Legal History

The electoral tsunami is over on 10 May 2018. It is now time to rebuild institutions of state, the foremost of which is the judiciary.

Judicial Functions, Work, and Selection must abide by the ‘Rule of Law’.

What is that?

Where did the concept of ‘Rule of Law’ come from?

Processes that began centuries ago built the incipient concepts of the Rule of Law.

The English Magna Carta (‘The Great Charter’), signed in 1215, was a turning point for the development of the Rule of Law. Two principles are crucial to an understanding of this concept: –

(1)    ‘No free man shall be arrested, or imprisoned, or disseised (property taken), or outlawed, or exiled, or in any way destroyed, nor will we go against him, nor will we send against him, save by the lawful judgement of his peers or by the law of the land.’ Chapter 39, Magna Carta

(2)     ‘To no one will we sell, to no one delay right or justice’.

At Runnymede, King John, the reigning monarch, was a reluctant signatory. He found it rather inconvenient to his arbitrary rule. However, subsequent monarchs were called upon to solemnly confirm it on no less than 37 different occasions (Hostettler, ‘Champions of the Rule of Law’).

That was 803 years ago.

Democracies the world over have cherished it ever since. It was the greatest gift to humanity. An English judge, Lord Coke (pronounced ‘Cook’), wrote a treatise on it in 1779. Young colonists and future presidents of the US, such as Thomas Jefferson and John Adams, absorbed Coke’s Interpretation of the Magna Carta and the English common law (Coke’s, ‘Second Institute’). The phrase ‘due process of law’ appeared in 1354 in a statutory version in the reign of Edward III (28 Edw. 3, c.3). It declared;

‘That no man of what estate or condition that he be, shall be put out of land or Tenement, nor taken, nor imprisoned, nor deinherited, nor put to Death, without being bought to Answer by Due Process of the Law.’ (The statute of Westminster of the Liberties of London).

Now, that was 665 years ago.

These documents would, afterward, form the constitutional backbone for all nations of the Commonwealth. And so Malaysian law followed the legal system of the United Kingdom.

The question is whether the Judiciary has been equal to these principles of the Rule of Law.

Often, many a lawyer, and many an opposition politician, have had cause to wonder if judges had regressed to the ways before the Magna Carta.

Recent re-engineering of judicial efficiency

Some years ago, Tan Sri James Foong embarked on a re-engineering of judicial efficiency. Tun Zaki, the then CJ, supported him.

After all that, is our judiciary the more efficient?

It certainly is. It has become a machine well-oiled.

It hums with quiet efficiency.

So, did the judicial re-engineering work?

Did the judiciary become more effective? That is not a difficult question to answer. That question invokes further questions: –

Can our judges compare to those in the leading nations of the Commonwealth?

What are their powers of research?

How are their powers of reasoning?

If the answers to these questions are negative, then something has to be done.

You can overhaul the car, but what if the driver has no regard for traffic rules?

How should the judiciary be reformed?

Our collective experience has been that our judiciary’s judgments, instead of being quoted with approval by other jurisdictions, are embarrassingly cast down upon. We have no international presence.

What brought us to this pass?

It is the falling of standards.

Is it not odd that the quality of our judges has never been tested against an objective standard?

In the US, before judges are selected, they have to attend ‘Confirmation Hearings’.  In the UK, there are public procedures put into place–judges are required to sit for qualifying exams.

In both these procedures, the ability, experience, and integrity of the judge are up for public examination.

Not so in Malaysia.

Why do we not have this system? We do not want a group of women and men sitting in secret, deciding who should be appointed to the different courts. These ‘selectors’ are not accountable to anyone. That is not how a democratic institution should be peopled.

Causes & Remedies

When Tun Mahathir became the 4th prime minister on 16 July 1981, he famously said,

‘I will drive the fear of God into the corrupt’.

It has been more than 3 decades since. How will the current regime treat its own ministers and civil servants?

What message will this send to the judiciary?

The causes of the downfall of our judiciary – any judiciary – is not difficult to fathom.

An imperious, overbearing, intolerant, and a high-handed Executive

Such a fall is attributable, firstly, to (what has been) an imperious, overbearing, intolerant, and a high-handed Executive (read, Government, uppercase ‘G’).

It was one whose ministers brooked no contrary thought. Those in power had no respect for the law.  And they did not care to practice the rule of law. Examples of these abound. In the previous regime, ministers, civil servants, and their hangers-on were uncrowned kings. They were a law unto themselves, unassailable, and sauntered the corridors of power without concern and impunity. The alarming growth of their arbitrary power, drove any thought of rule of law, or free speech, underground.

Judges suffered under their political masters

The tendency of judges to favour the Government has been growing unchecked. They have suffered, until a couple of days ago, under the yoke of their political masters. And so it has inflicted us with judges whose attitude is, ‘don’t rock the boat’. This class of ‘don’t rock the boat’, persons are those who are best seen in sensitive Government cases or in election petitions. They allow themselves to fall prey to the least credible objection, to ensure that the previous regime’s MPs keep their seats.

