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Sunday, October 28, 2007

The right to a free(d) Judiciary

Edmund Bon and Brendan Navin Siva

(The Sun, 25/10/2007) The Malaysian Judiciary has been under considerable attention in 2007 and it would be fair to say that the developments over the last two decades have not been positive. The public perception of the Judiciary is not at its highest. How have perceptions of our Judiciary turned this way? Some point to the 1988 judicial crisis as the starting point.

In a string of public law cases starting in 1986, the government became concerned when judges made several decisions and statements critical of the administration. Berthelsen was a foreign journalist with the Asian Wall Street Journal. The newspaper was banned and he was asked to leave the country. Our apex court held that the government had wrongfully cancelled Berthelsen’s employment pass in breach of natural justice. In March 1987, a certain law on criminal procedure was declared unconstitutional (Yap Peng case) and in October 1987, Mamat bin Daud successfully challenged the government in applying to strike down a law relating to Islam passed by Parliament. On Jan 15, 1988, two Supreme Court judges allowed Lim Kit Siang, an Opposition Leader of Parliament to proceed with his case against United Engineers Malaysia Bhd and the government to stop the North-South Highway project. Although the two judges were in the minority, they made strong statements in support of their decisions. Infamously, the power struggle within Umno went before the courts resulting in the party being declared an unlawful society.

Our former prime minister was not pleased and made public statements attacking the Judiciary. On behalf of the judges, Tun Salleh Abas as the then Lord President wrote to the King expressing concern about the onslaught. Unprecedented steps were taken to remove the Lord President. One allegation was that he was biased against Umno. Other casualties included two senior judges, Tan Sri Wan Suleiman and Datuk George Seah.

What appeared to be a strong Judiciary ready to uphold the rule of law and defend the Constitution (which in some circumstances would result in rulings against the government of the day) was in one swoop left weakened and compromised. Separation of powers meant little. The Judiciary has not recovered since, and has been perceived since then as being susceptible to Executive influence. It is perceived as submissive and liable to manipulation. Many valid questions have been raised in relation to cases and appointments or promotions in the Judiciary. Some judicial statements have hinted at this. Several Judges have alluded to it after their retirement. Our country does not deserve to be under the cloud of these speculations.

How does it affect me, you say? Well, when judges decide cases before them, they should be "blind" to who the parties are or who the lawyers are. Conversely, justice should be consistently applied by judges, in that two similar cases before two different judges should not yield a different result.

Put another way, decisions should not depend on who the judge or your opponent is. We lament the day "tribal" ways would be resorted to; the rich will get away with murder, the poor and un-influential will never be able to protect themselves, and our future generations learn to seek survival not by ethical conduct but through manipulation of our institutions.

Lawyers have become uncertain whether cases are being decided properly according to the laws of our country or pursuant to extraneous considerations. Rather than accepting it is the former, it is not difficult to suspect the latter. And it is most unfortunate that honest judges who are hard-working and of impeccable integrity continue to labour in an ailing structure riddled by such negative perceptions.

It is a fundamental human right of every person to a competent, independent and impartial judicial system as a neutral arbiter of disputes between private individuals/entities and between individuals/entities and the State. This is the basic minimum required of all civilised countries as stated in The Bangalore Principles of Judicial Conduct (2002). Secondly, when we have a "weak" Judiciary which is susceptible to various influences, we will have a corrupt system. And influence is not wielded only by money. Corruption also includes patronage of influence. But judges should only be influenced by the law and nothing else. Hence, the well-known term – rule of law – where no one is above the law.

Inscribed on the Malaysian Bar Council’s crest is the mantra: "Justice Through Law". Tasked under section 42 of the Legal Profession Act (1976), the council is to "uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour". Lawyers are also under a duty "to protect and assist the public in all matters touching ancillary or incidental to the law". Our walk on Sept 26 was not about a video recording nor an attack of the Chief Justice nor to malign the government. There was no personal agenda or ulterior motive. We walked for a moral body of persons, for a moral institution. We stand for a principle which cuts across all religions and ethnicity, and we claim our human right to a free Judiciary which will command the respect of all Malaysians.

This is a fight for a better system, a fight to be waged by all of us. It is a fight for each and every citizen’s right to a competent and independent system. It is a fight for a right that every Malaysian deserves and should expect. Only as citizens together can we claim it and save this very important institution.

It is worth repeating that unless our country examines, considers and cleanses the ghosts of 1988 and sincerely seeks reform for the future, the perception that the Judiciary is not at its best will stick, and stick for good. We are well aware of and truly admire the number of sitting and retired Judges who consistently and tirelessly perform or performed their duties without compromise and without being influenced. Some of them may have suffered or continue to suffer as a consequence of the prevailing environment.

Today, not only is public confidence low, lawyers’ confidence in the system has greatly diminished. But perhaps with a few exceptions, there is the realisation that it would be futile to work hard, and toil on cases day and night because they may not actually be decided in the courtroom. This is a sorry state of affairs that must be addressed and remedied.

We must do whatever we can. The government has indicated that it is in full support of a strong and independent Judiciary. We must all work together to ensure that this objective is attained and the correct environment exists in which every Malaysian can come to court seeking truth and justice with the comfort of knowing that, regardless of the circumstances, he or she will be met by a fair, impartial and independent Judiciary.

Edmund Bon and Brendan Navin Siva are members of the Human Rights Committee, Bar Council Malaysia. For information on the work of the committee, see


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