©New
Sunday Times (Used by permission)
by Aniza Damis
This year marks the 20th year since the 1988 judicial crisis, an event which is attributed to the downfall of what was seen, until then, as a robust and internationally–respected judiciary. This year, however, also seems to be a turning point with . The prime mover being the Royal Commission of Inquiry into the V.K. Lingam video clip, which brings renewed hope that the glory days of the judiciary can be slowly restored, writes Aniza Damis
IN GREEK tragedies, there is a literary element called "catharsis", which brings
a closure to a drama. Having followed the protagonist through his turmoil, the
drama reaches the end, which purges the audience of the distress they have felt
throughout the story and brings about closure.
The catharsis is sometimes seen as an instance of "cleansing" and "renewal". The
audience can go home feeling satisfied in the way the drama ended, knowing that
order has been restored. This is known as the "cathartic effect".
The inquiry into the V.K. Lingam video clip this past month has been seen as a
big drama, revealing the decline of the judiciary since 1988.
And in legal and judicial circles, the inquiry is often described as
"cathartic".
This suggests an end to the event, and a cleansing and
renewal of the judiciary.
Former Court of Appeal judge Datuk K.C. Vohrah said: "I am relieved that the
worst is over.
"The Royal Commission of Inquiry has done a good job of exposing what was wrong
with the judiciary. It's a good thing because everything's come out in the
open," said Vohrah, who is also Human Rights Commission of Malaysia (Suhakam)
commissioner.
"We are not disgracing the judiciary by having this inquiry; we are trying to
save it."
Bar Council president Ambiga Sreenevasan concurs.
"I think we need to confront the ghosts of our past, which is partly what is
taking place in the royal commission.
"If there are big issues like corruption that have to be dealt with from the
past, then we have to be honest and deal with it and not pretend that it never
happened."
Although the inquiry may have seemingly brought the judiciary into even more
disrepute, all agree that it was necessary.
Transparency International Mal–aysia president Tan Sri Ramon Navaratnam said:
"It would have been more damaging to have swept the whole matter under the
carpet."
Former Court of Appeal judge Datuk Shaik Daud Ismail agrees. "If we hadn't had
the inquiry, the rot would have continued."
The best thing about the inquiry, said Vohrah, was that it showed that the
scandal didn't involve a lot of judges.
Each person interviewed believes that the inquiry is a pivotal point.
Ambiga said: "It is to the credit of the Abdullah Ahmad Badawi administration
that we've had this inquiry.
"We should be proud that we are prepared to uncover the truth.
"Although the truth that is coming out appears frightening, but if it's the
truth, however unpleasant it may seem, we have to deal with it.
"I think it will lead to a strengthening of the judiciary, because we have shown
that we are not afraid to deal with the truth.
"We must allow the truth to come out. This inquiry shows that the government is
serious about these issues."
This optimism seems to be buoyed not only by the public "cleansing" of the
judiciary through the inquiry, but also by the appointment of the new chief
justice, Datuk Abdul Hamid Mohamad.
Seen as a "clean man" and a person of integrity, Abdul Hamid bears the burden of
expectation to turn the judiciary around from the inside.
Ambiga said: "We are entering a new era in the judiciary with the appointment of
the new chief justice.
"Look at the CJ's inaugural speech. It's the speech of an honest man. Only an
honest CJ can give that speech.
"The very fact that we have a man like him at the helm, who is clear cut about
work ethics, integrity and independence, shows that we are serious.
"The person at the top always matters. Sometimes it does take one man to start
the trend. If it is a man who is of the highest integrity, and to whom no one is
beholden to, the whole atmosphere changes. And that can make a difference.
"People don't fear that they are going to be transferred if they don't fall in
line. And if those fears are not there, then the feeling of independence is
there."
Having seen good top judges in their time, all agree that a good chief justice
can change things around.
How much of a difference does a good person make?
Vohrah said: "In the United Kingdom, the lord chancellor only has to call up the
judge for a problem to stop."
So, what is needed here is for the chief justice to call the offending person
and censure him with threat of action.
Shaik Daud said: "If a judge has not written a judgment, the CJ should take
action. Even if it is one or two judgemnts.
"You shouldn't wait for even five judgments to accumulate, and definitely not up
to 35 judgments," he said, referring to one judge who accumulated such a backlog
of unwritten judgments during the last chief justice Tun Ahmad Fairuz Sheikh
Abdul Halim's tenure.
