The New Brooms in Malaysian Judiciary

October 23, 2011

by Malik Imtiaz Sarwar*

We have a new team heading the judiciary. Congratulations to Chief Justice Tan Sri Arifin Zakaria, President of the Court of Appeal Tan Sri Md Raus Sharif and Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin. They are all men with many years of experience in the judicial and legal services.

Seize the Moment for Change in Judiciary

They are also men who, having started their careers as judges in the High Court, have had the opportunity to gain invaluable insights into not only the mechanics of being a judge, but also the workings of the High Court, the Court of Appeal and the Federal Court. I believe they are fully equipped to deal with the challenge of managing one of the most important institutions of the nation and I wish them well in their endeavour.

It is my hope that these three judges and their colleague, Chief Judge for Sabah and Sarawak Tan Sri Richard Malanjum, see in this “changing of the guard” as the opportunity that presents itself to make inroads into restoring public confidence in the judiciary and seize it. For this to happen, however, they must acknowledge, even if only to themselves, that public confidence is not a high as it ought to be and as it was in the late 1980s,and that steps need to be taken to address the situation.

In some quarters, there are those who, admittedly somewhat cynically, suggest that although in the early days of the new appointments there will be some attempt to play to the gallery, such efforts will soon fade into obscurity. Frankly, our experience at the Bar hints at the possibility. Since I was admitted to the Bar, I have seen five chief justices come and go. Each one came in with promises and assurances. And although each of them let an indelible mark on the judiciary and the administration of justice, I cannot say that the legacy they left behind was always in the interests of that august institution of the nation.

Chief Justices have come and gone but no serious reforms

The appointment of Tun Hamid Omar as Lord President was controversial; he chaired the tribunal that impeached Tun Salleh Abas. Tun Hamid retired amid allegations of impropriety. Tun Eusoff Chin retired amid controversy with the now infamous holiday in New Zealand darkening the cloud hanging over the judiciary.

Although Tun Dzaiddin Abdullah acknowledged that public confidence was at an all-time low when he was appointed to head the judiciary, I cannot say that the institution radically improved under his stewardship. Tun Ahmad Fairuz, who succeeded Tun Dzaiddin, is now most remembered for his telephone conversation with Datuk V K Lingam and the subsequent Royal Commission of Inquiry it gave rise to. I do not think the judiciary has recovered from the impact of what came to light during the hearings of the commission.

Tun Abdul Hamid Mohamad was the chief for too short a period to introduce meaningful reforms, although he is fondly remembered for having introduced the slogan “Buat Kerja”(the implications of which were disturbing).

The appointment of  Tun Zaki Azmi raised many eyebrows. He was parachuted into the Federal Court in September, 2007, appointed the President of the Court of Appeal in December that year and became the Chief Justice in October, 2008. In all of this, more senior judges were bypassed, a state of affairs that caused consternation in view of declarations that only experienced judges with proven track records would be promoted.

Tun Zaki also came with personal baggage that impacted on the image of the office, as much as he may have tried to downplay its significance. His previous role as UMNO Legal Adviser did not assist in furthering the cause of restoring public confidence, more so for the fact that it was during his tenure that some of the most controversial constitutional cases came before the Court, in particular the Perak challenges.

I have described these matters only to underscore one point. Being a top judge puts a person under close public scrutiny. As much as he or she many not wish to create impressions that impact the institution, it will occur.This is more so for the obvious truth that leadership is, most often, by example.

The question for the new team current heading the judiciary is this; What example do they want to set for the judges who serve them? If they wish for judges of the Malaysian courts at all levels to be conscious of their awesome duties as judges, they will have to take steps to instil in them an awareness of those duties. As leaders, these judges  must set the tone and approach each case they deal with in a manner consistent with the highest standard of the Bench and Bar.

Judges  must always act judiciously

They must at all times act judiciously, arming themselves with the requisite knowledge to make just decisions. They must always display temperament that will inspire each and every litigant a belief that whatever the outcome of a particular case, he has been given a fair hearing.

I say this only because as things stand, one cannot fault  a casual observer for walking away from a hearing in the superior courts with the impression that some judges are rude and arrogant and not interested in hearing counsel, descend into the arena and are just not very clever. It is obvious that such conduct can in no way inspire public confidence.

It is not enough to acknowledge in private that all is not well. Things have to be and can be done. The judiciary has some autonomy over appointments and promotions. This power should be invoked to the fullest extent to bring in the best people for the job. The judiciary is armed with the powers of self-regulate, that is what the Code of Ethics was introduced for and as a drastic measure, the Federal Constitution allows for the  impeachment of judges.

Values and Ethics

These powers should be deployed to stamp out any suggestions of impropriety and to address doubts about corruption and influence peddling. Even if such conduct is not actually occurring, it is damaging that there are some quarters that believe it is. This is a cancer that will eat away at the institution itself and ultimately overwhelm it.

The essential point is that reforms  can take many forms. And although key performance indicators and modernisation of the judiciary through the introduction of new technology go some way in making the institution more efficient, ultimately it is the ethical values and mindsets of the judges that determine how well the institution performs and is being perceived by the public. The reform agenda must start with inculcating the right values and changing mindsets. Difficult questions have be asked and even more difficult decisions made. The fact that the entire nation is watching cannot be stressed enough.

Deal with Plagiarism decisively

It is in this context that the revelations concerning plagiarism on the part of a senior judge must be viewed. The matter  cannot be left to Parliament alone. It is a matter for the judiciary. Regrettably, the institution has not taken a position and has not clarified whether it proposes to investigate the allegations against a senior member of its fraternity and what it plans to do meanwhile. This indecisiveness offers very little comfort and, conversely, if perpetrated will stoke doubts about the commitment of the judiciary to the core values and ethics of the administration of justice. The judiciary needs to act.

After all, don’t new brooms sweep clean?–The Edge Malaysia (October 24, 2011 Issue)

Malik  Imtiaz Sarvar is a practising lawyer and President of the National Human Rights Society (HAKAM)