Thursday, April 19, 2007

Why A Judicial Appointments Commission

Our Lives Are Shaped By The Law

It is crucial to remember that the system we live in is entirely shaped by the law. The Federal Constitution, as the supreme and basic law, sets the foundation. The space in which we exist and correlate is also shaped by the law. The law puts in place a framework that becomes the basis of our expectations of each other in our public lives.

For example, we do not murder. This is an offence. Murdering as such ceases to be norm. Or when we enter into a contract, we know that we are under obligations, just as the other party or parties are. Similarly, we know that it is relatively safe to drive on a public road as other drivers would, more usually than not, have been licenced to drive and as such are competent to do so.

The more we think about it, the law affects and shapes us in so many ways. It is defining.

This is why the Federal Constitution as the Supreme Law is so important. By entrenching basic personal rights – the right to be free from slavery, the right to life and liberty etc – the Constitution seeks to ensure that our private space is protected in such a way that we can live our lives privately and as we wish to. The only condition is that where our private lives intersect with public life, then we cannot act against the general interests of anyone else.

This is easily illustrated by the guarantee on the freedom of religion. Article 11(1) guarantees every person the freedom to profess and practice a religion of choice. That means that if I wanted to profess the religion of satanic worship, I could. Article 11(5) however provides that my freedom cannot be invoked to justify acting against general law relating to public order, public health or morality. What that means is that while I can profess to be a satanic worshipper, my right to practise may be restricted if such worshipping involves acts against public order – e.g. sacrifices of virgins under moonlight. This is because in that situation my private life – the right to be a practicing satanic worshipper – intersects with public life – the right of a particular virgin not to be murdered.


The Law Is Only As Good As The Way It Is Defined And Applied

But, and this is the point of this exercise, the law is only as good as the way it is defined and applied. Put another way, the law – be it the Federal Constitution or any laws made by the legislative bodies – is only useful in ensuring the balance described above if it is applied correctly and consistently. This is why in common law systems, the doctrine of precedent requires that decisions of a higher court are followed by a lower court. The presumption is that the decisions of the higher courts would be sounder – the decisions having been made by more experienced judges, usually sitting in teams of 3 or 5 – than those of the lower court, where more junior judge sit, usually alone.


Judges Administer The Law

This points to a very crucial feature of the legal system: the law is only as good (in application) as the person who interprets and applies it; the Judge. It is the Judge that administers the law. For many, the Judge characterizes and embodies the law

For this reason, one of the most important processes in the system we operate in is the appointment of judges. This process is intended to ensure that the person who is appointed as a judge or who is promoted to senior positions is qualified for that role. Not for reasons of vanity or pride, but because unless the right person is appointed, the law is bent and twisted out of shape. And the system we live in begins to disintegrate.

Think about it. If a judge is not sufficiently competent, he or she would decide cases wrongly. There are many consequences that flow from this: the litigant is denied justice and is put to the expense, cost and worry of an appeal. What if the appellate judges are similarly not competent and uphold the decision of the judge? The litigant loses the appeal, does not get the appropriate result. Justice has failed him or her.

It does not stop there. The appellate decision would stand as a precedent. The law then begins to develop at a tangent until that process is stopped by a correct decision of the appeals court, if that happens at all. And what if many of these tangents developed, different judges adjudicating differently, inconsistently. There would be uncertainty and with that, a non-functioning legal system.

This is very clearly seen in a commercial context. Commerce operates on certainty. If a commercial party enters into a deal, that party needs to be certain that it will work out as it should and that if it does not, then the courts will assist in obtaining a just result. The need for this certainty is at the heart of the commercial system. Lawyers advise their commercial clients based on what the law is in a particular area. Where there is coherence and consistency, there is no difficulty. But what if there are ‘tangents’ or inconsistent decisions, each one pointing to very different possibilities. The lawyers would not be able to advise with certainty, the commercial parties would not be able to assess their risks with certainty and eventually, because the risk is far too undefined, commerce comes to an end.

Corruption has the same effect. It puts the system of justice into a spin as law is twisted to a particular end, a desired conclusion. Judgments are not correct in law, occasion grave injustices and lead to a fracturing of the coherence that the law is premised on. Certainty is flung out the window and arbitrariness becomes the order of the day. Imagine the supreme court of a country deciding a case not according to the law and the facts but in accordance with the wishes of a party who has paid for a particular conclusion. That case does not end there. It remains as a precedent, to be followed by later cases. In that way, and many others, corruption not only leads to a particular litigant being denied justice. It leads to the dismantling of the entire system of justice.

The foregoing should serve to give you an idea of why Judges are crucial and why it is essential that only qualified candidates be appointed judges. What are the correct qualifications though. This is discussed in the next segment: Why A Judicial Appointments Commission (II)

[On 24th April 2007, the Bar Council will host a debate between Datuk Zaid Ibrahim and Dato’ Seri Mohamed Nazri on the motion: There is a Need, in Malaysia, to Establish an Independent Judicial Commission in Relation to the Promotion and Appointment of Judges. It is open to the public. Places are limited. To register or make enquiries please contact Lojini 03-20313003 X 101 or email rezib@malaysianbar.org.my]

MIS

2 comments:

Gan said...

MIS,

As a common person of the street, I too even understands that one of the most crtitical success factor to a sound judicial system is to have learned, upright and righteous judges to correctly interprete the law and ensure justice is fairly, systematically and consistently applied as required by the Federal Constitution withour fear or favour.

If each judge arbitrarily interpretes the law as per their own individual opinion which could be at odds with each other, then mayhem will prevail as the threads of this country's legal fabric will be torn in tatters.

That will definitely be the final straw towards us heading an anarchy state.

So ensuring an unblemish transparent process whereby who gets to sit on which Bench is of prime importance towards a sound judicial system.

MIS - I hope you and Harris's efforts will have a strong bearing towards the betterment of this country. On behalf of all those who stands for justice and equality - we thank both of you.

Malaysian Unplug said...

The announcement on the debate on 24th April at the Bar Council has been reposted and will stay on line on Malaysians Unplug and Uncensored website http://malaysianunplug.blogspot.com/ until after that date