Apppointment Of President, COA: Await Outcome Of Enquiry

The radical step of nominating Tan Sri Zaki Azmi the President of the Court of Appeal conclusively shows that the Government is blind to the crisis that the Judiciary, and consequently the legal system, is in the throes of. It also shows that the Abdullah Badawi administration views the Judiciary in much the same way the Mahathir administration did; the Judiciary is there to serve the Government’s interests, and not those of the nation (I say nominating as media reports indicate that the Yang Dipertuan Agong is yet to fix the date of appointment (see, for instance, ‘Abdul Hamid is new CJ, Zaki is judiciary’s No 2', Malaysiakini, 05.12.2007).

I do not intend to call into question the appropriateness of the decision to elevate Tan Sri Zaki to the bench. I have had the privilege of dealing with him as a lawyer over a period of time, and more recently as a judge, and have always found him to be courteous, incisive and approachable, key attributes of a good judge. His appointment as President is however, notwithstanding, a basis for concern.

Tan Sri Zaki is amongst the most junior members of the Judiciary, if not the most. He is the most junior Federal Court judge. He has to date only some two months experience as a sitting judge. This is in stark contrast to other justices of the Federal Court and the Superior Courts as a whole.

An appointment as one of the four office bearers of the Judiciary is a matter of pride. It is undoubtedly the aspiration of all judges to end their career at the Federal Court, if not as one of the four office bearers. The question of appointments to office as such has a very human dimension. Like all of us who serve, recognition of dedication and quality is signaled by promotions. This is true also for judges.

Many have called into question the constant bypassing of senior judges for promotion to the Court of Appeal and the Federal Court, for good reason. Over the last decade or so, we have witnessed a startling increase in the number of promotions of junior judges over their senior counterparts. The Bar has repeatedly made calls for the establishment of an independent judicial appointments and promotions commission. At its recent Extraordinary General Meeting, the Bar called on the Judiciary to support the move towards the establishment of such an independent commission.

In his opening address at the Malaysian Law Conference this year, His Royal Highness the Sultan of Perak expressed disquiet at the erosion of public confidence and a nostalgia for a time when the Judiciary was respected throughout the Commonwealth. Much of this erosion stems from the manner in which judges have been appointed and promoted.

Judicial morale is at a low just as public confidence is. Judges are uncertain of their futures, frustrated at the seemingly arbitrary manner in which promotions are handed out. It would not be unreasonable that many wish for a better, more effective and more respected judiciary. This sad state of affairs needs to be addressed. The Bar has maintained, correctly so, that its calls for reforms are not an attack on the attack on the judiciary. They are instead a defence of the Judiciary, its members and the legal system.

In this context, it is manifest that the nomination of Tan Sri Zaki as President can only send the wrong signal to Judges. Coming as it does so soon after his unprecedented direct elevation to the Federal Court, it suggests that there is no one worthy of the position in the Judiciary as things stand. It also strongly suggests that the Government itself has no confidence in the Judiciary.

It also sends the signal that the Government wants to retain control of the Judiciary. Tan Sri Zaki’s history of service to UMNO is not in itself a disqualifying factor for elevation to the bench. However, the special arrangement made for his direct elevation to the Federal Court and the alacrity with which the Government recommended him for the post of President, so soon after the refusal of an application for an extension of the term of Tun Ahmad Fairuz supported by the Government, is cause for concern even if limited to purely the realm of perception.

This is more so for the fact that one of the implications of the Lingam Video is that the Government has been interfering in the affairs of the Judiciary in a manner not countenanced by the Constitution. The fear is that this trend continues.

None of this augurs well for an ailing Judiciary. One wonders how many more shocks it can take.

One of the concerns that civil society groups and the Bar aim to raise before the Royal Commission of Enquiry on the Lingam Video is the need for an independent and transparent appointments and promotions mechanism. It is a widely held view that such a mechanism would go a long way in helping the Judiciary avoid the fallout of incidents such as the Lingam Video affair as well as addressing concerns about unwarranted Government interference.

In light of these concerns, and the crucial need to ensure higher levels of confidence in the Judiciary, it may be appropriate for the Yang Dipertuan Agong to defer the matter of the President, Court of Appeal, until after the Royal Commission delivers its findings. This would have the additional benefit of prompting the Government to act with greater urgency to address the unparalleled judicial crisis that the nation is currently confronted with.

