Justice RCI: Just Don’t Get Hopes Up High


March 13, 2019

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Justice RCI: Just Don’t Get Hopes Up High

 

by Dr.Lim Teck Ghee

“Laws grind the poor, and rich men rule the law.” – Oliver Goldsmith

The  Government’s decision to form a Royal Commission of Inquiry (RCI) to investigate the allegations of judicial interference and misconduct made by Court of Appeal judge, Justice Datuk Dr Hamid Sultan Abu Backer, has drawn widespread approval and support, including from the Bar Council, retired judges and civil society organizations.

However the public should not have its hopes too high or expect that the RCI will end up with a reformed law system or a more independent judiciary.

The fact is that RCI’s, in whatever country when they are held, tend to be part of the ruling government’s political agenda. They also are ultimately dependent in their impact on the willingness of the government to implement whatever recommendations are arrived at by the members appointed to the RCI.

And as we have seen from the experience with the recent RCIs on Sabah’s illegal immigrant issue, the V.K. Lingam video clip case, and the Teoh Beng Hock case, despite the significant public and media attention they garnered, they ended with lots of “sound and fury”;  “signifying nothing” or little.

 

What Rules the Law?

If this is seen as being too cynical let us consider this of the legal profession which all judges are rooted in.

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Tommy Koh, the Singapore’s brilliant lawyer-diplomat

In an exchange with Tommy Koh, the Singaporean lawyer-diplomat reminded me that members of the legal profession did not comprise members of the world’s oldest profession, perhaps only second.

He may have intended it as a tongue in cheek criticism of my position on the subject. After all, law students and practitioners constantly remind us of their legal maxim: ‘Fiat justitia ruat coelum’ or ‘Let justice be done, though the heavens fall’.

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

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Justice N H Chan

Not surprisingly, there has been little discussion of this topic though we have had a courageous whistleblower, Justice N H Chan, who called attention to the shortcomings of some of his former judicial colleagues

To him, the epitome of justice is a fair trial and this requires that the judge must do justice accordingto 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 – it appears to be well nigh impossible to bring any one from the judiciary – from the lowest 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.  

Even or Uneven Scales of Justice

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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 in our multi-racial society.

Do integrity and impartiality constitute the norm or is the judiciary influenced by extraneous factors in the cases they hear?

To what extent, for example, are members of the judiciary influenced 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 expensive lawyers to ensure that they get a fair trial or against those from different racial or religious groups?

These and similar questions have seldom been discussed in the public realm.  Colleagues from the legal fraternity to whom these questions have been addressed, although generally agreeing that the judiciary is far from being independent or free from political influence, tell me that the scales of justice are generally evenly and fairly administered in Malaysia in terms of the influence of race and religion.

The findings in the 2018/9 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                                         0.55

No corruption                                               0.66

No improper government influence             0.49

Accessibility and affordability                       0.58

Criminal Justice   

No discrimination                                           0.47

Due process of law                                        0.54

No improper government influence               0.39

Timely and effective adjudication                  0.57

What the data indicates – the index is based on over 120,000 household and 3,800 expert surveys though we do not know the details of this sampling for Malaysia – is that one 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.

Can the RCI Open The Pandora’s Box?

Public attention shortly will be focused on the case of judicial misconduct and interference in government.

However in a robust democracy, it is equally if not more important, to ensure that the rule of law – as experienced in practical, everyday situations by ordinary people – is 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.

 

We are sorely in need of such an initiative or minimally a public discussion in the coming RCI on this ignored and neglected aspect of the rule of law.

 

One thought on “Justice RCI: Just Don’t Get Hopes Up High

  1. (Quote) “……the judiciary is far from being independent or free from political influence…”.

    (Quote) “……one 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.”.

    Both the aforementioned statements by the writer – to my mind at least – assert that public trust, faith, confidence and respect in our legal system and judiciary is impaired because it is “tainted”; and that the government could – and should – be implicated for this “tainted” legal system and judiciary. It is my conclusion that if indeed the legal system and judiciary is “tainted by discriminatory or corrupt action” as the writer claimed (and if indeed the government has a hand in it – also as claimed by the writer), the due process of law can then be viewed to be dodgy, shady, and full of suspect. Now, if this is so, is it then not possible – under the circumstance – that a person could be charged for a crime in court even though he/she is actually innocent of the crime; and that because of this also, how then could a court of law be entrusted to deliver fair and just treatment to him/her? And should he/she then be convicted by the court under this circumstance, would there not then be a possibility that he/she will be unfairly sentenced for the crime when he/she is actually innocent of it? If this is the situation we are in, to my mind it is incomprehensible considering that our country has already been independent from British rule for more than 6 decades; and in this span of time, should already have developed a mature legal system and judiciary which the public can trust, have faith and confidence in, and depend on, to deliver justice. And probably we should be doubly worried also by the writer’s next claim which is: that this RCI is unlikely to deliver the goods we hope and expect because, according to him, considering those examples from the past involving RCIs which he brings to light in this article, this RCI is also likely to end up with the same fate. All being said, I still have hope somewhat, especially as I could still recall the Tun Salleh Abas case; did not a tribunal found him guilty of a wrongdoing or something (wherefore he was then removed from his position)? Does that case then not prove that there are mechanisms in place to remove judges? And that because it is precisely possible to remove judges, wouldn’t judges be dissuaded and deterred from committing acts that are deemed to be discriminatory and corrupt because of this possibility? And even if there should still be judges who would be persuaded to run errant or act in ways that are improper, would it not then be possible to remove such judges by this very mechanism when they are found guilty of them? The article is interesting because it raises as many questions as it makes many assertions.

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