Judicial crisis?
Is there a crisis in the judiciary?
If you ask the lawyers, especially the more
senior ones, they will tell you that the judiciary has been in crisis ever
since 1988, when the then head of the judiciary, Tun Salleh Abbas, was unceremoniously
‘sacked’ from his position. The events of 1988 has been said to be the ‘watershed’
of the crisis, and the judiciary never truly recovered since then. Lawyers
would tell you that indeed, there is a ‘crisis’.
But recently, ever since a political party
released what is now dubbed as the ‘Linggam video’, this issue has again been
pushed to the limelight. Many parties and individuals have expressed their
views on the matter, on both sides of the argument. The Bar Council,
representing the Malaysian Bar, has made their position clear: to them, there
is indeed a crisis in a judiciary that needs to be remedied immediately. I’m
sure you will be aware of the ‘Walk for Justice’, in which 2,000 lawyers walked
in Putrajaya to deliver a memorandum to the Prime Minister.
Earlier this week, his Royal Highness the
Sultan of Perak, Sultan Azlan Shah, made public his opinion on the matter. His
Royal Highness called for a reform in the judiciary, in order to restore public
faith in the institution. Considering that His Royal Highness is a former Lord
President of the Federal Court, I believe that his call for reform is not
something that we can lightly ignore.
On the other hand, the government, through its
official mouthpiece relating to law matters, Mr. Nazri Aziz (also known as de
facto law minister) has gone on record to say that there is no crisis, and
it is something ‘created in the minds of some’.
So, is there a crisis in the judiciary?
Let us not kid ourselves; the man on the street
would probably care little about the judiciary. The rural denizens of our
country would probably wonder what all the commotion was about. What is the big
deal?
What crisis?
I quote now a passage from an interview with
Mr. Nazri Aziz, published in the New Sunday Times on the 28th
of October 2007.
Q: Is there a crisis in the judiciary? Why is there a
perception of there being one?
A: There isn’t a crisis. It’s a false allegation.
The perception has been created by some people. When I go back to my
constituency, nobody talks about it.
When people do not go to the courts to settle their disputes, that’s when
there’s a crisis. But I don’t see that.
The few people who are unhappy, make a lot of noise. It
is reported, people read, and think there is a crisis.
Crisis means it involves the whole country but nobody talks about it. I even
asked my fellow members of parliament (MP) but nobody talks about it. So, what
crisis are we talking about?
I have to check where Mr. Nazri’s constituency
is, but I do think that what he said is true; people in his constituency do not
talk about it.
To the man on the street, and to Mr. Nazri’s constituents
there is no issue as such. There is no ‘crisis’ to speak of, nothing to wile
the hours away discussing and debating. The people most passionate and most
concerned about this are the people directly involved with the justice system;
the lawyers.
But by saying that because no one is talking
about it and so there is no crisis is missing the point completely. The ‘Linggam
video’ might not dominate the coffee shops of Muar, but that does not mean that
there isn’t a problem.
Ask anyone on the street whether they think
that judges can be ‘bought over’ and the answer that you’re likely to get is ‘yes’.
Ask anyone on the street if there a chance of success if you bring a case against
the government and the answer that you’ll probably get is ‘none’.
This is the problem. This is why there is a
crisis in the judiciary.
Law students are probably familiar with this
phrase;
Justice
must not only be done but must also be seen to be done
It is not enough that that justice is
dispensed, there must also be a perception that it is dispensed justly.
A judge cannot decide on a case where he is monetarily interested in, not
simply because in fact he may decide in a way favorable to him, but
because there is a possibility, a risk, a potential, a perception that he may
do so.
If people think that judges can be brought
over, then there is a perception of corruption in the judiciary. If people
think that the judges are pro-government, there is a perception of biasness in
the judiciary.
And because of this perception and because of
this potential of impartiality and corruption, we thus have a problem with our
judiciary.
In an independent judiciary, free from
executive control, members of the Bench (a nickname for the judiciary) would
dispense justice without fear or favour, interpreting the law within the principles
of justice. An independent judiciary would not be free from corruption but
would also be seen to be free from corruption.
An
independent judiciary
Why is it so important to have an independent
judiciary?
As I stated earlier, an independent judiciary
would mean that justice is meted out without any fear or favour, free from any
impartialities. But equally as important, we must always remember that an
independent judiciary is an important cornerstone in any democratic society.
Again, law students will be familiar with the trias
politica, or the separation of powers. This doctrine is basically such; the
state is divided into three branches:
- Legislative (the Parliament, the lawmaking body)
- Executive (the government, to carry out and implement the law)
- Judiciary (judges, to interpret the law)
I have actually written a piece on the
separation of powers in September 2006. Read it here, if you’re interested.
Each branch of the state are distinct from each
other and apart from having their own functions, the branches also provide a
system of checks and balances to each other. The role of the judiciary is to
ensure that the government governs according to the law and to ensure that
Parliament does not enact laws in contravention with the Federal Constitution.
Thus the judiciary, under this doctrine, is to serve as a safeguard against arbitrary
and unilateral use of power by the other two branches.