MIS

The Call For Judicial Reform

In His Royal Highness Sultan Azlan Shah's address at the opening speech at the 14th Malaysian Law Conference, His Royal Highness called for a return to the glory days when the Malaysian Judiciary was "held in high esteem". The address has been carried in full by the media and blogs (and can be read here).

The call by the former Lord President (as the office of the Chief Justice was formerly known) for Judicial Reform is timely. In many ways the Malaysian justice system is at the point of no return. Something needs to be done, and done urgently.

While we, quite correctly, have tended to focus on the more abstract notion on the need for an independent and competent judiciary, and its crucial significance to a functioning democracy, the sustainability of development and growth of the nation, and to our daily lives as Malaysians, we may not have given sufficient attention to the retrogressive effects of the insular and uninspiring Judiciary that Malaysians have come to inherit over these last two decades or so, on the practical aspects of our lives.

The question of public confidence goes beyond judicial independence. It crosses over into the realm of competency and judiciousness on the part of judges. Judges decide cases. If the judges concerned are appellate judges (of the Court of Appeal or the Federal Court), their decisions become binding precedents on the High Court and the subordinate courts. If appellate decisions are arrived at incompetently, and as such erroneously, or by reason of influence, these decisions shape the future of the law. If such decisions were the exception rather than the norm, these decisions could be treated as anomalies to be corrected at the first opportunity. The damaging effects of these anomalies could be contained and limited.

But what if these anomalies were the norm as opposed to the exception? Would we not be reshaping the jurisprudence of the country in a way which was undermining of progress and sustainability. I have argued that the development of case law on the role of Islamic law in the public sphere has been premised on questionable decision after questionable decision. Despite the call for correction and a restatement of principle in accordance with settled principle, the momentum has carried the development of legal principle into highly questionable decisions contrary to binding precedent such as that of the majority of the Federal Court in the Lina Joy case.

This phenomenon has not been confined to these so-called controversial cases. These cases are just one aspect of the wider dynamic. The experience has been similar in the sphere of commercial law as well as civil law. So much so that many a litigation lawyer can, if pressed to honest response, of being asked questions such as "Is the judge competent enough to handle the issues involved?" or worse, "Is the judge capable of being influenced?"

As much as these questions may not necessarily be answered in the affirmative, it must be recognised that the questions are being asked. This is as much a manifestation of a lack of confidence as much as the seeking of alternative recourse in preference to dispute resolution through the courts, such as through arbitration.

The call for judicial reform by His Royal Highness is therefore not only timely but welcome for the fact of the recognition by such an august personality, not least for having been a well respected and admired Lord President, of a damning state of affairs. This should not be taken as an attack on the Judiciary as an institutions or individual judges but rather as a well founded critique of the underlying system and the manning of the system as observed by constitutional law scholar, Professor Shad Faruqi (see 'Full support for sultan's call', NST, 31.10.2007)

I aim to comment more on the subject, and will be doing so in a series of postings. For the moment, allow me to share an open letter to His Royal Highness from Martin Jalleh, a well regarded social commentator whose thoughts appear regularly on Malaysiakini. Martin was kind enough to forward me a copy of his open letter and has given me permission to reproduce the same here.

MIS

An Open Letter to YM Sultan Azlan Shah

Your Royal Highness,

Thank you very much for portraying the truth about the state of the country’s judiciary and your accompanying clarion call for major reforms in the judiciary during your opening address at the 14th Malaysian Law Conference recently.

You acknowledged with sadness that “there has been some disquiet about our judiciary over the past few years and in the more recent past…there have been even more disturbing events relating to the judiciary reported in the press”.

“We have also witnessed the unprecedented act of a former Court of Appeal judge writing in his post-retirement book of erroneous and questionable judgments delivered by our higher courts in a chapter under the heading ‘When Justice is Not Administered According to Law’.”

You highlighted “serious criticisms” against the judiciary such as delayed judgments and backlog in cases as a result of incompetence. You gave the example of a case of medical negligence involving a death of a lawyer which took 23 years to reach the Court of Appeal.

“Similarly there have been reports that some judges have taken years to write their grounds of judgments involving accused persons who have been convicted and languishing in death row.” (Like the judge who failed to deliver 35 judgments including four in which the convicted are languishing in jail despite being sentenced to death seven years ago?)

“Surely, such a situation cannot be tolerated in any progressive nation,” Your Royal Highness so very aptly concluded. The powers that be should therefore understand why the lawyers walked, the people talked and the rest blogged.

