Cleaning up the Judiciary – was the Chief Justice right?

When I first read the news report in the Star that YAA Tan Sri Zaki, the Chief Justice, had told 2 errant High Court Judges to voluntarily resign, my initial reaction was one of pleasure. I thought it was good that the CJ has finally cracked the whip and told these useless Judges to leave the Judiciary. However, after having thought about this issue with a little bit more depth, I am now hesitant to say that it was a good move by the Chief Justice.

Our Judiciary was among the best in the Commonwealth prior to 1988. We had people of absolute integrity and capable of serving justice with the highest standard of knowledge of the law coupled with flawless judicial temperament. Tun Suffian was highly regarded as among the finest. His Majesty the Sultan of Perak, Raja Azlan Shah was among the best. Tan Sri Eusoffee Abdool Cadeer, who would scold Counsel in Latin, could teach a thing or two about the law even to some British law Lords themselves. And at the lower rung of the Courts, we had Judges such as Dato’ VC George; Dato’ Mahadev Shanker; Dato’ NH Chan; Dato’ Razak Abu Samah, Tan Sri Harun Hashim, et al. It was indeed a pleasure and an honour for me, as a young Counsel then, to appear before all these legal giants.

Of course the regime of Tun Dr. Mahathir Mohammad had to change it all in 1988. Just after the highest Court of the land, led by none other than Tun Salleh Abbas had bent over backward to appease the Government in the UEM vs Lim Kit Siang case – and in the process set our administrative law back by about 50 years! Tun Salleh was himself subjected to the ignominy of having to defend himself before a doubtful tribunal. The rest is history.

Our Judiciary was never the same again, until today. Tun Dr. Abdullah Ahmad Badawi’s efforts in restoring some semblance of integrity in our Judiciary had seen the establishment of a Judicial Appointment Committee. How far does that go towards restoring public confidence in our Judiciary? When the absolute power of appointment still rest with the Prime Minister and nobody else, what does it matter whether there is a JAC or not? The JAC might well be just another coat of paint on a very old and rickety wooden hut full of white ants. Or favoured by Tan Sri Eusoffee, it is a very thick white sauce over a very large red herring.

To a large extent, the public have become numb with our Judiciary. The people know that there are some honest and hard working souls in there. But the people also perceive some unsavoury shenanigans in there. To top it up, the appointment of YAA Tan Sri Zaki, a former leading UMNO legal adviser, as the Chief Justice served to fan discontent with a section of the public.

Lord Chief Justice Hewart’s oft repeated pronouncement, “justice should not only be done, but should manifestly and undoubtedly be seen to be done,” is not only a legal truism as much as it is in fact an expectation. However, there is an obvious lack of appreciation as to what this phrase entails on the part of our Judiciary and Government. It really does not matter whether a given Judge had arrived at a decision after having applied the relevant laws honestly, with absolute integrity and the soundest of reasoning. If the ultimate stakeholder of the Judiciary, namely the people and litigants perceive that there is something wrong or improper, than justice is not seen to be done.

To illustrate, just imagine a situation where a brother of mine is a Judge (none of my brothers is a Judge I must hasten to add). Let’s say I have a case and the case is heard by my brother. Now, regardless of the fact that my brother is the most honest person on earth, and regardless of the fact that he has decided the case in my favour correctly under the law, justice is not seen to be done. This is because he is my brother. How could he hear and decide on my case? That is the crux of it all.

I have stated that the ultimate stakeholder is of course the litigants and the people. The people look to the Judiciary for justice and implementation of the law. The Judiciary is therefore not a private institution. It is an institution which is in the public domain. Although the Judiciary, theoretically, is not answerable to any branch of the administration of this country, it must however be able to withstand the closest of scrutiny by the people. And it must be able to take it up its chin with nary a grimace on its face.

The legal fraternity is pregnant with speculations as to the identities of the two Judges who are now asked to leave. The antics of one of these two Judges have been a source of wonderment for a very long time. He has been misbehaving from day one. His was a case of a Judge who was contemptuous of the very seat of justice which he himself occupies! Thus it is a source of another great puzzlement as to the timing of him being asked to leave. Why now? Or why only now? I am sure the public would ask.

Judges are well protected under the law. And it is not any insignificant law at that. They are protected by no less than our Federal Constitution. Under Article 127 for instance, the conduct of a Judge cannot even be discussed by Parliament without a notice of a substantive motion being given by not less than a quarter of the total number of Parliamentarians. Also, a Judge cannot be dismissed except by His Majesty the King upon a recommendation by a tribunal established under Article 125.

Such is the protection accorded to Judges. This is necessary in order to prevent the Executives (the Government) from interfering with the Judiciary by asserting powers of dismissal or transfer at its own whims and fancies. Nevertheless, with compliant cohorts, 1988 has proven that despite such protection, the system could still be breached!

It is therefore imperative that any decision to remove any Judges, whether by reasons of misbehaviour or wrongdoings, must be done, and ONLY be done, in accordance with the procedure enshrined in the Federal Constitution. It does not speak volume for us to say that the procedure would be too expensive, time consuming or cumbersome. It is there for a reason.

My concern is this. What will the public now think? They do not know what these two Judges had done. Is justice seen to be done? To the people, it might not be. They could question the real intention. Why wasn’t the Federal Constitution followed? What were the complaints against them? With all due respect, to ask Judges to resign voluntarily in the comfort of the Chief Justice’s chambers without laying out the exact reasons, in clear and precise terms, is a recipe for disaster. The Judiciary is not a private cooperation or institution where disciplinary proceedings could be initiated and proceeded with behind closed doors.

Had there been a tribunal, all these would be in the public domain. There would not be any speculation. Nor would there be any suspicion of unsavoury motive or motivation. If a citizen could be given the right to be heard – and this includes the right to be defended – why wouldn’t  a Judge be accorded such right?

With all due respect, this is a dangerous precedent. And it is not going to help improve the image of the Judiciary. Not when justice is not seen to be done.


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Posted on 16 September 2009. You can follow any responses to this entry through the RSS 2.0.

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