Sultan Azlan Shah speaks out
KUALA LUMPUR (Oct 29, 2007): A quick-take on what Perak's Sultan
Azlan Shah, a former Lord President, has to say about the Judiciary
today:
Recently, there have been even more disturbing events relating to the
judiciary reported in the press.
I found it necessary to speak at some leangth on matters ( regarding
judiciary) because it is my earnest hope that the Malaysian judiciary
will regain the public's confidence and it will once again be held in
the high esteem as it once was held.
A judiciary loses its value and service to the community if there is
no public confidence in its decision-making.
It is of the essence of a judge's character that he must be a person
of unquestionable integrity who brings an unbiased mind to his task.
Like Caesar's wife. He should be above suspicion.
There is no reason why judges with the assured security of tenure
they enjoy under the Constitution should not discharge their duties
impartially, confidently and competently
Judges must piously resist the lure of socialising with business
personages and other well-connected people.They may discover at their
peril that they have compromised themselves in the cases that come
before them with the unedifying of recusal application.
Judging in a diverse society is not an easy task. Judges in many
parts of the world face similar difficulties … Judges in Malaysia
must be ever mindful that they are appointed judges for all Malaysians.
The inevitable consequence of incompetence is delayed judgments and
backlog in cases would lead to all round of dissatisfaction … Surely,
such a situation cannot be tolerated in any progressive nation.
About lawyers today:
The Bar and its leadership must ensure there is a high standard of
integrity and ethics among its members. A Bar that is riddled with
bad practices cannot assist the administration of justice.
Judges are supposed to be no respecters of persons who appear before
them. This rule applies not only to litigants but also to lawyers.
It's not just a matter of prudence and good practice, but
fundamentally one of ethics.
There have been allegations against some lawyers that in clear
dereliction of their responsibilities, they have either misled the
courts, or attempted to choose the judges or courts for their cases
to be heard so as to obtain a favourable decision in their client's
favour. This is a serious interference with the administration of
justice and the process of the court.
Here is the full text of Sultan Azlan Shah's opening address at the
14th Malaysian Law Conference taken from the Bar Council website
(www.malsyhaianbar.org.my):
Monday, 29 October 2007, 04:25pm
"50 Years of Constitutionalism and the Rule of Law"
Assalamaualaikum Warahmatullahi Wabarakatuh.
Salam Sejahtera.
Bismillahi Rahmanir Rahim.
This year marks the 50th year of our nation's Independence. It is
also the 50th year of our Merdeka Constitution.
Malaysia and its people have every reason to celebrate this joyous
occasion as the country prospers as a constitutional democracy with a
constitutional monarchy in the form as established by the Merdeka
Constitution in 1957.
Not all countries that achieved their freedom at the end of the
colonial period are today able to celebrate their independence with
pride. Some are under military rule, whilst others have had their
institutions undermined or even abolished.
The 50th anniversary of our independence is therefore an appropriate
moment for all of us to reflect upon the strength of our
constitutional system. As we rejoice in our success, It is important
to be alert to the pitfalls of failure if proper regard is not given
to our constitutional mechanisms.
We must ever be mindful that written constitutions are mere parchment
pieces.
It is important that there must be, in the hearts and minds of those
who are entrusted to administer and uphold the constitution, a belief
in the values and principles that animate the august document.
I had occasion to observe when sitting in the Federal Court in 1977
that the "constitution is not a mere collection of pious platitudes".
I spoke then of the 3 essential features of our constitution. I said:
"It is the supreme law of the land embodying three basic concepts:
One of them is that the individual has certain fundamental rights
upon which not even the power of the state may encroach.
The second is the distribution of sovereign power between the states
and the federation,…
The third is that no single man or body shall exercise complete
sovereign power, but that it shall be distributed among the
executive, legislative and judicial branches of government,
compendiously expressed in modern terms that we are a government of
laws, not of men."
The prescription that "we are a government of laws, not of men"
describes the basic principle that runs through our entire
constitution-the principle of the Rule of Law.
The Rule of Law is the defining feature of democratic government. In
delivering the eleventh Tunku Abdul Rahman lecture in November 1984,
I again defined it as follows:
"The Rule of Law means literally what it says: The Rule of the law.
Taken in its broadest sense this means that people should obey the
law and be ruled by it.
But in political and legal theory it has come to be read in a narrow
sense, that the government shall be ruled by law and be subject to it.
The ideal of the Rule of Law in this sense is often expressed by the
phrase "government by law and not by man""
In a speech delivered in Kuala Lumpur in April 2004, Lord Woolf spoke
of the 'Rule of Law',
"The Rule of Law is the rule by the laws that govern a true democracy.
