Zaid Ibrahim: You have a Tough Job to reform the Judiciary

by Din Merican

On January 2, 2008, I posted extracts of Zaid Ibrahim’s article (below) which was republished in his book, In Good Faith. The article was written when he was outside government. His status has changed since.

On March 19, 2008, Senator Zaid Ibrahim was appointed a Minister in the Badawi Cabinet to be in charge of legal affairs and judicial reform. His first interview since taking on this responsibility appears in the New Sunday Times (March 23, 2008). It is too early to tell what he can actually do given the constraints he will have as a member of the Cabinet and being in the Prime Minister’s Office with Minister Nazri Aziz (in charge of matters of Parliamentary Affairs) who has this urge to blabber and antagonize the intelligent Malaysian public. I am, however, prepared to keep an open mind and extend my good wishes to Senator Zaid for a successful stint in the Badawi II government.

I wish, however, to remind him that we are waiting for the release of the report of the Haidar Royal Commission of Inquiry on the Lingam video clip to know what its recommendations will be. I also hope the report contains fresh ideas and proposals to stop the rot in our judiciary. But the mumble that is emerging in Zaid’s interview must stop. Of course, change is painful and risky but necessary. It requries political will which is in short supply since Badawi took office as Prime Minister in 2004.

The idea of his recommending that the repressive BN government should say “sorry” to former Lord President, Tun Mohamed Salleh and his five fellow Judges and their families is not enough. There must be some kind of restitution to these men of integrity and honour who were victims of crude politics. The humiliation and agony they and their families suffered can never be fully compensated, but there must be a genuine, visible and tangible expression of regret. Appropriate financial compensation and the restoration of their rights and entitlements must also be considered.

I am personally curious why Zaid Ibrahim had chosen to remain silent in his interview regarding Anwar Ibrahim who was imprisoned for 6 years in Sungei Buloh on what is now accepted as trumped-up charges by a powerful UMNO-Barisan Nasional Prime Minister in a kangaroo court presided by a judge who was far from impartial and independent . Anwar and his family were humiliated and they suffered untold hardships and must be compensated. In my view, any move to reform the judicial system must start with cleansing it of the injustices of the past.

Will Zaid Ibrahim have the courage of his conviction— as clearly reflected in his writings— to recommend to the Prime Minister and his Cabinet to efface the ghost of past unjust repression against Tun Salleh Abas, Justices Azmi Kamaruddin, Tan Sri Eusoffe Abdoolcader,Tan Sri Wan Hamzah Mohamed Salleh, Tan Sri Wan Sulaiman Pawanteh and Dato George Seah and Anwar Ibrahim? Perhaps, he should heed the Bar Council’s call in 2006 for an impartial review of the 1998 Judicial Crisis and, in addition, the Anwar Ibrahim’s trials that followed after his removal as Deputy Prime Minister cum Minister of Finance by Tun Dr. Mahathir bin Mohamad in September of the same year.

I have one final question to ask Zaid Ibrahim and that is, will he resign from the Cabinet if he fails to carry out his duties as Minister with responsibility for judicial reform. The proof of the judicial pudding is still in its eating!

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 allegiance 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”.