You have rightly pointed out that this is not the first time that you have expressed grave concern over the judiciary: “In 2004, I had stated that it grieved me, having been a member of the judiciary, whenever I heard allegations against the judiciary and the erosion of public confidence in the judiciary.”

Your Royal Highness had in June 2004 warned that “the erosion of public confidence in the judiciary’s independence would ultimately lead to instability and remedying it would be a protracted and arduous task.”

But, very evidently, the tell-me-the-truth Government has not been listening (even though it claims to be open). After saying that you had given a “very good speech” Minister in the Prime Minister’s Department, who is also the de facto Law Minister, Mohamed Nazri Abdul Aziz, told the press that the state of the judiciary that you had described was merely your “perception”.

Clearly contradicting the scenario that you had painted in your opening address, Nazri very proudly and loudly declared to the press that “there was no erosion of public confidence in the judiciary” (NST, 30.10.07).

You stressed in your opening address: “In matters concerning the judiciary, it is the public perception of the judiciary that ultimately matters. A judiciary loses its value and service to the community if there is no public confidence in its decision-making.”

When asked to comment on public confidence being an integral part of the judiciary Nazri said: “I agree but the public... what is the public? Does the public mean 1,000 or 2,000 people or the whole nation?” It was just as good as him saying “Does the public mean the voice of one Sultan?”

Your Royal Highness, if we were to apply and follow Nazri’s arguments and the twisted logic which he had used to arrive at his arguments, which appeared in a NST interview (28.10.07), your grave concerns would be deemed as “a false allegation”, a “perception created by some people…who are unhappy, make a lot of noise…” Yours (according to the Minister) will be a view of the “minority”.

Nazri had also insisted that there isn’t a crisis in the judiciary and that “(c)risis means it involves the whole country but nobody talks about it. I even asked my fellow members of parliament (MP) but nobody talks about it. So, what crisis are we talking about? The crisis is in the minds of those who created it.”

The NST interview caused Opposition Leader Lim Kit Siang to ask: “Will the de facto Law Minister, Datuk Seri Nazri Aziz dismiss Sultan Azlan Shah’s increasing “disquiet” about the crisis of confidence in the judiciary as a “false” perception and baseless allegation of one person, in the way he dismissed the concern of Malaysian Bar on the ground that it is no “big deal” as only 1,000 out of 13,000 lawyers or 26 million Malaysians had taken part in the “Walk for Justice” to the Prime Minister’s Office in Putrajaya?”

It now appears that the independence and future of the judiciary in our beloved country depends very much on the perception of one man – Mohamed Nazri Abdul Aziz. He had even made it very clear (last year) that we have to ‘convince’ him first if things are to improve significantly in the judiciary.

Perhaps Your Royal Highness could educate the minister with what you had written in the postscript to your book “Constitutional Monarchy, Rule of Law and Good Governance” (pp 399 – 401) in April 2004: “… statements made as to its independence (of the judiciary) by the judges, or even the politicians (my emphasis), do not measure public confidence in the judiciary. At the end of the day, it is this public perception that ultimately matters.”

As for the de facto Law Minister’s seeking refuge under the “silent majority” as “the public”, Nazri’s predecessor, Rais Yatim, who wrote “Freedom under Executive Power In Malaysia: A Study of Executive Supremacy”, would be able to unveil the Minister’s cheap and stale political trick:

The “…supremacy of the executive can be achieved and maintained within the so-called democratic process through political manipulations. This is exemplified by the very mechanism of democracy, namely, majoritism, which since Merdeka in 1957 the executive branch of government in Malaysia has been able to render subservient both the judiciary as well as the parliament.”

Your Royal Highness, one can understand why you are “driven nostalgically to look back to a time when our judiciary was the pride of the region and our neighbours spoke admiringly of our legal system” and we were then “second to none and the judgments of our courts were quoted confidently in other common law jurisdictions”.

Today, we are driven nauseatingly to look back at our judiciary. The region and our neighbours still talk about us. We have become a laughing stock. We are second to none when it comes to kangaroo courts and court jesters like the de facto Law Minister. The judgments of our courts are often quoted in political satire and online comic scripts.

May Your Royal Highness continue to speak out boldly on common law jurisdictions and the judiciary on behalf of the common man (and woman) as it has become increasingly common knowledge to many of us that we are being led by a Government tragically lacking in common sense.

A proud and loyal son of Perak,
Martin Jalleh
31 October 2007