The top judge should always check on the workings of other judges.
Which is why there is so much confidence in the new chief justice, and a belief
that he is the right and ideal choice.
Shaik Daud said: "The top man must not only be clean, but be seen to be clean.
If you show that you cannot be bought, then no one will come to you (trying to
corrupt you)."
But amid the rejoicing over the appointment of Abdul Hamid and the recent
six–month extension of his tenure (he will retire in October), is the sad
thought that "time is not on the man's side", as Vohrah said.
Navaratnam said: "If the government finds him suitable, then give him a longer
term and a stronger mandate to make changes."
The government should make provisions in the Constitution whereby, if it is
found that the chief justice is good, then his term can be extended. But this
should be done on a case–by–case basis only, said Shaik Daud.
Ambiga, although acknowledging that more time for Abdul Hamid would have been
nice, said there were enough good judges who could take over.
But while all four agree that the new CJ can make a difference, all also believe
that the only way to redeem the judiciary's image is to have an independent
commission for the appointment and promotion of judges.
Shaik Daud said: "At the moment, the prime minister has no way of knowing
whether the CJ's recommendations are good or not. He just has to trust the CJ."
In the past, although the same method was used, there was a lot of consultation
between the CJ and other parties involved, like the Bar Council, or serving
judges.
"Tun Suffian (Hashim, a former lord president) would sometimes come to me and
ask, 'What do you think about this person? Has he appeared before you?' And you
would give your opinion.
"The same during Raja Azlan's time (now Sultan Azlan Shah of Perak) when he was
lord president (what a chief justice was called then). He would consult judges
and the Bar," said Shaik Daud.
This system stopped after 1988.
The judiciary could get better if a commission was appointed, they said. Vohrah
said: "Even a magistrate is appointed by a commission.
"And yet a High Court judge, who's got so much power, is appointed by just one
person. It's not right."
Although the idea has been mooted for many years, all agree that the time to
implement that idea cannot be delayed any longer. All hope that this is what the
Royal Commission of Inquiry will recommend in its report.
Shaik Daud said: "The procedure must change. There needs to be consultation. Get
the right people in and be open about it.
"Politicians and businessmen can be consulted, but they should not be the prime
movers in the appointments process."
And, although de facto Law Minister Datuk Seri Nazri Aziz has argued that for
the government to institute the appointments commission would be interfering
with the judiciary, Shaik Daud counter–argued, saying that it was the
prerogative of the government to choose the procedure of appointing judges.
"Who adopted this present method? It was the government. They adopted the
procedure from England. So, it is your prerogative to choose the method.
"What we are suggesting is that the government appoint this commission. It's not
that the government appoints the judges.
"Interfering means that you interfere with a judge's decision–making process.
But this isn't what we are suggesting at all."
Apart from the appointments commission, Vohrah said another commission of
inquiry should be set up to explore the issue of corruption.
"We need to look into the ills of the past, to bring to book those who have
subverted justice."
Towards this end, said Ambiga, the Bar Council, in a joint committee with the
International Bar Association, Lawasia and Transparency International Malaysia,
had set up a panel of eminent persons to look into the 1988 crisis, and
everything that happened after that.
"We need to look into the past and understand how we got to this point."
Another body should also be set up to look into what needs to be done for the
judiciary, "in the same way as we had a Royal Commission for the Police Force",
said Vohrah.
With this, there would also be a need for a formal complaints mechanism to give
people a channel or avenue for complaints.
Shaik Daud said: "At the moment, people are afraid to make complaints against a
judge, because whistleblowers become victims."
He said anonymous letters should not be ignored just because they were unsigned.
"Probe it. Check for solid evidence."
These suggestions are made because of a belief, driven by the setting up of the
commission of inquiry, as well as the appointment of the new CJ, that things are
getting better and that they can get better.
Having started the process of change, those interviewed hope the government will
continue with it.
To what extent depended on the action taken after the inquiry, they said. Vohrah
said: "The cathartic process isn't over yet."
Navaratnam said: "We are on a slippery slope, but we can stop ourselves from
going down that slope. All that is needed is the political will."
Ambiga said: "At the end of the day, every society has its problems. It really
depends on how we respond to those problems."
