Malaysiakini - Tuesday November 20

One step back for the judiciary
Raja Aziz Addruse

When asked recently how he thought the judiciary had performed since he became chief justice of Malaysia late last year, Mohamed Dzaiddin Abdullah replied that it was not for him to say but for the people to judge. To lawyers, who are in the best position to judge, the answer is plain. During the short period, confidence in the judiciary is beginning to be restored.

Judges, who had previously been sidelined by the former chief justice (Eusoff Chin), are now free to perform their functions as judges. The allocation of chosen cases to certain judges to hear has been discontinued. Judges now appear to work together as part of that team called the judiciary. Rarely does one now hear or read about a judge losing his temper in court for contrive reasons. Except for a very few who seem to feel the need to remind those who appear before them that they are judges taking offence over inconsequential issues and committing all and sundry for contempt on the flimsiest of grounds.

What has brought about this noticeable change? As Dzaiddin himself said after his appointment, it is a question of leadership. Unlike his predecessor, Dzaiddin leaves each tier in the hierarchy of the judiciary to operate independently of each other with the head of each to be responsible for the judges under him, but with Dzaiddin in overall charge.

His call to his judges was to be independent and to decide according to the evidence and facts. He was not one to order or request his judges to decide in a particular way, as seemed to have been done by his predecessor according to the revelation by justice Mohamad Kamil Awang in his recent judgment in an election petition.

In the atmosphere created by Dzaiddin, judges are seen to perform their functions with more confidence. The decisions of the Federal Court in the Zainur (Zakaria) case, of the High Court at Shah Alam in the (Internal Security Act) habeas corpus case and of justice Mohamad Kamil in the (Likas) election petition are cases in point. Each are supported by the facts and the law of the case. Then there were the decisions of the Court of Appeal which have put back some sense of proportion into the award of damages in defamation cases.

Judiciary under close scrutiny

These developments were welcomed by the Bar. The judiciary was seen to be on the road to full recovery. But the question lingered in the minds of lawyers as to whether this change for the better was going to be allowed to continue. An indication that the judiciary was coming under the close scrutiny of the executive was given when senior ministers of the government publicly criticised justice Mohamad Kamil for disclosing in his judgment referred to above that his superior had given him a directive over the telephone to strike off the election petitions he was to try.

Initially, the government’s position on this alleged interference with the judge’s exercise of judicial discretion was one of concern because of the adverse effect it would have on the independence of the judiciary. The minister in charge of law at the Prime Minister’s Department, Dr Rais Yatim, thought that the disclosure, having been made by the judge in his judgment, must be taken seriously by all parties, and he himself would take necessary measures to ensure that the disclosure was investigated. Expressing the hope that such incidents would not recur, he said: “The country is known for its judicial independence and we must make it clear that nobody should violate our judicial system.”

After Dzaiddin predecessor voluntarily owned up that he was the person who had telephoned the judge, but denied that he had given him the alleged directive, the government’s stand on the issue was seen to shift. The prime minister took the judge to task saying that he had, by making the disclosure, “tarnished” the image of the court by dragging it into the public controversy and “now he have a problem trusting the court”. Particular emphasis was given by the prime minister to statements the judge had made in the judgment expressing his frustration over a person matter involving his child.

The deputy prime minister seemed also to be unhappy with the way judges were going about improving the image of the judiciary. His advice was that members of the judiciary could by all means improve their image, but they should not go beyond their responsibility to prove a point to the government and the people. What that means is not clear.

What is clear that scenario like that which preceded the events of 1988 when the prime minister said that it was up to the head of the judiciary (then Tun Mohd Salleh Abas) to admonish judges (in that case for making public their political views), it was publicly announced by Rais Yatim that the government was willing to give extra power to Dzaiddin to discipline judges following recent ‘judicial quips’ made by judges when they made their decisions. After all, it is the chief justice who “holds the whip. You can’t whip from outside”.