They are the laws that provide for a proper balance between the
protection of human rights and the interests of the State. Laws which
an independent and responsible judiciary can enforce to protect all
members of society from abuse of power."
The reference by Lord Woolf to the role of the judiciary is highly
significant. I wish to state with all fortitude that without a
reputable judiciary-a judiciary endowed and equipped with all the
attributes of real independence-there cannot be the Rule of Law.
All countries, including those that are totalitarian regimes, have
courts. But as I observed previously:
"The [mere] existence of courts and judges in every ordered society
proves nothing; it is their quality, their independence, and their
powers that matter."
In matters concerning the judiciary, it is the public perception of
the judiciary that ultimately matters. A judiciary loses its value
and service to the community if there is no public confidence in its
decision-making.
In this regard the principal quality a judiciary must possess is
"impartiality". Lord Devlin said of "judicial impartiality" that it
exists in two senses-the reality of impartiality and the appearance
of impartiality. He emphasized that the appearance of impartiality
was the more important of the two.
Impartiality also means that judges are not only free from influence
of external forces, but also of one another. No judge however senior
can dictate to his brethren as to how a decision should be arrived at.
It is of the essence of a judge's character that he must be a person
of unquestionable integrity who brings an unbiased mind to his task.
Like Caesar's wife, he should be above suspicion.
It is said that public confidence in the judiciary is based on four
evaluating criteria. They are:
(1) the principle of independence of the judiciary;
(2) the principle of impartiality of adjudication;
(3) the principle of fairness of trial; and
(4) the principle of the integrity of the adjudicator.
How does our judiciary measure today against these criteria?
Sadly I must acknowledge there has been some disquiet about our
judiciary over the past few years and in the more recent past. In
2004, I had stated that it grieved me, having been a member of the
judiciary, whenever I heard allegations against the judiciary and the
erosion of public confidence in the judiciary.
Recently there have been even more disturbing events relating to the
judiciary reported in the press. We have also witnessed the
unprecedented act of a former Court of Appeal judge writing in his
post-retirement book of erroneous and questionable judgements
delivered by our higher courts in a chapter under the heading "When
Justice is Not Administered According to Law". There are other
serious criticisms.
I am driven nostalgically to look back to a time when our Judiciary
was the pride of the region, and our neighbours spoke admiringly of
our legal system. We were then second to none and the judgements of
our courts were quoted confidently in other common law jurisdictions.
As Tun Suffian, a former Lord President of the then Federal Court,
said of the local judges who took over from the expatriate judges
after Merdeka that the transformation was without "any reduction in
standards".
Admittedly society is more complex today and the task of judges may
be more difficult then what it was before, but the values I speak of
are universal and eternal.
There is no reason why judges with the assured security of tenure
they enjoy under the Constitution should not discharge their duties
impartially, confidently and competently.
Judges are called upon to be both independent and competent. In these
days, judges must ever be mindful that the loss of independence can
come from many sources, and not just from the executive. Therefore,
judges must piously resist the lure of socializing with business
personages and other well connected people. They may discover at
their peril that they have compromised themselves in the cases that
come before them with the unedifying spectacle of recusal applications.
Nothing destroys more the confidence the general public, or the
business community has in the judiciary than the belief that the
judge was biased when he decided a case, or that the judge would not
be independent where powerful individuals or corporations are the
litigants before him.
Confidence in the judiciary may also be eroded where the business
community perceives incompetence in decision-making. A judgement in a
banking or commercial transaction that is contrary to the established
norms or which is incomprehensible in its reasoning is bound to give
rise to suspicion and loss of confidence.
It therefore becomes apparent, that our attempts to establish
ourselves as a leading financial and commercial center will fail, if
we do not have a competent judiciary to decide on complex commercial
disputes. In this regard, it is utmost importance that the foreign
investor have faith in the competence and integrity of our judiciary.
The international foreign investor also expects a speedy resolution
of their cases before the courts. Delays cause a loss of profits to
the business community. In the recent World Bank survey on resolution
of commercial disputes, Malaysia ranks poorly, 63 amongst 178
economies. A similar report by the US State Department warns American
businessmen to be wary of the slow process of adjudication of cases
before the Malaysian courts. This is indeed a poor reflection on our
courts.
Countries such as Singapore and Hong Kong, who have a similar legal
system and who share similar laws, and whose judges and lawyers are
trained as ours, are ranked in these surveys as amongst the best in
the world (Hong Kong is placed first and Singapore ranks as fourth in
the world).
