How uneven are our scales of justice?


January 9, 2017

How uneven are our scales of justice?

by Dr,Lim Teck Ghee@www.malaysiakini.com

Image result for Ambassador Tommy Koh of Singapore

Professor and Ambassadoor Koh is the first Singaporean to receive the “Great Negotiator Award”, given out by the programme on negotiation at Harvard Law School, which comprises of students and faculty from the university as well as the Massachusetts Institute of Technology and Tufts University.

COMMENT In an exchange with Tommy Koh at a seminar on ‘Japan as an economic power and its implications for South-East Asia’ in 1974, the Singaporean diplomat reminded me that members of the legal profession did not comprise members of the world’s oldest profession, perhaps only second. That’s probably untrue as they could be third or fourth on this list.

Whatever anyone’s opinion of lawyers derived from personal experience is – we should not forget that lawyers generally sell their services to the higher bidder – there needs to be concern about how unevenly tilted the scales of justice in Malaysia have become.

Image result for Dr Lim Teck Ghee

Surprisingly or not surprisingly, there has been little discussion of this important topic though we have had a courageous whistleblower, Justice NH Chan, who called attention to the shortcomings of some of his former judicial colleagues in his book, ‘Judging the Judges’, subsequently printed in its second edition as ‘How to Judge the Judges’.

Image result for Justice NH Chan

Although Justice Chan, who sadly passed away recently, directed his criticism principally against his senior colleagues, his reiteration of the fundamental underpinnings of justice administration resonate in its relevance to the entire judiciary and other members of the legal profession.

Image result for Malaysia's Judiciary

Members of the Judiciary–The judge must be fair and impartial. At the same time, it is important that even litigants who lose should feel that they had a fair trial.–Lim Teck Ghee

To him, the epitome of justice is a fair trial and this requires that the judge must do justice according to law – “this is what the rule of law is all about”. The judge must be fair and impartial. At the same time, it is important that even litigants who lose should feel that they had a fair trial.

Justice Chan also felt that the public should have sufficient knowledge to enable them to judge the performance of the judges.

However, even when there is public scrutiny – which rarely happens except in the most attention-grabbing of cases, say one in every tens of thousands – it appears to be well-nigh impossible to bring anyone from the judiciary – from the lowest subordinate magistrate level to the highest level of federal supreme judge – to book for any abuse of power, corrupt practice or judgment or judicial behavior seen to be unfair or unjust.

The Royal Commission’s no-action decision on the notorious VK Lingam case serves as a good example.Being fair and impartial means that each and all members of the judiciary especially have to rise above the factors of class, race or religion in arriving at judgment. Do integrity and impartiality constitute the norm or is the judiciary – as with the rest of the civil service – influenced by extraneous factors in the cases they hear?

To what extent, for example, are members of the judiciary influenced or affected by the racial identity of the accused and/or of the lawyers in the cases they hear? Are they likely to be more lenient when sentencing members from the rich and powerful strata of society or from members of their own racial grouping?

Are they biased against those from the poorer classes who do not have the services of sharp and expensive lawyers to ensure that they get a fair trial or against those from different racial or religious groups?

Seldom raised in public realm

To my knowledge, these and similar questions have seldom been raised or discussed in the public realm. Colleagues from the legal fraternity to whom I have addressed this question in private, although generally agreeing that the judiciary is far from being independent or free from political influence, argue that the scales of justice are generally evenly and fairly administered in Malaysia in terms of the influence and impact of race and religion.

The most recent findings in the 2016 Rule of Law Index conducted by the World Justice Project appear to contradict this view. This is Malaysia’s score on the following components of civil and criminal law

Civil Justice

No discrimination – 0.5
No corruption – 0.5
No improper government influence – 0.38
Accessibility and affordability – 0.5

Criminal Justice

No discrimination – 0.51
Due process of law – 0.57
No improper government influence – 0.39
Timely and effective adjudication – 0.53

Source here, p110.

What the data by this organisation seems to indicate – the index is based on over 100,000 households and 2,400 expert surveys to measure how the rule of law is experienced, but we do not know the details of this sampling for Malaysia – is that one out of every two cases of civil and criminal justice in the country is tainted by discriminatory or corrupt action by the law enforcement agencies, including the judiciary.

Public attention – local and international – has tended to focus on issues related to fundamental rights and freedoms, constraints on government powers, and open government.

However in a robust and thriving democracy, it is equally important to ensure that the rule of law – as experienced in practical, everyday situations by ordinary people – is also subject to scrutiny and reform so that it is fair and impartial in all aspects.

A good example of such public examination is that recently conducted by British Columbia in its 2012 Justice Reform Initiative which resulted in a white paper and road map for justice reform in the state. We are sorely in need of such an initiative or minimally a clear and useful dialogue on this often neglected aspect of the Rule of Law. Perhaps the Bar Council can take the lead in this exercise.


