Can we have a lawyer as the next Chief Justice please?

By Zaid Ibrahim

The present Chief Justice will retire soon, and his successor they say will be Tan Sri Ariffin Zakaria. It has been a while since this country had a Chief Justice who was a good lawyer. A good Chief Justice understands the law; is true to his conscience and is not ashamed to ask questions if he does not know the answers. He must believe in the rule of law and view justice as something tangible and worthy of pursuit. He is not afraid to decide cases in accordance with the law, regardless of the consequences to himself. We have had too many CJs who were administrators and judicial spokespersons for political masters. Small men holding high positions bring shame to the judiciary and to the country.

I pray that Ariffin will be a suitable CJ. The Ariffin that I know would bring comfort. He is a good lawyer and has a sufficient dose of humility in him to be interested inthe business of dispensing justice, especially to the minority and the oppressed. Any idiot can decide in favour of the rich and the powerful – it takes a special Chief Justice who can adequately distance himself from the levers of power, and have the courage to defend the rights of ordinary Malaysians. I hope Ariffin will bring integrity, decency and independence to the Bench once again. High positions can change many of us, but I hope it will not be like that with Ariffin.

As for the present CJ, Tun Zaki Azmi, I wish him a happy retirement. His pronouncements in some cases have bordered on the absurd. His pronouncement that a receiver and manager can have two principals – that is the company (borrower) and the bank (debenture holder) – is mind-boggling. He is more suited to be UMNO’s lawyer or Chairman of UMNO’s conglomerates than a Chief Justice. When he resigned as Deputy Chairman of UMNO’s Disciplinary Board following the burning of his own marriage certificate, he said he did not want to tarnish the good name of the Board. Clearly, he cared more for UMNO than the judiciary, since he then accepted the post of a Federal Court judge when Pak Lah offered it to him.

During the Federal Court hearing of S. Shamala’s conversion case, when the Court of Appeal referred several important constitutional points of law for determination, he denied them the answers. Instead, he told the lawyer that the questions posed to the Court were political. The Court of Appeal had sought answers to questions of law concerning the position of several Syariah Court Enactments. It also questioned whether the unilateral conversion of a minor to Islam by Shamala’s husband was constitutional – these questions are clearly legal in nature, and are also constitutional issues of great importance. The ramifications may be political, but it is not the Chief Justice’s job to manage political fallout.

Recently, Zaki made another landmark statement. Instead of deciding if a petitioner in a case had a right under Sarawak’s native customary law, he went on a rampage and pronounced that the minority must follow the dictates of the majority. Do members of the minority have no rights? We expect this from Perkasa, not fromour Chief Justice. The Constitution protects every citizen and it is for the courts to dispense justice if indeed he can establish his rights under the law.

Given all this, it’s about time we had a Chief Justice who is a lawyer first. Of all the cases that have been decided at the highest level in the last 20 years, so many have been hard to reconcile or understand because they were written by judges who did not understand the law. A Chief Justice like Ariffin, and the brother judges who follow him, can hopefully change this.