If however, the judiciary is subservient to the
whims of the Executive, then how can it provide a safeguard from abuses of
power? How can it ensure that the government does not violate the fundamental
freedoms of the citizens under the Constitution?
As such, the doctrine propounded by French
jurist Montesquieu is vitally important in a democratic society. Without the
safeguard, we run the risk of absolute power vesting absolutely in the
government.
Yet what we have now is a system in which the
executive and the judiciary is fused, both being regarded as government bodies.
And so when someone joins the ‘law’ part of the government, they are said to be
joining the ‘judicial and legal services’. The Attorney General’s Chambers (the
‘legal’) and the Judiciary both come under the umbrella of the government, and
of course, easily be subjected to whims of the political party of the day.
How then, will the judiciary be independent?
How can it dispense justice without any reservations? If the government decides
the appointment, elevation and composition of the judiciary, can we not
anticipate a scenario in which members of the Bench are afraid to dispense
justice for fear of not being promoted?
That is why the Bar Council has repeatedly
called for an independent commission that decides on the appointment and
promotion of judges. When such a system
is in place, we would be able to avoid the scenario that I have mentioned
above.
The video
But what we have now is far beyond merely an academic
or doctrinal problem. Whilst the scenario I have mentioned above can be ‘imagined’
or ‘anticipated’, and who knows, it may even occur in practice, the infamous ‘Linggam
video’ has raised far graver concerns.
Let us put aside the authenticity of the video
clip, for there is of course the possibility that it might not be genuine
(highly unlikely that may be). Let us assume for once that the video clip is
genuine, and that the lawyer in the clip is talking to a senior judge.
This lawyer, this almost unknown man, is
speaking to the other person on the phone about many things; brokering the
appointment of judges, lobbying for ‘Tan Sri’ship to be awarded to certain
people, setting up meetings with certain influential people.
The video clip, if it is true, shows that
certain people have a powerful say as to who become judges. It shows that
certain people can ‘select’ whom to try their cases. Most of all, the video clip, if true, shows that the certain
members of the judiciary are not only non-independent, but also, sadly, corrupt.
But as Mr. Nazri has repeatedly said, we do not
know whether the video clip is authentic. We cannot therefore say for certain
that certain members of the judiciary are partial and corrupt.
But
what Mr. Nazri has overlooked is the fact that we also cannot say for certain
that the video clip is not genuine. Remember, justice must not only be done,
but must be seen to be done?
The video clip gives a perception, a
possibility, a potential, a risk that certain members of the judiciary are
partial and corrupt. If Mr. Nazri remembers his law lectures, he will know that
this is enough for it to be an issue.
An independent commission needs to be set up,
with real powers to compel witnesses and provide protection to witnesses to
investigate this matter. We should not allow even an inch of doubt to creep in,
if the public is to have faith in the judiciary, then we must banish all possibilities
and perceptions that can lessen the public’s faith.
The response
Quite
apart from the lukewarm response from the government (even if it has set up the
three man panel), what frustrates most people concerned with the matter,
especially the lawyers, is the sheer arrogance from certain quarters of the
government, and in this, Mr. Nazri is most guilty.
After hearing his responses, what little
respect I have for this man has now eroded so much that it is practically
non-existent. This is a limited man, who has been given the task of handling
something way out of his depth. And so he handles it in the only way he knows
how, without subtlety, without humility and ultimately, without any semblance
of intelligence. I am sure the PM has made many mistakes in his lives, but
appointing Mr. Nazri to his current position must surely rank as one of the top
ones.
By putting Mr. Nazri to ‘handle’ the lawyers
have made it all the more frustrating. Some feel that we have hit upon a wall.
The ‘walk of justice’ participated by some 2,000 lawyers, while turning some
heads and garnering some attention, ultimately made little difference in the
government’s stance. All that was given was a ‘rap on the fingers’ by the PM,
and of course, a statement by the ever-quotable Mr. Nazri, saying that the
lawyers are ‘behaving like the opposition’.
I have outlined the reasons why this issue
cannot be ignored. If the public’s trust in the judiciary further erodes, there
may come a point in which the public does not have any faith in the system
anymore. They might shun the system altogether, and if this occurs we then run
the risk of ‘alternative’ forms of resolving disputes being preferred, like
violence, for example.
Brush this possibility at your own risk,
dismiss this as simply a grim and pessimistic view at your own peril. But to
me, this is something that cannot be ignored and if this government is one with
a political will to be just and transparent, then they will have to do
something about this crisis. And yes, indeed you can call it a crisis, or
problem, or issue or conundrum or whatever; the fact of the matter is,
something needs to be done, and fast.
Perhaps don’t take my word for it. For what it’s
worth, ponder over the words of High Royal Highness Sultan Azlan Shah at the
opening of the 14th Malaysian Law Conference:
“Nothing destroys the confidence in the
general public or the business community has in the judiciary more than the
belief that the judge was biased when he decided a case, or that the judge
would not be independent where powerful individuals or corporations are the litigants
before him…”
To do nothing would truly be a severe
injustice.
