Judges must be trustworthy

JUDGES in an adversarial justice system must exercise their judicial duty to, among others, be impartial and maintain the appearance of impartiality, and to render justice in accordance with the law.

These are the raison d’etre of the judiciary. In the powerful words of the late King’s Counsel Lord Denning, “... a judge is not a mere umpire to answer the question ‘How’s that?’ His object, above all, is to find out the truth, and to do justice according to law...”.

Likewise, judges play a vital function in maintaining public confidence in their independence and integrity. The rule of law, being the legacy of generations of legal disputations for liberties and accountability against a myriad arbitrariness and abuse, must be religiously safeguarded by its paramount guardian, the judiciary. Naturally, if it is undermined and threatened by either of the other two branches of government, ie the executive or legislative, public confidence will erode.

This is the continuous mandate the legal fraternity and members of the bench are obliged to undertake: To uphold the cause of justice without fear or favour. However, attempts to compromise the integrity and independence of judiciary is neverending; historically, such attempts have been in most common law countries, including Britain.

In 1607, the Chief Justice of England, Lord Coke (as he then was), faced down King James I when the king attempted to separate the jurisdiction of the common law court from the ecclesiastical court in order to empower himself to adjudge disputes himself. Coke’s powerful words would be reverberated by lawyers, judges and academicians for centuries.

In 1941, in the midst of World War II, Britain’s House of Lords presided over the landmark case Liversidge v Sir John Anderson and Another. In that case, Lord Atkin (who is also known for the landmark case Donoghue v Stevenson) boldly wrote a dissenting judgment in which he alone upheld the fundamental liberties of the individual over the arbitrary exercise of executive powers during the dark times of war.

Despite being reprimanded by Lord Chancellor Viscount Simon, who asked him to remove his dissenting opinion, he did not. Consequently, Atkin would be resented by his fellow Law Lords for years. It was only in 1979 that he was vindicated by the House of Lords for another dissenting judgment in the case of Inland Revenue Commissioners and Another v Rossminster Ltd and Other, when the majority of the Law Lords approved Atkin’s dissent as the correct law.

The resoluteness displayed by Coke and Atkin in discharging their judicial duties reinforce the notion that judges must act without fear or favour from any external control and influence – even from fellow members of the Bench.

Equally important, judges must uphold their sacred oath to exercise their duty to give correct and fair decisions according to evidence and the law, even when the outcome would make them unpopular with other members of the Bench. Fiat justitia ruat caelum (let justice be done, though the heavens fall).

It was during Malaysia’s golden age of judicial progress that we were privileged to be graced by formidable legal minds of notable judges such as the then Raja Azlan Shah (as he was called then) and Eusoffe Abdoolcader, to name a few. Their esteemed judgments rippled out not only among Malaysia’s lawyers, judges and academicians but also reached other common law countries and were cited with approval by foreign commonwealth judges.

Unfortunately, then came the judicial crisis in 1988. International legal bodies watched and heavily criticized the dismissal of the then Lord President (the position now known as Chief Justice) of the Supreme Court and the suspension of five other Supreme Court judges (two were dismissed thereafter).

The independence and integrity of our judiciary has come under great scrutiny and scepticism in many subsequent high-profile cases since then.

Have we restored judicial independence? Has the damage inflicted upon the integrity and independence of our judiciary been rectified? If we are in the midst of recovery, are we foreseeing the possibility of the next wave of judicial crises?

In my humble and very limited view, there is only one way to uphold judicial credibility. Henceforth, the judiciary must remove any influence or control of the executive from its decision to uphold the cause of justice and the rule of law without fear or favour, regardless of individual or political actors before them.

Similarly, the executive and legislative must refrain from dipping their fingers in the due process of law. After all, the inception of any judicial progress and proper functioning of administration of justice begins with the recognition of judicial independence.

The Roman poet Juvenal, in his literary work, put forward the famous question “Sed quis custodiet ipsos custodes?” (Who will guard the guards themselves?). Denning (in his book, What’s Next In The Law, 1982) answered, “Someone must be trusted. Let it be the judges”.

NUR RAFI’UDDIN MASWARI

Lawyer