Uncertain future directions

In the light of these statements by ministers of the government, the future directions of the judiciary was once again becoming uncertain. Whether the judiciary was to be proceed on the road to full recovery would depend on who was to be appointed to fill a vacancy in a senior judicial post created by the retirement of justice Lamin Mohd Yunus, the former president of the Court of Appeal in March this year.

The logical choice for the Court of Appeal post was Wan Adnan Ismail, the chief judge of Malaya. That seemed to be dictated by both seniority and merit. If that happened, the question of interest was who was to succeed him as chief judge of Malaya? If the image of the judiciary was to continue to improve, the successor must be the one who satisfied generally accepted criteria for the appointment of judges. These require the most senior to be the first choice unless another is more suitable by reason of:

·  merit

·  legal ability (in the sense of professional qualification, experience, knowledge)

·  character (by reference to honesty, integrity, open mindedness, diligence, common sense, temperament)

·  person skills (in communication, language, analytical, mental agility, leadership skills, ability to accept criticism)

·  awareness of what is required of a judge (meaning that he must be apolitical, secular in approach, fearless and uninfluenced by personal difficulties or views and independent)

Based on these criteria, there could be no dispute about the most suitable candidate. The obvious choice was justice Malik Ahmad. He was the senior most Federal Court judge after justice Wan Adnan, and his merit as a judge was beyond question. But when the appointments were announced on Sept 6, it was justice Ahmad Fairuz who named as the new chief judge of Malaya, to succeed justice Wan Adnan who become the new president of the Court of Appeal.

Many will recall justice Ahmad Fairuz’s involvement in the Court of Appeal decisions in the contempt cases of Murray Hiebert and Zainur Zakaria, the later of which was recently resoundingly reversed by the Federal Court. Justice Fairuz also presided over the coram which heard and dismissed the Malaysian Bar’s appeal against the decision of the High Court to restrain the holding of an extraordinary general meeting of the Bar (convened to discuss allegations of improprieties against the then chief justice and the sitting judge of the Court of Appeal). The Court of Appeal had dismissed the Malaysian Bar’s appeal on, amongst others, the ground that the Federal Constitution prohibited any discussion on the conduct of judges except in Parliament.

While these cases were decided on facts peculiar to themselves, the principles involved were universal, particularly those pertaining to fundamental liberties. That justice Ahmad Fairuz has been chosen over justice Abdul Malik in spite of the implications of those decisions is worrying.

Many will also remember the highly controversial decision of justice Ahmad Fairuz in the election petition case brought against Wee Choo Keong in 1995, where, after holding Wee (then a member of the DAP) to have been disqualified from standing as a candidate in the parliamentary election, returned the losing candidate as a member of parliament without requiring the process of holding a by-election to be gone through.

History repeating itself

With the appointment of the new chief judge of Malaya, the apprehension felt by many members of the Bar that the improvement in the judiciary was to be short-lived appears justified. Where appointments and promotions are made in disregard of acceptable criteria it is not the confidence of the public in the judiciary alone that is undermined. Good judges, too, will feel no pride in being part of a judicial system where neither merit nor seniority is recognised.

It looks as if the much-welcomed decisions of the courts given since Dzaiddin became chief justice have rung alarm bells that the judiciary is becoming too independent. We may be in the process of seeing history repeating itself. The country will be the loser once again if it does. It is indeed a great pity. Instead of going forward, we have now taken one step back.

Now that Dzaiddin has ‘decentralised’ the judiciary, the responsibility for the performance of the High Court in Malaya will fall squarely on justice Ahmad Fairuz’s shoulders. Just as Dzaiddin has been subjected to close security by the Bar since his appointment as chief justice, justice Ahmad Fairuz will equally be. Having witnessed the recent improvement in the performance of the High Courts of Malaya, any change indicating that the judiciary may be retrogressing to the pre-Dzaiddin days will be immediately noticeable.

RAJA AZIZ ADDRUSE, a human rights and constitutional lawyer, is former Bar Council chairman. He is also one of the legal advisors for the Council of Rulers. The above article first appeared in the Bar Council’s quarterly Insaf.