was very much for segregation. But the Supreme court did not give in to public and political pressure. In stead, it reversed its previous decision (which had advocated the ’separate but equal’ doctrine), thereby changing the history of US constitutional law and protecting the rights of minorities, according to principles of the law.

In the infamous Watergate scandal, judges in the US Supreme Court unanimously stood against the (then) most powerful man in the world: Richard Nixon, US President. The Supreme court ordered that the President hand over audiotapes in the Ova Office which were believed to offer evidence on the executive’s alleged involvement in the scandal. The Chief Justice, Warren Burger, asserted that deference to executive privilege is conditional, because the system of checks and balances prohibits any absolute claims of executive privilege…

The final test is whether our judges are legal experts. An independent judiciary would be meaningless if judges were incompetent in applying the law. For the judiciary to inspire public confidence, its membership must reflect excellence. Lawyers who are deemed distinguished legal specialists by their peers and the Bench would then feel honoured to have been selected.

Our judiciary needs to be staffed by top-notch, first class judges who are knowledgeable in the law with the necessary attributes to ensure that the law is applied justly and timely: attributes like conscience, insight, a sense of balance and proportion. Perhaps we should draw from what Viscount Kilmuir, the former Lord Chancellor of England, said 50 years ago in his address at the University of Malaya in Singapore.

He articulated the attributes of “intellectual ability” because no amount of integrity will compensate for the incapacity to comprehend the law. He said a judge must be “courageous” and have the ability of not being blinded by personal prejudices.

Last and definitely not the least is “integrity” and he went on to describe what I believe is lacking in our judiciary: integrity to Viscount Kilmuir, extends beyond not taking bribes but includes more subtle “integrity of the intellect” which means never advancing a dishonest argument,or shirking awkward facts just because they raise difficult problems.

Our judiciary was once a beacon of judicial independence and integrity. Judges then were neither beholden to any government nor owed loyalty to ministers. They owed their alleginace only to the Constitution, the principles of justice and public interest…

To quote Lord Devlin: “The prestige of the judiciary and their reputation for stark impartiality is not at the disposal of any government; it is an asset that belongs to the whole nation”.

Zaid Ibrahim is a lawyer by profession and a UMNO-Barisan Nasional Member of Parliament. He is known for his dissenting views on issues affecting our country. He is unique because unlike his colleagues he is not afraid to speak his mind, which, according to Tun Musa Hitam in his forward to the book, In Good Faith , “may put Zaid in hot soup where he will be criticised and even maligned by some, simply for his frank disclosure on matters that are crucial to the future of Malaysia”.

I deem it timely to put Zaid Ibrahim’s piece on the Judiciary on my blog because the Royal Commission on the Judiciary which was established recently to investigate the authenticity of the Lingam video clip released by Dato Seri Anwar Ibrahim, the de facto Leader, Parti KeADILan Rakyat, would be meeting soon. It is hoped that the Haidar Commission (I name the RCJ after its Chairman, Tan Sri Haidar Mohamad Noor) will go beyond to the videoclip to recommend steps that will be needed to restore judicial independence, integrity, and to stop the rot in our justice system.

For those who are interested Zaid’s articles, essays and interviews, I recommend you buy In Good Faith which is available in all major book stores. All proceeds from the sale of this book will fund the activities of Yayasan Orang Kurang Upaya Kelantan (Kelantan Foundation for the Disabled).–Din Merican

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