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Tuesday, February 24, 2009

Serving Justice, Straight Up

Serving justice, straight up

It took me a while to understand that in as much as contract, commercial, criminal, constitutional or any other field of law was important, the existence of a functioning system by which the law was applied and enforced was far more crucial. For without such a system, it would not matter at all that there were laws.

When I first graduated from law school, I believed that all things said and done we had such a system. I am almost certain now that we do not.

We have courts, some of them in very opulent buildings that are akin to palaces. We have judges at all levels, be it at the subordinate courts or into the dizzying heights of the judicial hierarchy. There is in place an Attorney General’s Chambers from which spring a number of federal counsel and deputy public prosecutors who represent the State in its legal endeavours. They are complemented by a host of lawyers who, together with their counterparts from the civil service, apply laws that have been duly enacted by legislative chambers and Parliament respectively.

Impressive, one could say. I however reserve my judgment. Just like cameras, there are “point and shoot” lawyers and judges, and there are the far more sophisticated and capable ones. Both serve their purpose but one category serves it far better, something to think about considering the legal system is one whose standard cannot be compromised for any reason at all. Lives, in the widest sense, are at stake. They are being put at risk by the kind of individuals being allowed into the system.

All this however does not directly answer the question of whether the system is one that is functioning effectively. In this, it must be understood that the ultimate arbiter of whether a legal system is effective is the public that the system is intended to serve. The level of public confidence in the system is the only yardstick by which this effectiveness can be measured.

The stark reality is that the average Malaysian entertains grave doubts about the integrity or competence or both of those who make up the system (and in this, I tar lawyers with the same brush). From a public confidence standpoint, it could be said that the system is not functioning.

We cannot blame them for so doubting. Controversy upon controversy, many of which were unnecessary and avoidable, have impacted. Suspicions have been given foundation by the findings and recommendations of a Royal Commission of Enquiry that lambasted the system and urged urgent corrective measures. One cannot fault the average Malaysian for thinking justice is no longer the sacrosanct quality that it is meant to be, having instead transformed into something pliable that can be moulded to convenience.

This has had ramifications it seems. Malaysians have no alternative but to take their cases to the courts, it is the only way in which they can have their legal disputes resolved. Faced with a system that they have come to perceive as lopsided and pliable, it appears that they have attempted to improve, or at the very least even out, their odds where they have been able to do so. If the system were seen and understood to be unyielding, this would not be occurring.

It is perception that fuels belief that the system is hardly working as it should. As a lawyer, this saddens me, not because I think it is an unfair assessment but because I can see why it is they might believe this to be the case. Over the last twenty years the Judiciary has taken a beating, inside and out. It seems like every Chief Justice since Tun Dzaiddin started his term with laudable declarations concerning the need for reform only to subsequently find that the problem areas were so entrenched that resolving them was neither easy nor possible in their limited terms of tenure. Promises unfulfilled have deepened distrust.

It is high time that those who manage the institutions in ours system of justice wake up to the hard truth that mere rhetoric and superficial changes will not serve any purpose in attempts to rebuild confidence. Efforts must be real and driven by a desire to deliver to Malaysians objective justice at its keenest. It is not enough to say that there are those in the system who do just that. Though that may be the case, there are seemingly those who do not. It must be understood why this is the case and what can be done. The situation is desperate and calls for extreme measures.

Crucially, the system must be seen to be delivering justice. It is a cardinal rule of justice that not only must it be done, it must be seen to be done. The appearance of impartiality is paramount in building public confidence in the system. In this, standards must be seen to be applied uniformly, without exception. Explanations as to why they are not, do not go very far in explaining away the fact that they are not.

Perception is key. Without the public having confidence in the system, justice will never be served.

(Malay Mail; 24th February 2009)



zorro said...

You will be this Friday's Guest Blogger. I am not asking for permission. Easier to ask for forgiveness than permission! Cheers.

Anonymous said...

Very perceptive, and aptly stated.

That is why a most wise king from ancient time wrote:

"If the foundations be destroyed, what can the righteous do?"

There is enough laws in this nation... but the system to ensure the rule of law has been destroyed.

The righteous like yourself are fighting against tyranny.

Anonymous said...

3rd para: "complimented" --> "complemented".

BareSheen said...

Well said Malik.

I practised for 6 years. Gave it up for the reasons that you have enumerated. That was more than a decade ago.

It is so sad to note that things have not improve an iota. In fact, it seems to have gotten worse.