The reason is obvious: these countries have undertaken major reforms
in their court structure and procedures and have introduced more
efficient and transparent commercial courts so as to attract the
foreign investor.
Maybe it is also time for us to consider such changes in our legal
system and introduce a strong central commercial court in Putrajaya
as in London, with especially trained judges who are familiar with
the new and ever changing commercial laws and their developments, so
that we too can become the center for the resolution of commercial
disputes in the region.
I should point out that mere cosmetic changes alone would not
suffice. If we wish to achieve this goal, it is imperative that major
reforms are introduced. Many other countries have taken such steps to
establish specialized commercial courts. Recently, the Dubai
Commercial Court (where one of our own former Chief Judge has
recently been appointed to sit as a judge in this new court), and the
Qatar Commercial Court have been established.
I know that judging is an arduous task calling for a good mind and a
capacity for hard work. The inevitable consequence of incompetence is
delayed judgments and backlog in cases leading to all round
dissatisfaction.
Only last week, I read in a latest Malaysian law report that a case
of medical negligence involving a death of a lawyer took 23 years to
reach the Court of Appeal. Similarly there have been reports that
some judges have taken years to write their grounds of judgements
involving accused persons who have been convicted and languishing in
death row.
Surely, such a situation cannot be tolerated in any progressive nation.
It will also be appropriate for me to say a few words on lawyers.
The administration of justice is not just the role of the judiciary.
I had said previously in July 1984 on the occasion of a farewell
dinner speech to the Bar Council on leaving office as the Lord
President, that there cannot be an independent Judiciary without an
independent Bar. I stated further that the judiciary cannot function
without legal profession.
This symbiosis calls for a proper understanding of the relationship
between the Bench and the Bar. The Bar and its leadership must ensure
there is a high standard of integrity and ethics among its members. A
Bar that is riddled with bad practices cannot assist the
administration of justice.
In this respect the relationship between judges and lawyers must be a
roper and correct one. As I have said earlier, judges are supposed to
be no respecters of persons who appear before them. This rule applies
not only to litigants but also to lawyers. It is not just a matter of
prudence and good practice, but fundamentally one of ethics.
As is often said, there are good lawyers and bad lawyers. Whilst the
majority of the lawyers discharge their duties as officers of the
court with professionalism and dedication, there have been cases of
some others who have brought disrepute to the legal profession. There
have been allegations against some lawyers that in clear dereliction
of their responsibilities, they have either misled the courts, or
attempted to choose the judges or courts for their cases to be heard
so as to obtain a favourable decision in their client's favour. This
is serious interference with the administration of justice and the
process of the court.
There is one further important point that I feel compelled to say.
This deals with a judge's quality in decision-making. We in Malaysia
live in a multi-cultural and multi-religious society. Our founding
fathers accommodated this diversity into our Constitution that is
reflected in the social contract, and saw this diversity as strength.
Judging in a diverse society is not an easy task. Judges in many
parts of the world face similar difficulties. Those of you who were
present at the lecture delivered by Justice Albie Sachs at the Second
Tun Hussein Onn Lecture last week will know how the Constitutional
Court of South Africa, as the guardian of the constitution, wrestle
to arrive at a just decision when dealing with the issues relating to
diversity or discrimination.
Judges in Malaysia must be ever mindful that they are appointed
judges for all Malaysians. They must be sensitive to the feelings of
all parties, irrespective of race, religion or creed, and be careful
not to bring a predisposed mind to an issue before them that is
capable of being misconstrued by the watching public or segments of
them.
I am reminded of the proud accolade of the late Tun Suffian in his
Braddel Memorial Lecture in 1982, when speaking of the Malaysian
judiciary to a Singapore audience he said:
" In a multi-racial and multi religious society like yours and mine,
while we judges cannot help being Malay or Chinese or Indian; or
being Muslim or Buddhist or Hindu or whatever, we strive not to be
too identified with any particular race or religion – so that nobody
reading our judgement with our name deleted could with confidence
identity our race or religion, and so that the various communities,
especially minority communities, are assured that we will not allow
their rights to be trampled underfoot."
I have found it necessary to speak at some length on these matters
because it is my earnest hope that the Malaysian judiciary will
regain the public's confidence and it will once again be held in high
esteem as it once was held.
In conclusion, I wish to say as I have said on previous occasion 'in
the judiciary, people place their trust and hope'.
It now gives me great pleasure in officially declaring open the 14th
Malaysian Law Conference.
I wish all of you a fruitful and meaning full discussion and exchange
of ideas.
----------------------------------------------------------------
This e-mail has been sent via JARING webmail at http://www.jaring.my
