Cleaning up the judiciary — was the CJ right?

When I first read the news report in The Star that Tan Sri Zaki Azmi, the Chief Justice, had told two 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 CJ.

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 standards 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, we had judges such as Datuk VC George; Datuk Mahadev Shanker; Datuk NH Chan; Datuk 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 backwards 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 has never been the same again, until today. Tun Abdullah Ahmad Badawi’s efforts in restoring some semblance of integrity to 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 rests 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 as favoured by Tan Sri Eusoffee, it is a very thick white sauce over a very large red herring.

To a large extent, the public has 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 going on in there. To top it, the appointment of Tan Sri Zaki Azmi, 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 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 identity 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 his 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 volumes 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 have 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 corporation or institution where disciplinary proceedings can 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 suspicionof 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.

comments

What are the reasons for the two judges being asked to resign? Is it because they are not helping Umno enough? What about the ones who twisted the law inside out to help BN in the Perak cases? So they won't be asked to resign because they are doing BN a great favour?

The issue really isn't just about the process of sacking the judges but their appointments as well. The whole judiciary is skewed. Especially with the outcome of events in these last few years, it isn't surprising that the judiciary has lost the trust of the general public. Alot of people even speculate the appointments, dismissal, witnesses as well as the outcome. Sort of like watching the the 'Jason Bourne' trilogy movies.

Quote from the article: 'To top it, the appointment of Tan Sri Zaki Azmi, a former leading Umno legal adviser, as the Chief Justice served to fan discontent with a section of the public.'

Quote from the article: '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.'

Mahathir murded Judiciary. Unless he arrested and punnished for that crime, justice will never be seen to be done.

It seems that power is being concentrated in a few important positions like the Chief Justice, the IGP, the PM and the head of the MACC.
Maybe that is the PM's grand scheme for his 1Malaysia agenda.



I think it's safe to say that when the goverment of the day gives the position of Chief Justice to one of its legal adviser, it's meant to improve their image and not the judiciary's.