The death knell for democracy sounds when the judiciary is corrupt or under the influence of political or business leaders and corporations.
And a judiciary which fails to stand up for the rule of law and protect the rights of citizens is inconsequential.
The selection, therefore, of incorruptible, independent-minded, impartial and thinking legal professionals as judges is of utmost importance. More so when the executive branch of government shows autocratic or overbearing, even capricious, tendencies or is led by men who put self-interest above that of citizens and the nation.
We have read of judges in some countries being under the influence of politicians and businessmen, just as we have heard of judges being impartial and delivering judgments favouring those in power.
That justice must not only be done but must be seen to be done is not a frivolous statement. The judiciary must have the full confidence of the public, and judges must be above suspicion of any kind. For that to happen, it must interpret and enforce laws equitably and transparently.
Much depends, therefore, on who is appointed a judge or chief judge or chief justice and whether they feel indebted to the person or persons appointing them or are easily influenced.
Sometimes, judges may arrive at decisions based on reasonable evidence, yet people may ascribe biased intention to their judgments, especially those involving well-known or powerful personalities and large corporations. Sometimes, of course, members of the public may be right in their assumptions.
In July 2016, the Philippine Supreme Court acquitted former president Gloria Macapagal-Arroyo of plunder and set her free after nearly four years of hospital arrest. The 15-member bench granted her plea to drop the case against her, with four judges dissenting.
Eight of the 11 judges who voted to acquit Arroyo had been appointed by her when she was president. Naturally that gave rise to questions among a section of Filipinos, even though one of the four who dissented had also been appointed by her.
In a 2009 report, the International Crisis Group accused the judiciary of Sri Lanka of failing to protect constitutional and human rights.
“Rather than assuaging conflict, the courts have corroded the rule of law and worsened ethnic tensions. Rather than constraining militarisation and protecting minority rights, a politicised bench under the just-retired chief justice has entrenched favoured allies, punished foes and blocked compromises with the Tamil minority,” it said.
And look where Sri Lanka is now. It is facing its worst crisis ever and people are suffering.
Public perception of the judiciary in Malaysia has seen ups and downs. Although Malaysia has been fortunate to have had some of the most disciplined and best minds as judges over the years, there have been some who did not live up to expectation.
For a long while, the wings of the judiciary were clipped by the executive, and, on some occasions, questions were raised about the appointment or elevation of certain judges, in particular after the 1988 judicial crisis. There was even a judge-fixing scandal.
But, today, the Malaysian judiciary has regained some of the public respect that it had lost. This is largely due to the courage and independent mindedness shown by some judges in recent years, particularly under the stewardship of current Chief Justice Tengku Maimun Tuan Mat.
For public trust to continue to grow, it is important that judges carry out their duty without fear or favour. It is also important that competent law practitioners become judges.
FMT reported on July 23 that there were two vacancies in the Federal Court and that another two would be created when Chief Judge of Malaya Azahar Mohamed and Court of Appeal president Rohana Yusuf leave office in October and November respectively.
So, we should see four new Federal Court judges by next January or earlier and two Federal Court judges elevated to the administrative position of Chief Judge of Malaya and Court of Appeal president.
Although judges are appointed by the Yang di-Pertuan Agong after consulting the Conference of Rulers, the selection process starts with the Judicial Appointments Commission (JAC) chaired by the chief justice. The JAC will propose the names of suitable candidates to the prime minister, who, in turn, advises the King on who should be appointed from this list.
What is the requirement for appointment as a judge of the High Court, Court of Appeal or Federal Court? Article 123 of the Federal Constitution says any citizen who has been an advocate of those courts or any of them or a member of the judicial and legal service or of the legal service of a state, or sometimes one and sometimes another for ten years preceding is eligible for appointment.
But being a judge is not as simple as it may sound. I have, in the past, walked in and out of courtrooms as a journalist and I have some idea of the difficulties and complexities involved, as well as the importance of arriving at sound and fair decisions.
I’d like to quote some remarks made by Tengku Maimun during the Australia-Indonesia Partnership for Justice webinar on April 15, 2021:
“The task of a judge is onerous and it is reflected in the oath that we judges take, namely to ‘bear true faith and allegiance to Malaysia and to preserve, protect and defend the Constitution’. This task could not be discharged properly by a judge without him or her standing firm against arbitrary state action on behalf of the citizens and the weak, and to strike down unconstitutional laws, when the occasion arises. In this regard, to ensure impartiality and to ensure the protection of the rights of the minorities, (former) Lord President Tun Suffian Mohamed Hashim’s advice bears reiteration, namely that these tasks have to be undertaken such that there is no identification with any particular race or religion – and if I may respectfully add to that: gender.
“Undeniably, judging requires knowledge, integrity and courage. These qualities are the hallmarks of a great judge.”
Judges also need to write good judgments and do it speedily so that anyone wishing to appeal can do so as soon as possible. Their written judgments may serve as material for lawyers and law students to learn from or discuss.
The judiciary today is even more important because of the volatile political situation in Malaysia, and the fact that weak political leaders tend to resort to strong-handed, even undemocratic, methods to govern or stay in power.
The direction the nation is taking is worrying and the courts will become even more busy.
The sword of Damocles continues to hang over the freedoms that citizens enjoy. Often, we can see how the law is applied by the authorities against citizens who want to exercise their rights, including, for instance, the right to gather and protest peacefully or even to have some fun.
Judges will be increasingly called upon to decide on issues arising from the explosive mix of religion and politics, as they will on interreligious conflicts.
Also, the independence of judges will be tested like never before as more politicians and influential people appear before the courts charged with corruption or some other criminal offence.
Importantly too, the Federal Court has the final say on interpreting laws and, in the process, decides what is constitutional and what isn’t.
In summary, more than ever, citizens will fall back on the courts to protect them and the nation. It is, therefore, imperative that incorruptible, independent-minded, impartial and thinking legal professionals are appointed as judges.
The views expressed are those of the writer and do not necessarily reflect those of FMT.
Stay current - Follow FMT on WhatsApp, Google news and Telegram