©The Sun (Used by permission)
In this two–part column, Radzuan Halim explores ways of improving our judiciary and comes up with some novel approaches
It is generally assumed that it is the highest, if not the only, purpose of law to do justice. As it is put in the Promissory Oaths Act, 1868, s4, ‘to do right ... without fear or favour’. – Professor Harold Potter, 1951
Judges and Senates have been bought for gold, Esteem and Love were never to be sold. – Alexander Pope, An Essay on Man, 1733
THERE was a spirited response by Malaysians to recent appointments to the two highest positions in the judiciary. Generally, the new Chief Justice had a warm welcome while the Court of Appeal President had a more mixed, partisan reception.
The new Chief Justice is a welcome change to the landscape. He has an unblemished record and lawyers who had appeared before him find him to be fair, gracious and hardworking. Alas, he is already 65, so the nation can have him as its Chief Justice for only a few months.
We now have a vociferous response to judicial appointments as the citizenry is now more educated, informed and critical. Today’s public is prepared to evaluate for themselves judicial appointees, their qualification, experience, character and reputation. There is greater awareness of the important role judges play in the political, social and economic life of the nation. After all only judges can interpret the law, decide on disputes and send people to prison.
Independence
Much has been said of the need for judges to be independent. Independence has to be considered on at least two levels – that of the institution (judiciary) and that of the individual judge. At the institution (judiciary) level, it is desirable for the judiciary to be free from interference by the executive branch. This goes back to the concept of democracy, separation of powers and the rights of man.
At the individual level, the sitting judge must be free to decide based on the law and on the facts and evidence produced in court (no calls from superiors, please).
There is in reality no such thing as complete independence for judicial appointments would usually be made by the executive, with varying inputs from the legislature and professional bodies.
In the United States, the Senate plays an important role in approving high judicial appointments. For most countries, including Britain and Malaysia, the decision is almost totally with the executive. And when we say that judicial appointments are made by the executive, it means that politicians get to decide.
Not surprisingly, politicians tend to appoint judges who share their political leanings: A Republican US president would not propose a pro–abortion appointee while a Democrat president would select pro–affirmative action appointees. A British Tory government would not elevate left–leaning counsel, and so on.
At the individual judge level, I find “independence” to be a nebulous concept. In the first place, a judge is not free to amend or interpret the law as he pleases. He is subject to the doctrine of precedents, the stare decisis.
Second, he has to work within the facts, witnesses and evidence produced in court. He cannot come to perverse or unreasonable conclusions or go on a frolic of his own.
Third, a judge has to take cognisance of the national and social context within which the justice system operates. If crime is rife and it is difficult to apprehend murderers, illegal loggers and polluters, we expect judges to adopt a robust, yet fair approach when dealing with such cases.
The public would be right to frown upon acquittals based on super–fine technicalities and over–lenient sentences. Personally, I would not worry too much over the issue of “independence”.
Corruption
Corruption, however, is a different kettle of fish altogether. A far more important quality for a judge is to be free from corruption. A judge has to decide upon a dispute involving two parties in a civil case, or between the crown and the accused in a criminal case.
If the judge is corrupt, one side in a civil dispute will obtain an unfair advantage while criminals able to pay will get off scot–free.
It is right that the new Chief Justice should be talking so candidly of judicial corruption. The public is worried over the extent of it and so should the judiciary.
Conscience
One of my least favourite remarks coming from a judge is: “My conscience is clear.” A judge should decide based on the law and the evidence, not his conscience.
How is the public to evaluate anyone’s conscience? It is observed that even apprehended suicide bombers can sleep peacefully at night.
According to Professor Harry Potter, a judge who decides “in conscience”, claims to a higher knowledge, the knowledge of good and evil, which can only lead to oppression. He quoted a medieval judge who once said: “The thought of man is not triable, because the devil himself knoweth not the thought of man.”
As such, judges should justify themselves through their reasoned, written judgments containing their treatment of the law and the evidence presented. Their ability to sleep at night is not the concern of the general public.
Judge and jury
Going by the Magna Carta and the United States’ Constitution, the right to trial by jury is a cornerstone of the common law. For practical reasons, however, trial by jury has been much reduced in Britain and in Malaysia, it has been almost totally eliminated. While there is no longer a jury in Malaysian criminal trials, the functions of the jury have not been eliminated, as these functions have now been taken up by the sitting judge.
We still have distinct issues for the judge and distinct issues for the jury, although both are now handled by the judge. In other words, at various stages in the trial, the judge has to wear the “jury hat” and the “judge’s wig”.
In my view, the long absence of jury trials in Malaysia has led to some confusion in the conduct of criminal trials. I am referring here to the prime facie test applied by judges at the end of the prosecution case.
The prima facie test currently being applied is not appropriate in that the judge has proceeded to put on the “jury hat” too early. Rightfully, at the end of the prosecution case, the judge should only be deciding whether it is safe to pass the issue(s) to the jury. The judge should not at this early stage be weighing the cogency of the prosecution evidence and believability of witnesses but save it for later, after the totality of the evidence, including accused evidence, is heard.
Form over substance
Sometime back when the relationship between Bar and Bench was at its lowest, court staff were directed to reject court documents, such as affidavits, which did not fulfil the standard margins – those untyped one–inch borders on each page that careful typists would observe.
Pursuing a similar vein, judges were told to summarily dismiss/decide against in cases set for hearing in which the respective counsel were absent. The earlier practice was to give a bit of time for counsel caught in traffic jams or making their way from another court hearing nearby. Just imagine the consequences for a party before the court. He might have been waiting for two years or more just to learn that his case has been thrown out (or having to wait another two years) just because his counsel was late by 15 minutes.
There’s much to be said for discipline and punctuality on the part of lawyers, but sudden changes which can only inconvenience or cause severe hardship to the general public (lawyers’ clients) should have been avoided.
Problems involving the Bar and Bench should be resolved in the spirit by cooperation so as not to cause injustice to other parties.
Judicial grace
Among my court–lawyer friends, a quality of judges which they hold dear is graciousness. A gracious judge is one who displays patience, listens carefully and is restrained in the display of temper.
Counsel are generally prepared to lose their cases since the opposing side might have a better claim, but they dislike being admonished in open court before their clients, fellow professionals and witnesses. Of course there are instances where counsel “deserve” to be scolded, as when they waste the court’s time with frivolous claims or attempt to mislead the court.
Work ethics
The Chief Justice summed up this important judicial quality with a simple exhortation to judges and his subordinates, “Do your work”. He also gave various examples of the types of negligent work commonly committed by judges. The public has seen enough work ethics–related problems – judgments delivered up to 20 years after trial, judgments not delivered at all, and so forth.
Prompt delivery of written judgment is necessary because appeals can only proceed once the grounds of judgment are delivered.
Of course not all judges are tardy. The public mainly see judges at work when they preside at open trials. They do not see the hearings in chambers, tidying up notes taken during trial, examining written affidavits and poring over voluminous legal authorities.
As a law teacher, I do detect one serious weakness in the decisions delivered by many Malaysian judges. It is in the failure to provide a full and clear account of the facts of the case before them. Often the facts provided are too brief and do not adequately capture the factual circumstances leading to the dispute. Without proper treatment of the facts, the case reports do not provide suitable material for students learning law for the first time or as authorities to guide counsel and other judges in the future.
» To be continued
(Please click here to read the second part)