Perception vs fact in the judiciary

“FOR any decision, the losing party will say it’s unfair, the winning party will say it’s fair,” says Chief Justice Tun Zaki Azmi. He says as people tend to root for the underdog, decisions favouring the government tend to be viewed as a result of government bias.

In the second and final part of an exclusive interview on 26 March 2010, the chief justice shares his views on the Judicial Appointments Commission, the courts’ role in upholding human rights, and what he intends to achieve in his 17 more months in office.

TNG: Do you feel the setting up of the Judicial Appointments Commission (JAC) went far enough in improving the appointments process of judges?

It’s not for me to say. The decision to establish the JAC was the government’s decision. They consulted the judiciary, we gave our views and they made this decision.

So you would not like to comment on whether there should be a representative from the Bar Council, or whether the process should be more independent?

No, I don’t want to comment on that. The government passes the law, we implement it. If the government wants our opinion, we give it.

Has it been working well, and has it improved the judicial appointment process?

I think so. As I said in my address at the opening of the legal year 2010, I feel the responsibility on my shoulders as chief justice regarding the appointment of judges is lighter. They passed the JAC Bill before I became chief justice.

Formerly, appointments were between the chief justice and the prime minister. Now, I act on the JAC’s advice. So my work becomes much easier.

Even with the JAC, we’re not always sure whether our recommendations to the prime minister are right or wrong. Only time will tell whether we have selected the right people.

Are you able to comment on whether most of your recommendations have been taken up?

The JAC has rejected a few of my recommendations. I cannot go into the details. Do not assume that the JAC members are easy to deal with. They have their own views.

Even assuming the [four serving judges] are unanimous in our recommendations, convincing the other four independent members — Tan Sri LC Vohrah, Tun Abdul Hamid Mohamad, Datuk Seri Ainum Mohd Saaid and Tan Sri Steve Shim — is not easy. They ask a lot of questions. They want to know the nominees’ background, how many judgements they have written, how many unwritten, the quality of the judgement, all sorts of things. We also provide samples of judgements for them to read.

But one thing they don’t go into is whether the judge has decided for or against the government. That, they don’t ask.

How about recommendations to the prime minister?

So far, there has been no issue with the prime minister.

Do you think the courts have stepped back from their previous stance on issues of human rights, especially in relation to freedom of religion and assembly?

It would be better to ask the academicians. I shouldn’t comment on this. As a [sitting] chief justice, I cannot. If a case comes before us, the facts might be different, and we might decide differently [from what I state here]. But the public might perceive that I have [been inconsistent].

Are you able to comment on whether the courts have a role in upholding fundamental liberties?

Yes, no doubt, it’s been going on for many years. During the war, the Emergency, with ISA (Internal Security Act) detentions, people still bring habeas corpus applications to court. Why? How I view it is because they still have confidence in the court. Not many applications succeed, but I released two [detainees] a few months ago. I found that their detention was unlawful.

So the courts should be the last bastion where people come for their rights to be protected?

Yes, it must be. Last week, someone challenged the Datuk Bandar’s decision. The Datuk Bandar argued that we cannot [review] his decision. We said, no, they’re wrong. So we dismissed the Datuk Bandar’s appeal. If the Datuk Bandar is wrong, he’s wrong, there’s nothing we can do.

But the perception of bias is still there. Not only in Malaysia, but all over the world. People always want to fight for the underdog. If the underdog wins, people say the court is fair. If the court decides against the underdog, it’s wrong. But the law is the law, whether there is a beggar or multi-millionaire before us, the law is applied equally. The only difference is perhaps a multi-millionaire might be given a higher fine, so they feel the pinch. That’s about it; otherwise it’s the same.

You have about one and a half years left before you retire. What would you like to see done during this time?

One is to clear the backlog. It’s improving, but it’s still there. It’ll take another one or two years to clear. Even then, the lawyers complain. They say, “Justice hurried is justice buried.” But now, as I said, they’re quite happy with it. Clients are happy because their cases are proceeding.

Marshall (Wiki commons) The second thing is, the little perception of bias that is still left. It would be good to get rid of that perception. (Singapore’s former chief minister) David Marshall once said in the 1970s, “I do not know of a single judge or magistrate in Malaysia and Singapore who is corrupt.” When you read that, you feel very proud. If we can go back to that status, and I feel confident we can, that would be good. Not free from financial corruption, but also free from political influence.

I must stress, if at all, it is only perception. I would deny there is any bias in favour of the government or in favour of the party in power. The losing party will continue to accuse. But I ask the lawyers, read the cases, analyse them. Ask the academicians who can give their honest view, without any interest one way or the other.

If you don’t know the law, if you are not a lawyer, you can say a lot. I bet 90% of the people who comment on blogs are not lawyers.

Is it only lawyers who can comment on the judiciary?

The lawyers are the ones who can analyse whether the judges’ reasoning is reasonable or not.

It’s very difficult for anyone to say whether a decision is right or wrong. Because for any decision, the losing party will say it’s unfair, the winning party will say it’s fair.

But shouldn’t people have a right to comment?

Of course you can comment. But if someone who doesn’t know the law makes a comment, [what if] another person comes along and reads it and assumes it’s the truth?

I’ve stopped reading blogs because I think it’s full of rubbish. But there was one blog I read, [there were one or two statements made], but the third statement was a total error. Completely false. After that, the fourth comment onwards started commenting on that untrue statement.

By the time you get to the tenth statement, it says, “Zaki is a very bad guy.” I can’t remember what the exact issue was. My point is, people pick up things and they write whatever they like, without any basis, whether maliciously or innocently because of ignorance. The next person goes, “Oh ya…” and then it continues from there.

New South Wales
Spigelman (Public domain) Chief Justice (James) Spigelman said in 2006: “Most of us can only truly serve the public interest by maintaining a level of toughness in the face of those rages and enthusiasm. That is not to suggest that what we do is above criticism and cannot profit from public debate. It is just that so much of what passes for debate is ill informed, formulaic and unhelpful.” I think this statement truly reflects my views on bloggers who comment on cases without knowing the background.

But is there room for reasoned comment?

Of course. Read the academicians’ articles. They criticise judgements all the time. There were certain issues. We all thought the law is already quite established. Then a lawyer comes along and says that law is wrong, we should consider it in different ways. And we are ready to listen to the reasons; maybe he [or she] is right.

See also: “I’m not biased, I’m impartial”

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