Excerpts from the chief justice's speech at his swearing
in on Dec 11: ‘I’m determined to do what is right’
I AM aware this appointment is a heavy burden on me. It is more so when it
happens at a very challenging time, when public perceptions of the judiciary are
disturbing; when the integrity of the courts in the administration of justice is
doubted; when appointments and the behaviour of judges and their commitments in
the discharge of their duties, are all being questioned.
The fact such negative perceptions exist does not necessarily
mean such perceptions are all true. But public perceptions are not formed in a
matter of days.
It takes time to develop and spread based on facts heard and seen by them which
may be true and may be not.
In any event, we cannot simply brush them aside. To the judiciary, the very fact
such negative perceptions exist is sufficient for us to take them seriously.
This is because the judiciary is the only agency that has been entrusted by the
Constitution to administer justice between individuals and individuals,
individuals and the government, individuals and companies, companies and
companies and so on, involving human life, property, human rights and so on.
Besides, the judiciary is the last frontier of a nation.
Whatever views the people may have regarding the other branches of the
government, so long as they still have confidence in the integrity and the
effectiveness of the courts, there is still room for the continuity of a civil
society and law and order. When the people no longer have confidence in the
courts, there will be chaos.
Therefore, to me, whether the perceptions are true or not is immaterial. What is
important is they exist. So, we have to act to correct the perceptions and we
have to act fast.
There is really no short cut to it. The only effective way is for all judges,
officers and staff of the courts at all levels to work hard, honestly and
transparently.
We have to reflect on ourselves to see whether there is anything in our
behaviour, our relationships, including those of our immediate family members
and close associates which may give rise to such negative perceptions and, if
there are, to correct the situation.
We have to work hard to prove that the perceptions are wrong, or even if there
are some truths, that the causes have been remedied.
In other words, we have to revive public confidence, not through slogans, not
through propaganda, not only through prayers, but by showing results which by
themselves will negate the perceptions. Towards that end, we will have to work
hard and honestly.
At times, we hear rumours regarding allegations of corruption involving judges
and officers of the courts. So far, I do not know whether they are true or not.
If they are true, I appeal to those who have the information about such wrong
doings to come forward. I shall not compromise on this issue.
The independence of the judiciary must be safeguarded. However, the independence
of the judiciary does not mean siding any party in any dispute, such as siding
an individual as against the government, an employee as against an employer, a
victim of an accident as against an insurance company or vice versa.
The independence of the judiciary means giving decision in a case based on law
and evidence adduced in court without bias, without being influenced or
pressured by any party.
Regarding the independence of the judiciary and separation of powers, the
relationship between the judiciary and the other branches of the government
should be based on mutual respect.
Just as the judiciary does not like its jurisdiction to be encroached upon, the
judiciary too should respect the jurisdiction of the other branches of the
government. The three branches of the government should move in tandem, within
the limits of their respective jurisdictions, in the interest of Malaysia.
I believe the independence of judges in the discharge of their duties comes from
within themselves. If we are firm, honest and clean in the discharge of our
duties, no one would dare to approach us to influence or to buy us out, or once
they try but are unsuccessful, they would not try again.
But, if we ourselves go about lobbying for appointment as judges or to be
promoted, then, we are the ones who have compromised our independence.
To me, a person who lobbies to be appointed a judge has compromised the
independence of the judiciary even before he is appointed.
A judge who lobbies to be promoted has compromised the independence of the
judiciary even before he is promoted.
Similarly, if we ourselves, directly or indirectly, give the impression that we
can be approached, then, actually, we are inviting it. What more if we ourselves
are the ones who look for it.
The question is: is our character strong enough?
To those who have or intend to pervert the course of justice whether through
influence, pressure or money, no matter how big, influential or rich they are, I
say they are the enemies of justice.
While justice is our aim, we should remember that the justice we administer is
justice according to law, not justice according to our own whims and fancies.
And the law we apply is the law of Malaysia.
I am aware that even if with the grace of God Almighty I were to live long
enough, my term of office as chief justice will be a very brief one.
But, even if, by the will of God Almighty I were to occupy the office for only
one day, during that one day, I am determined to do what I honestly believe to
be right, as best as I can.
Whether my best is good enough is for the public to judge.
Believe me that, eventually, honesty supersedes all. And, believe me that,
eventually, truth always prevails.
Lastly, if I were asked to choose a slogan, this is my choice: buat kerja (Do
the work).
Thank you.