Since Pakatan Harapan has been the victim of injustice, it should well know this. Yet, does the Pakatan Harapan Government expect our judges to exhibit a swing over to satisfy them?

One hopes not. Pakatan Harapan, on whom rides the hopes of a citizenry, long denied their civil rights, surely, must do better than that.

Establish written standard of integrity

So, the Pakatan Harapan Government needs to establish written standard of integrity.  It must be enthusiastic and honourable in prosecuting any public officer, minister, and civil servant–immediately and without delay. This will show the nation, especially the judiciary, the weight of Coke’s words, uttered those many centuries ago:-

‘Be ye ever so high, the law is above you.’

The next and related cause is corruption.

The Subtlety and Pervasiveness of Corruption – 

‘Corruption’ does not mean the mere receipt of some financial or other advantages.

It is not the promise of future promotion or the bestowal of a royal title.

Not even intellectual dishonesty.

It is more subtle.

Insidiously and insensibly gaining ground over the decades, it is more difficult to detect–or deter: and therefore the eviler.

It is the willful closing of one’s eyes to the spirit of the law

That is the highest form of corruption.

When a judge disembowels the spirit of the law, and claims to uphold the mere letter of the law, he or she is corrupt.

It is not the rule ‘of’ law. It became, under the previous regime, rule ‘by’ law.

Big difference!

Persons who fall into this group must be removed and dealt with, because,

‘… if citizens cannot trust that laws will be enforced in an even-handed and honest fashion, they cannot be said to live under the rule of law. Instead, they live under the rule of men corrupted by the law,’ (Dale Carpenter, Flagrant Conduct).  

And so the innocent are convicted, and the guilty are released.  Look around you, there are many examples; large and small.

Personal Ambition of Judges

The third is the personal ambition of some judges:

‘… If you support us, you will be promoted.  If you stand in the way, off to the deep freezer you go!’

That was the message sent out by the earlier regime.

And so there grew a culture of fawning and toadying. When the malaise grew into a culture of servility, the rot began.

Nepotism

A judge who cannot rise by merit but has ascended by his relatives or friends should be run out of the system.

The Slothful, The Heedless and the ‘I am entitled’

There are many types of judges.

There are judges who are clever, but lazy.

There are those who are lazy and refuse to do the right thing.

There are judges who are not so clever, who feel the judiciary is their last refuge, before being pastured out for retirement.

And then there are those who feel they are ‘entitled’ to become, sit, and be promoted to the highest positions in the judiciary.

These people should go.

Choosing judges from a limited pool

We move on to more practical matters.

We now choose judges from a limited pool. That is the greatest weakness in the judicial selection process.

Most of the current judiciary is of a particular makeup.

This system has a history to it.

The majority of the judges in the judiciary come from the Attorney General Chambers.

There are some great lawyers there, but not quite enough to satisfy the wide and deep skills the courts require.

This practice needs to be reconsidered.

Highly qualified members of the Bar – those who have exhibited a high level of skill, a love of the law (one cannot protect, implement or enhance what one does not adore), immaculate character, and unblemished record–should be invited to join the bench: especially at the level of the Federal Court.

Senior members of the Bar would bring to the judiciary a lifetime’s experience of independent thinking, fearlessness when confronted by authority, and a deep knowledge of the law.

Yet, such invitations have been few and far between, and when granted, only to aging talent, and that too to the lowest rung, at the High Court Level.

The way members of the judiciary are currently chosen is to ignore completely the judicial talent at the Bar.

But lawyers are usually reluctant to take up the offer. There are two reasons for this: –

The first is the fear that one will become ‘trapped’ in the system;

The second is that judges are paid a parsimonious sum. A lawyer earning RM50,000.00 a month will not give up practice to earn RM26,000.00 (a judge’s remuneration), no matter how much prestige a judgeship brings.

Being miserly with judges

So for many decades, our judges have not been treated charitably. No one wants to be a poor judge (pun intended).  Judges should be paid well.  Look at Singapore: about S$1.0 million per year, in all (the annual pensionable salary of RM2.99 million).  We do not attract the best and brightest to the judiciary. They stay away or do ‘national service’ in the evening of their lives.

Judges overwhelmed – and marooned without help

The judiciary is a system that is overwhelmed. That has not helped. Judges are not given the support they need.  Not any help – but the help of highly qualified researchers, editors, and writers.

Most of our judges are good people.

They are uncommonly industrious.

Think not any less of them. Give them the tools. Then, ask them to deliver: not before.

Judges don’t usually read.  Why? Who can blame them?

For those who do not understand, I will explain:

Every court has, say, about 10 hearings a day (in some cases, some have as many as 20). In this example, I have not included the hearing of Trials.

In each case, lawyers from both sides are required to file written arguments.

On a daily basis, the judge has to read as many as 10 Main Submissions and 10 Replies. Each would be about 20 pages long.

Add them all together and you find that every single day, a judge has to read not only the cause papers but also 200 pages of arguments.

