May Day For Justice
by Tun Mohamed Salleh Abas, Former Lord President, Supreme Court of Malaysia, with K Das
Is The Malaysian Judiciary Independent?
It has been seriously suggested that the Judiciary in Malaysia was never truly independent, that it has always tended to favour the Executive when any case was in doubt. It has been attacked in the belief that judges tend to act as if they believe in the supremacy of Parliament rather than the supremacy of the Constitution. There is also the theory that because most of our judges rise from the civil service rather than the private sector force of habit and weight of experience make them more Executive-minded and Executive-oriented than the Executive itself.
There may be elements of truth in all these thoughts, but we must look beyond those theories, guesses and allegations. Part truths must not be sanctified by carelessly embracing them.
Independence is not license; it is not total freedom. It is only a state of being free from unreasonable interference.
The fact is that we are the product of a very recent political culture which has suddenly descended upon our environment and burgeoned in the past 50 years or so. At the same time, many of us were educated in the system of law created and bred in another environment besides our own, and we have yet to come to grips with the problem of transplanting that alien legal culture onto a very different political soil.
And thus the judicial independence we value is a concept that is not even understood by the majority of our legislators, let alone the ordinary farmer or the man in the city street. To most people the services of an independent judiciary was something they enjoyed without appreciating that it is not a cheap commodity and that it is not self-sustaining.
The job at hand, one may say, is like planting apple trees in our soil which supports bananas and durians very well. But the fact is that we like apples, as we do dates from Arabia and mandarins from China. Fruits like these will take time to adapt, and if we must have apples in plenty, we have to labour very hard indeed to develop a healthy variety which can thrive in our bright sunshine and heavy rains. It means serious study and research, determination and persistence, and the faith perhaps that an apple a day does indeed keep the doctor away.
If judges sometimes err it is not because the system we have adopted is a bad one. They err because they are human. We should not be surprised.
It has been argued that we, as a people, are very different from those who developed the legal system we have accepted, and that therefore it may not be suitable for us, and that we should consider jettisoning it. That is a crude and superficial view.
We can no more discard it than Muslims in China can discard Islamic values in China or the Balinese can discard Hindu values in Indonesia simply because the ideas originated outside their countries. A system of thought does not suddenly lose its value because of a sudden realisation that it originated outside our own backyards.
Legal systems everywhere have much in common. The institutions may look different and the methodology and procedure may be different in detail, but the essence is the same. We have only adapted English laws to suit us. Some of the changes we have made will stay, some might change, and in time a new system may evolve. And it must be allowed to evolve.
In the meantime we cannot discard altogether what we already have. Since the aim is to do justice - not merely appear to do justice - the machinery, as we have it now, must be maintained and its parts modified only very slowly. If there are problems, we have to solve them rather than discard the machine or even change it so rapidly as to cause its destruction. Emotional and political arguments about things being "alien" or "Western" will do nothing to further the aims of doing justice. Changes should aim only at doing justice better.
The principle of the Independence of the Judiciary however should not be tampered with. It is not a matter of it being an imported concept to be dismissed as unsuitable for us. Judicial independence is not a Western invention. It is a universal concept, to be nurtured and nourished if we are to live as free men and women. The fact that some of our institutions follow British models is no excuse for discarding the philosophy they enshrine. We may modify the architecture of a library and the lending system without throwing out the books as well.
We can certainly say that recently our judges showed that they were not as independent in their actions as they might have been, but that is really to say very little. Judicial independence is not a formula to be applied like formulas in mathematics or chemistry. I think that a number of our judges did fail us badly in the calamity which has overtaken us, but I do not believe that the human spirit is so weak as to be cowed for ever by one woeful episode in our history inspired by one set of moral and authoritarian rulers who happened to be in power.
It is very true that a number of our judges showed weakness of spirit. They have to answer for their sins in their own way. It does not mean our judges as a community lost their aspiration to do justice at all times. Accidents of history have made unjust men judges in the same way thieves and poachers have sometimes attained the positions of watchmen and game wardens. It is no secret that our banking and commercial systems have been found to be riddled with thieves. It is no reason to despair.
Ultimately the Independence of the Judiciary depends upon two things: first, the faith and trust the citizen has in Judges, and secondly in the moral and intellectual calibre of the Judges themselves. As the great American Supreme Court Judge, William 0. Douglas said in a speech in 1954:
"The Judiciary has no army or police force to execute its mandate to compel obedience to its decrees. It has no control over the purse-strings of government. Those two historical sources of power rest in other hands. The strength of the Judiciary is in the command it has over the hearts and minds of men. That respect and prestige are the product of innumerable judgements and decrees, a mosaic built up from a multitude of cases decided. Respect and prestige do not grow suddenly; they are the products of time and experience. But they flourish when judges are independent and courageous."
Put another way, judicial independence calls for good men as judges but that independence is unlikely to flourish if the society itself does not show faith and trust in its judges.