LIM TECK GHEE is a former World Bank senior social scientist, whose report on bumiputera equity when he was director of Asli’s Centre for Public Policy Studies sparked controversy in 2006. He is now CEO of the Centre for Policy Initiatives.

 

10 thoughts on “How uneven are our scales of justice?

  1. Rule of law? I do not know Justice Chan. But, I have little confidence that there were ever one clean judge in Malaysia’s judiciary system. Layu-layu Melayu. Just wish I could be proven wrong, even if one were to tell me only half truth .

  2. Thanks Dr Lim had the honor to spend time with the late Judge N.H. Chan who drew my attention to”fiat justica ruat caelum”.He lived in a medium sized bungalow filled with books. A great loss to the country

  3. Something that has become so nebulous up to present age : Law & justice . If I can suggest , this noble Aphorism of ‘ the rule of Law ‘ had grown to be somewhat archaic in the time of Oliver Goldsmith , in his old’ England , which prompted him to pass this Stricture :

    ” Whilst the Law grinds the poor , the rich rules the Law ” ( as the Effect ) –

    HOW FAR IS THAT TRUE OR UNTRUE ( considering our legal systems here in the East ) , and whether ‘archaic’ or not ? For a start, I venture to say, England has indeed improved and progressed tremendously , considering the fact that Law Enforcers & the Justices of the Court are upright, courageous , comprising great people of Learning , who one way or another , have been persuaded by the thoughts of Oliver Goldsmith….( being conscious of it all the time ) –

    True , the twin concept of law & justice , is ‘nebulous ‘ , not easy of grasping it , IF WE DO NOT HAVE WELL QUALIFIED LAW ENFORCES , both on the ground and in the Court/s. Why does it unwittingly go nebulous ? Quality in anything goes first , that must be first. . Without which , then what Goldsmith foretold WILL EVENTUATE…..

    My little experience is that this Twin-concept ( law & justice ) HAS GOT TO BE APPROPRIATED with the thinking (or idea ) of ‘ MONISM ‘ viz : something that is neither mind nor matter , BUT THE GROUND FOR BOTH ….the position that reality is one ( as opposed to pluralism ) ……

    Whilst Implementation of both law & justice is CRITICAL, the moral probity , character and rectitude of the Implementers , typically the Court , must posses these attributes : Quality, Quality and Quality ….. ; Failing which, we get the EFFECT of what Oliver Goldsmith lamented, about grinding the poor , by the unseen process of the ‘ rich who rules the law ….’ ( Q.E.D )

  4. This is another way of saying that if the Court and the judges are not alert & to be conscious all the time of what Goldsmith ‘lambasted ‘ re ” the law grinds the poor , whilst the rich rules the law…..” (happening here too frequently ) , then the judges ARE being ingrained with Corruptible mind UNAWARES …..

    (illustration : the learned CJ , who is now gone into oblivion , remember , a lawyer sponsored by some Tycoons , took the CJ for a holiday to NZ , even had the audacity to hold a birthday party in the learned Attorney general office …..etc – and they defended themselves by saying : nothing is wrong with that !

  5. Katasayang, there were many clean and outstanding judges in Malaysia before, judges such as Tun Suffian Hashim, Justice Harun Hashim, Justice Eusoff Abdul Cadeer, Justice Hashim Yeop Sani, the Vohrah brothers (KC and LC) and Tun Salleh Abas to name a few.

  6. In Malaysia lots of lawsuits filed over defamation cases but most cases were resolved when the defendants apologize.
    Question? Why file a lawsuit to begin with if the outcome desired is a simple apology? Waste of courts time. For example Anwar Ibrahim lawsuit against certain individuals and NST and their reporters. ANwar should go for broke, make them pay till they go broke to teach them a lesson. If you feel you don’t have a strong case then don’t file a lawsuit.

    Over the years many newspapers especially NST, Utusan, BH and TV 3 have managed to drag out the cases and just before trial, issue apologies and case settled. If the plaintiff feels strongly that their reputation has been tarnished and defamed, they should go all out and make the defendants pay through their noses so next time they will think twice or three times before defaming anybody.

    News reporting by the media must carry with it responsibility and failure to abide by these rules will result in severe penalty.

  7. How come Indians appear to be most discriminated and screwed by justice system even though so many good Indian lawyers, especially among mamaks? Look at how many Indians die in custody! Definitely race and ketuanan Melayu play the biggest role in Malaysia, including in rule of law system. Those who do not agree with this are having their heads in the sand.

  8. It is all truth.
    Thank you, Orang Malaya. My generation has failed what we have inherited.
    Hopefully a few good loyarburok would write up how each of the judges you have mentioned deserves our remembrance.

  9. Katasayang, all judges would be remembered by their written judgement which in some cases become precedents. Tun Suffian and Salleh Abas wrote extensively and some oif their works are used as text in Malaysian universities.

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