“I’m not biased, I’m impartial”

IT’S been a long, uphill battle for the Malaysian judiciary over the past two decades. From Lord President Tun Salleh Abas‘s sacking in 1988 to the 1996 poison pen letter and the 2007 Lingam video tape exposé, the public is not unjustified in doubting judicial independence.

Familiar murmurings have begun again on whether anything has changed. Accusations of government bias and manipulation arose after the recent Federal Court decision declaring Umno’s Datuk Seri Dr Zambry Abdul Kadir as the rightful Perak menteri besar. The courts are also facing added scrutiny with the ongoing and second sodomy trial of Opposition Leader Datuk Seri Anwar Ibrahim.

Chief Justice Tun Zaki Azmi responds to these criticisms during an interview with The Nut Graph on 26 March 2010 at the Kuala Lumpur Court Complex. In this first of a two-part interview, he says there is no justification for accusing the judiciary of bias. He also discusses the effects of his prior link to the Barisan Nasional on public perception.

TNG: Former Lord President Tun Mohamed Suffian Hashim once predicted we’d have to wait a whole generation for the judiciary to recover from the assault on its independence when Tun Salleh Abas was removed in 1988. Do you agree that this incident was a serious blow to the judiciary’s independence?

I would not like to comment on the effects of what happened prior to me taking office. In 1988, I was not even a judge. I was just a practising lawyer, so it’s not proper for me to make any statements on that.

Now that more than 20 years have passed since the 1988 judicial crisis, do you think the judiciary has recovered its independence?

Yes, I would believe so. I believe the confidence in the judiciary has improved a great deal.

I would like to state, and you can confirm this with the lawyers, that at the last Malaysian Bar annual general meeting held (on 13 March 2010), not a single issue was raised regarding the judiciary. They did not comment negatively at all on the judiciary, which, to me, is a good sign.

Could one reason for that be because the Malaysian Bar just held an extraordinary general meeting (in December 2009) on issues regarding key performance indicators (KPIs) for judges?

Yes, there was an issue about the KPIs. I gave an interview. I believe the lawyers were satisfied with the explanation. I think a large majority of the practising litigation lawyers now will say they are happy with the way cases are progressing.

I think the main issue now that you are concerned about is the perception that the judges are pro-government.

Yes, some writers, academics and political commentators have speculated that the courts are still acting under the directions of the executive, especially in relation to the Perak menteri besar case, and Datuk Seri Anwar Ibrahim’s sodomy trial. What is your response to these comments?

There is a small group of vociferous people out there, who go onto the internet and blogs and Facebook and all that and make comments without knowing the proper background. Many are not even lawyers.

It seems to me that for these people, as long as you make a decision against the government and the party in power, then the court is fair and reasonable. The moment you make a decision in favour of the government or the party in power, then the court is biased. But they have forgotten how many election petitions the Barisan Nasional (BN) has lost. They have lost about three quarters of such petitions, if I’m not mistaken.

People talk about Perak. I’m not too keen to enter into the arena of trying to argue that the decision was fair. But you see and judge for yourself, and you make your own decision. If there is any influence, why are there still decisions made against the government? If it wants to influence, the government might as well influence all decisions, from top to bottom.

Also, judges and judicial commissioners who have supposedly made decisions against the government have got promoted and confirmed as judges. So, how can you say that the judiciary is biased?

Do you think the fact that you have to recuse yourself from some of the BN-related cases also influences public perception of bias? 

I’m actually not biased, I’m impartial. But to avoid any perception that I’m biased where the BN is a party, or where the government is politically involved and is a party, it’s best for me not to hear those cases. Justice must not only be done, but be seen to be done.

But would the [mere] fact that you had prior links to the BN cause the public to perceive a [government] bias? 

Since the time I took office as a Federal Court judge on 5 Sept 2007, as president of the Court of Appeal in December 2007 and as Chief Justice in October 2008, have I made any decisions in favour of the government?

If at all, some of my decisions have been against the government. We have released people on habeas corpus applications, and I have made decisions against the local government. I overruled the Datuk Bandar’s decision regarding the use of a piece of land a few months ago. We ruled it was wrong.

Perhaps due to the past setbacks, there is a long way to go before the public can come to trust the judiciary again…

I don’t want to talk about past issues, but I think we are moving in the right direction. It will take time, but those who lose their cases will still complain. I get letters once or twice a week saying judges are biased, that a judge is corrupt — all sorts of complaints when people lose their cases.

So, we investigate. So far, I have not found anything because if there is any evidence that a judge is corrupt, I will go after his [or her] neck without any hesitation. But if accusations are made without any basis, it’s not fair for me to take action against the person.

But at the end of the day, the losing party will still say that there is no justice done. The winning party will say there is justice done.

Criticism has arisen again about the Court of Appeal’s recent decision overturning Datuk Mohd Hishamudin Mohd Yunus’s judgement that the detention under the ISA (Internal Security Act) of Abdul Malek Hussein was unlawful. Do you have any comments?

They are now saying one judge is correct, three judges are wrong. It’s more difficult to influence three judges than to influence one judge. And Hishamudin was promoted to the Court of Appeal. How do you justify that?

What is your response to the perception that the High Court judges have been more independent in deciding against the government, and that their decisions are then overturned by the Court of Appeal?

The High Court judges are the most junior. If I wanted to exert influence, the judicial commissioners would be the easiest to influence. They would want to become judges and go on to the Court of Appeal and Federal Court. It would be easier for me to tell them, “Decide in this manner and I will give you a promotion.” Isn’t it?

The higher up their position, the more difficult it is to influence. To the judges at the top, they are already there. They cannot be influenced by promotions. To influence a case [on appeal from the High Court], you have to influence three judges at the Court of Appeal stage, then three at the Federal Court stage. It’s not easy to influence six people’s decisions!

What do you think it would take for the public to regain trust in the judicial process?

What else do you want me to do? I don’t go out of the way specifically to remove that perception. I will go on to do what I need to do. As far as efficiency of the judiciary is concerned, I am working very, very hard to improve the speedy disposal of cases and to reduce the backlog. That, I have done.

As far as the perception that there is bias, I just let it go. We are not biased. The judges are not biased or one-sided, so what more is there for me to do?  

Part II: Perception vs fact in the judiciary

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