Protecting The Independence Of The Judiciary by Dr. Chandra Muzaffar

It is understandable why the Chief Justice of Malaysia, Tun Arifin Zakaria, has, at this juncture, reiterated his commitment to the independence of the Judiciary. Within certain circles a negative perception of the institution has become more pronounced than before, partly because of the recent conviction of a couple of politicians.

If we traced this perception to its root, a certain episode in the eighties --- the Salleh Abas episode --- would be part of the reason why it had emerged in the first instance, compounded by the questionable decisions and actions of some senior judges in the past. But in recent years it is the intensity of inter-party political competition that has impacted adversely upon the Judiciary. Sweeping generalisations are made about the integrity of the institution and its standard-bearers based on whether a decision is in the interest of one party or the other. When a decision is favourable to one side, the Judge concerned and the Judiciary are lauded by the winner and his supporters; if the decision is unfavourable to him, he and his acolytes condemn the Judge or Judges involved and the entire Judiciary in the vilest language conceivable.

Such infantile behaviour is particularly true of a certain influential politician and his diehard followers. It is their antics in the last 16 years that have smeared and sullied the image of the Judiciary. It is an irrefutable fact that this politician has been acquitted as he has been convicted in equal measure by different judges in the course of the last decade and a half. He has won and he has lost various legal battles.
The latest conviction against him is yet another illustration of how his fanatical devotees stubbornly refuse to even consider the merits of the Court judgement against him and the legal principles underlying the case. He himself continues to whip up mass emotions against the Judges who had convicted him by conveying the erroneous impression that he is the victim of some grave injustice. By so doing, he has set aside his conscience.

This is illustrated by a report in a local daily about a rally he addressed in a town in Penang on 9 March 2014 attended by more than 3000 people. Apparently, he “got the crowd going when he took off his shoe and threatened to symbolically hurl it against the judges who convicted him.” Needless to say, such despicable conduct is an affront to the Judiciary. One wonders why he has not been hauled up for contempt, especially since it is widely known that he has on numerous occasions at home and abroad made disparaging and demeaning remarks about the Judiciary. It appears that he enjoys some sort of immunity and has the liberty to tar and tarnish the image of the nation’s most vital institution in the protection of its integrity.

This brings us to how we Malaysians can help to protect the independence and the integrity of the Judiciary.

One, the Judiciary itself should ensure, through its decisions and actions, that it is truly independent and free of any bias. Its primary commitment is to justice.

Two, if there are unscrupulous attempts to bring the Judiciary to disrepute, the Attorney-General as required of his office should act expeditiously to protect the institution. He should immediately institute contempt proceedings against the individual or entity concerned.

Three, the Government should also demonstrate that it is sincere about respecting the independence of the Judiciary. Its actions should not give raise to the slightest doubt that it is trying through subtle or stark manoeuvres to influence the Judiciary.

Four, local and foreign corporations, and individuals who command wealth, power and influence in society should not appear to be trying to shape judicial decisions through direct and indirect means.

Five, Opposition leaders and parties should not pressurise the Judiciary by mobilising the mob against the institution or threatening Judges and their families. Neither should they smear the institution or its standard-bearers through vicious demonization and vulgar attacks.

Six, Opposition leaders should not seek the help of foreign governments or other external actors to apply pressure upon the Judiciary to make decisions that are favourable to them and their ilk.

Seven, the Malaysian Bar Council has a special responsibility to defend the independence of the Judiciary. Given the prevailing situation, it should undertake to present the facts as they are to the general public in order to minimise the misconceptions about the Judiciary. The Bar Council can do this by preparing a balance sheet of the so-called ‘political cases’ adjudicated in the last 10 years which will reveal the number that were won by the Government and elements associated with it and the number won by the Opposition and groups allied to it. It should compare this balance sheet with the record of Judiciaries in Britain, Canada, India and other democracies.

Eight, civil society groups also have a role to play. They should adopt a balanced position on the question of the Judiciary without falling into the trap of either uncritical acceptance of each and every judicial decision or slavish rejection of the Judiciary’s record goaded by blind antagonism towards the Government of the day.

Nine, the media, whatever its form, should regard the defence of the Judiciary, especially if the Judiciary is endeavouring to uphold its independence, as its sacred duty. If the proposed balance sheet on the performance of the Judiciary materialises, the media should disseminate the information as widely as possible.

Ten, more than all the institutions and bodies mentioned here, it is the Malaysian citizen who should cherish the independence and integrity of the Judiciary in her heart. She should be deeply conscious of how fundamental judicial independence is to her own well-being and the well-being of her loved ones.

Malaysians should realise that judicial independence resonates with the virtuous examples of independent-minded judges of integrity found in many of our spiritual and moral philosophies. This is why an independent Judiciary is in the ultimate analysis one of those hallowed principles that unites all Malaysians.