Like a fish, the rot starts from the top. To me, BN is the head. That head must be chopped off without any mercy. Post March 8 events show clearly, without any doubt, that no positive change will ever occur within and from BN.

This raping of the various institutions in our beloved country must be stopped.

I am looking forward to the next GE so that I can do my part to chop off this diseased head.

All else is futile.

Anonymous said...

well written, bro... & well done again, yesterday.

it's sad that the system has lost total credibility to the rakyat who depends on it...

it's sadder that our PM is still PROUD of it =/

Old Fart said...

Very well written and articulated. Only serves to increase my sense of frustration and helplessness.

Not only what you have identified here, but to add to the list I agonise over the ommissions in the legal documents that give power and authority to Ministers without caution.

The ISA for instance grants indiscretionary powers to the Home Minister to interprete and act upon any individual and his actions and assign to that person and his or her actions a label such as "threat to security" and have him or her detained without trial.

Yet the said act does not caution that the Home Minister, at the time of acting on his powers be sane, competent and rational. Remaining silent on this subject, the ISA assumes the Home Minister is at all times sane, competent rational and in control of his faculties.

To me, Syed Hamid Albar's actions on the day he had Raja Petra detained together with Theresa Kok and the Sin Chew reporter, by his own admission, there was incompetence, insanity or irrationality in active control of his actions. For him to suggest that the referenced article was insulting of Islam, when it was far from it, showed total incompetence.

Yet, I suppose, since he has signed on the appropriate forms, his will prevails.

Since so far the test of the Home Minister's assumed competence, sanity or rationality has not been called to be tested it seems to me that the law as practiced does not require such tests and the assumptions are accepted as a given.

That makes me want to scream!

aiyomanaboleh said...

But we must always have faith that however long and difficult the journey, it will see us through to a better tomorrow.

Anonymous said...

"The stark reality is that the average Malaysian entertains grave doubts about the integrity or competence or both of those who make up the system (and in this, I tar lawyers with the same brush)."


I agree that the competence of the lawyers, judicial officers and judges depends on the kind of person we allow into the system.

We have to question whether the best and the brightest are entering into the profession. I am not sure. However, I have a few friends from school who are now lawyers. We were not the best students in school. In fact, there were like 50-60 students better than us from our class.

There could be many reasons why the best and the brightest choose not to become lawyers. Let me give 2 of these:-

1. Between late 80's and late 90's there was an overemphasis on the importance of science and technology. The best and the brightest went to the science stream and took up science based subject in university. Some became accountants because these students could do math in school. (how many times have we heard lawyers saying they became lawyers coz they could not do math!). So the best and the brightest ended up as, well non-lawyers. Taking-up law was the next best thing to do, available for those who did not quite make it.

2. I also think that many are put off from becoming lawyers because of the perceived corruption in the judiciary. Corruption in the judiciary involves not only accepting bribes for agreeing to decide in certain ways but also giving judgment not in accordance with the law and facts due to extra-judicial factors, particularly orders from the top, pressure from the executive etc. Because cases are not decided based on the law and facts, there is not much reason for people to be inspired to become lawyers. There is no need for good lawyers. Good lawyers too cannot deliver. One might as well pay the judges than pay good lawyers. This lowers the importance and the need for good layers in the society. If good lawyers are not required, why become one? So the best and the brightest will enter professions where their talents will be appreciated and where they could make a difference.

Anonymous said...

I am glad to now know that there are people like you, Haris and the others who have been persistently chipping away in your various legal fights to bring Malaysia's laws and judicial system and processes to the point where we can say justice is being done.
Keep up the good work and you did excellent at RPK's trial last sunday.

Implosion said...

It is everyone's hope that lawyers like yourself will inspire lawyers of the next generation.

If Malaysians who never make it to the voting booth can ever be awakened from apathy, I believe the power of change is really in the hands of the people.

Anonymous said...

Road less travelled is a road worth travelled. You have selected that road, brother and you have my support!

flyer168 said...

Dear Malik,

Very well written article & we all share your frustrations with the way Democracy & the Rule of law has been manupulated in this Bolehland.

May I just say this....

Sad to see this great nation Malaysia administered by the British Tuans, then handed over to the Malaysian TUANS under Bapa Malaysia Tunku Abdul Rahman Putra & his Malaysian cabinet of TRUE TUANS managing the system of Wesminster style Democracy & with the Rule of Law in 1957,

- getting "Hijacked & Betrayed" by the "Elite UMNO Ketetuanan BEGGARS" in 1969....