Then he or she has to analyse case law. These run into hundreds of pages. That is at least about 600 pages.

Additionally, at the end of an exhausting day, he or she has to write a judgment: these can range between 10 to 30 pages.

It cannot be done.

No one can do it.

I defy any member of the Bar to try it.

So judges do not read. They find it too tiring.

Who can blame them?

What if a highly qualified research assistant could help the judge do that? 

Some countries employ a Judicial Research Assistant:such a researcher helps the judge with difficult points of law, carries out research and writes the first draft of any judgement. They are highly qualified and, unlike our registrars and deputy registrars —  who are tasked and burdened with many duties — do only research.

Lack of Technical knowledge 

A major complaint about the Bar has always been that our judges lack deep knowledge of commercial law. Commerce is the lifeline of every nation. Those who administer the law should know it well.

Why can’t a judge work till he is  75?

Then there is the age factor: the retirement age of judges should be extended.

It is now 66.

Mahathir is 92.  His legal advisor is at least 75.  Are they not brilliant?

So why can’t judges not be allowed to give fruitful service to the nation until the age of 75?

We could allow judges the option of retiring at 66 or extending their term by increments of 3 years until they are 75.

This might create a glut of pro-government judges.

To avoid this, all-round consultation and the consensus of the Bar, AG’s chambers and Parliament may be sought. Other countries allow it. Why not ours?

No formal or continuing training

Next, is a lack of any kind of formal training. Baroness Brenda Hale, a UK Supreme Court judge, recounts in a 2010 paper delivered on the First Anniversary of the UK Supreme Court, that a system is in place on how judges of the apex court explain, declare and develop the law. Our judges do not–alas–write, or reason, like judges in the more developed nations. They write in a formulaic way, which in itself is not a cause for complaint. The product of most (not all!) judicial exertions is nothing more than reams of judgment, without any hint of intellectual originality or creativity. They repeat what other judges have said, without proper scrutiny. They parrot and pile up quotations from previous judgments. There are judges who write 20 pages of ‘who argued what’ and then confine their decision to two pages of ‘I agree with the appellant because …,’ and write three lines in conclusion.  This certainly will not do. They need to go through a regular training regime.  A Judicial Institution exists but has not addressed the issues in this way.

And so, how does one choose a judge? Is it a secret process only confined to a few in power? What factors should be considered?  For that, we turn to ‘Assaying judges’.

Assaying judges – what qualities should judges have?

How should the nation ‘assay’ the qualities of a judge? To ‘assay’ means to ‘evaluate, assess, analyse, test, appraise, etc.’

Those who are made judges should possess a deep, working knowledge across a broad spectrum of different areas of law, and possess qualities of:-

Unquestioned loyalty to the Constitution, selfless devotion to the law, a well-trained mind, of recognised ability and mature experience …

and they should be:-

…faithful, sincere, experienced, capable and competent,

as one great man said.

He continues: –

‘Due regard must be paid to their actual capacity and present attainments, and only those who are best qualified for judgeship, be they men or women, and irrespective of social standing, should be elected to the extremely responsible position of a member of the judiciary.’

If the selection is based only on these impartial factors (as it should be), why would any reasonable person ignore a vibrant, competent Bar, as the previous regime has done?

All these troubling issues must be extracted from the judiciary. Spring cleaning is overdue.

Make no mistake – most of our judges are industrious

The judiciary has many good, hardworking, professional judges. They are largely ignored, and languish in the lower levels, until their bitter retirement. And embittered they remain.

We must not lose such committed talent. That has been the mistake of the previous regime–remove anyone who disagrees.

Only judges who exhibit a strong command of the language, the ability to grasp, wrestle, reason, and tame the difficult concepts of the law — and write with lucidity and simplicity–they are the ones who should be allowed to sit as judges in the High Courts, Court of Appeal and Federal Court. We should invite to the bench, or promote only those who exhibit these qualities.  Those who have shown an ability to argue their grounds of judgment, quite independently of counsel’s argument, instead of merely copying it. Those who apply legal principles carefully and correctly. Those who develop the law; those who throw light on grey areas, expatiate upon and smoothen untrodden ground.

Executive non-interference

Importantly, there should be complete Executive non-interference. Bertrand Russell, the English mathematician and philosopher said,

“… the Government  can easily exist without laws, but law cannot exist without Government.”

Thus the current Government should allow our judiciary the time and space to assume the lofty heights it held in times of old. Do not complain that our judges are one-sided. Give them space. Give them freedom. Tell them, ‘If you do your job impartially, you will be promoted—and quickly’. Then cut them loose. And see what wonders they can do.

Let them, once more, gain the hallowed grounds they used to tread only decades ago.

This will allow our judges to emerge from the shadows of fear. This newfound freedom will allow them to uphold the Rule of Law, to preserve the sanctity of the Federal Constitution. It should enable them to recall their oath of office.

Will the judiciary, phoenix-like, rise to the challenge?

Does it want to?