Good judgment comes from experience, and a lot of that comes from bad judgment. – Will Rogers, American actor
In most political establishments, judges are said to be “duabus sellis sedere”, Latin for sitting in two saddles. This is obvious because judges are usually political appointments. They are not selected and elected by eligible voting citizens.
Who judges them? Obviously, it’s their political masters who appoint them. They don’t toe the line, off they go. It’s a sad day for that trite remark ‘independence of the judiciary.’
Truth be told, the voting public should judge the judges. After all, the voters choose their MP, one of whom becomes the prime minister who appoints the judges. The elected defers to the will of the elector, so why can’t the elector qualify to select, elect and judge the appointed judges?
And, that’s where the problem begins, and ends. The United States Supreme Court has chalked up a ‘Thirteen Worst Cases’ record starting from the 1867 Dred Scott case which decided and decreed that a slave was chattel (property) belonging to his owner!
Justice Clarence Thomas of the US Supreme Court says that “the job of a judge is to figure out what the law says, not what he wants it to say. There’s a difference between the role of a judge and that of a policy maker . . . judging requires a certain impartiality”.
Which brings us to the Malaysian judiciary. Must every case, especially a criminal case, end up in court with the Federal Constitution’s Article 145(3) sword of Damocles hanging over the judge’s head granting the Attorney General sole authority and power to discontinue criminal proceedings?
The string of recent DNAAs unleashed by the judiciary taints and contaminates the canon of judicial ethics expressed as judex tenetur impertiri judicum – (Latin) – the judge is bound to communicate or give the benefit of his decision. The Malaysian public was denied this crucial requirement from sitting judges.
Judges are put in a bad light when they are said to perpetrate ‘boni nocet quisquis perpecerit malis’, Latin for whoever spares the bad injures the good. When politics is injected into the bloodstream of the judiciary, truth, law, order and justice take off on an ugly trajectory.
Article 125(3B) of the Federal Constitution prescribes ways and means for the removal of a judge in the event of a breach of the canon of judicial ethics. One Court of Appeal judge was permanently suspended in 2020 for exposing judicial misconduct which is, prima facie, not a violation of any code of ethics.
Another got promoted in 1994 directed from the Bar to the Court of Appeal ostensibly for resolving the Umno crisis of 1987 when Tengku Razaleigh Hamzah took on Dr. Mahathir Mohamad resulting in the deregistration of Umno. Whether the Legal and Judicial Services Commission was consulted over this leap-frog judicial gymnastics is a naïve question.
Do judges judge objectively bereft of personal sentiments, opinions and political persuasions? The Latin adage ‘quamdiu se bene gesserint’, – holding judicial office during good behaviour – must be entrenched in their employment contracts. Is it happening?
The Code of Ethics for Judges is a good check and balance mechanism, at least theoretically. The practical fact is that judges are required to be beholden to the Executive because of the power of the purse.
Solution 1: A voter-elected judiciary with its very own police force may be the only option left for a genuinely independent judiciary unshackled from politics, secret agendas, handshakes and motives.
Solution 2: A well-crafted Appropriations Act to set aside a certain quantum of funds for the judges’ remuneration obviating the need for legislative intrusion, interference and intercession into the affairs of the administration of justice.
Solution 3: A continuing legal education for the judiciary in an effort to stay abreast of the latest developments in the global common law jurisdictions where democracy is the political call-sign.
Solution 4: An attractive monthly rate of remuneration with an equally attractive pensionable scheme for judges who are bound to lose it all if they are found to have breached the Code of Judicial Ethics. Singapore leads the pack in this capacity.
Solution 5: Why put judges to pasture when they reach 65 years of age? Doesn’t their years of legal experience count? Does all this expertise vanish upon reaching 65? Political procedures and policies can be unnecessarily stifling.
Solution 6: Televise court proceedings. Trials are public. This is freedom of speech, assembly and association. Let the public judge. It’s not the media’s monopoly to report trial proceedings. Live Court TV is welcome.
We can afford to be horrified by the observation of former Chief Justice of the United States Supreme Court, Warren E. Burger, that ‘we are more casual about qualifying the people we allow to act as advocates in the courtroom than we are about licensing electricians”.
The American Bar’s titan Clarence Darrow narrowed it down: “justice has nothing to do with what goes on in a courtroom; justice is what comes out of a courtroom”.
The Bar and Bench are mere pieces of rotting furniture with third-rate judges, lawyers and prosecutors manufacturing the outcome of trials as an ongoing crusade in perverting and subverting the rule of law and the role of justice for political gain, benefit and advantage.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