- some of those are still "Alive, Kicking & Mentoring ALL the New Ketetuanan Beggar Wannabes"

- To be a Public figure, one must be established, sincere, honest, credible, transparent & above board - should be opened to scrutinization like in the US.
- Many of our Leaders today have "skeletons" of their past in their closets (some have their family's baggages as well!),
- so how can they be "Honourable" to carry out their duties diligently without "Fear or favour", even after taking an "Oath" to the King/Sultan/the nation & rayaat."

- Former Lord President Tun Mohamed Suffian Hashim repeatedly insisted in his foundational written texts that in Malaysia,

- “the constitution and nothing but the constitution is “the supreme law of the land”.

- “Malaysia cannot afford to see constitutional principles imperilled, and constitutional processes jeopardised -

- not even out of an understandable impatience, or a conscientious determination, to see the urgent political and practical problems of the day speedily resolved.”

- You & your great League of Brilliant Constitutional/Defence lawyers have researched & done your "Best" against the "Opressors", so let us all pray & let God Almighty do the rest.

- Things are brewing HOT in Perak & UMNO/BN is still in “Denial” even at this 11th hour of our nation’s “Political & Financial tsunami” -

What is new in this Bolehland....

Democracy vs Gutter Politics & Rule of Law vs Law of the Jungle!

- Do you know what else is happening in this Bolehland ?

- With the "Double Whammy" Financial & Political Tsunami at our doorsteps....

- there is still no "Structured Contingency plan nor Quantums" in place...

-Whilst the G20 Presidents/PMs/FMs/Governments are strategising & synergising their positions on the GLOBAL FINANCIAL "Chess Board"....

Further in this Bolehland....

Mahathir wants to retire gracefully but....cannot yet...

- with Mukhriz's position still "Hung."

- Pak lah also wants to retire gracefully but....cannot yet...
- with SIL's position still "Hung."

PR & the Rayaat wants to move on in Perak but....cannot yet....

- the PR/BN State Assembly still "Hung."

- Bank Negara's Zeti also wants to retire gracefully with a UN position but....cannot yet...

- as PM & Finance Minister/PM wannabe are still...

"Quarreling with PR & Anak Bangsa Malaysia with POLITICS JAGUH KAMPONG ala KINDERGARTEN style & still playing with Marbles" when all the other nation's PM & FM are playing "Chess."

- Desperate People, at Desperate Times, will RESORT to Desperate Henious Actions even if it means “Destroying” their “Honourable Family Legacy”, their own “MALAY MUSLIM HADHARI” party “UMNO” beyond “Redemption”, their Own Kind, this country & its Many People !

Through “Devine” intervention, UMNO, its Leaders & their Lapdogs are now “Outdoing & Destroying” each other with their “Power, Greed & Henious Crimes”

- the “Opressors” will “FAIL” & God Almighty will ensure "Justice” will be done.

- Every new day will be another “New Revelation” to reveal the “Truth” in its Self Destruct motion towards its “Demise”.

Just give them enough rope to “Hang” themselves at every turn in their “Final” chapter.

Anonymous said...

Justice can only be seen to be done when the CJ and his cruise in the Judiciary was appointed through advice & recommendation by NONE from any member of the EXECUTIVE ! Our Independent Judicial Appointment Commission "Sound Good In Name only" but NOT in Form & Substance. Judges are "made" to be accountable and answerable to the EXEcutive but NOT to Rakyat who seek righteousness and justice in the court of law. Constitutional Law of the land has been replaced by "Executive Law" to serve the few ones.

Whatif said...

As I see it, almost all the pillars of democracy in Malaysia have been compromised since the late 80's by that one man.

There is no way we could get Malaysia back on her feet with the present regime.

The police force is only serving the government of the day, the Judiciary is in shambles and our Constitution has been amended so many times which, more often than not, were done against the spirit of the Constitution. The Royalty too has not been spared.

All these sound very demoralising. But fret not, we still have our last bastion of hope, the last remainding pillar of democracy. Although coerced, intimidated and battered, we the Rakyat, must stand together in solidarity in the defence of our beloved nation.

We must educate our people on the basic tenets of democracy where all citizens are free and equal and all given the basic rights to live in security and in harmony with one another.

Utmost is the importance of our vote which holds the key to the type of government we want. The destiny of our nation would collectively rest on that one vote of the individual.

For the sake of Malaysia and our future generations, we have to strive for it, come what may!

God bless Malaysia!