If I were a judge…

by : Zaid Ibrahim

Utusan Malaysia has made a call for the unity and solidarity of all Malaysians after the Federal Court’s “decision” to agree with the Court of Appeal that the word “Allah” can be used by Muslims only. The paper said it was time we move on and focus on the nation’s development.

I think we all want unity and peace and we all want to move on with our lives, but our judges make strange rulings which cause migraine and sleepless nights. The Allah case is one such example.

From my old recollection of the law, I always thought that leave to appeal to the Federal Court is always given if the matter is of public importance, and especially if it involves differing constitutional interpretations.

Even a non-lawyer would agree that the Allah case is of immense public interest and that it involves serious constitutional questions, in particular Articles 3, 10 and 11 of the Federal Constitution.

It is therefore absolutely unnecessary at this stage for the Federal Court to deal with the “substantive arguments” or to affirm the decision of the Court of Appeal when the issue at hand is whether leave should be given. Just look at the criteria for leave under the Federal Court Guidelines 2010 and the Courts of Judicature Act 1964 and decide if the case meets these criteria.

Surely the Federal Court judges know this much about the law. And yet they felt compelled to deny leave. Why? 

The answer, my friend, is blowing in the wind. Perhaps the majority of the judges felt that peace and harmony are more important than granting leave application, i.e., that it was better that the Allah case was “closed”. In their judgment, it was better for peace and harmony in the country to be maintained by rejecting the leave application.

As good and responsible judges, they had to be “sensitive” to the needs of the country, and they viewed seriously the outcry staged by some quarters that said public order would be affected if the Allah issue was not settled in a certain way. They took cognisance of the feelings of the angry Muslims who assembled at the courthouse. So they made the decision that the Court of Appeal was correct and they hope, like Utusan, that the people will finally move on.

This is why I would not make a good judge. I would have decided differently. Many years ago, a former Chief Justice invited me to his chambers and offered me the position of a High Court judge. He told me the offer was subject to the Prime Minister’s agreement. 

I was happy but I told him I had to decline. You see, I knew I would not make a good judge. I do not have the key requirements. First and foremost, you need a rigorous intellect and a mastery of the law, one that would allow you to zero in on key issues and provide clear answers to complex legal questions. I certainly fail in this respect.

Next, a judge must not be frightened of pressure from the powers that be. I pass on this point as I am seldom scared of anything, except maybe heights. John Marshall is an example of courage in the US Supreme Court when, during the 19th century in a very white America, he was the voice of equality that championed the rights of all men. He was fortunate they did not lynch him.

If I were a judge dealing with the Allah case, I would not be bothered with threats, or if peace and harmony might be compromised, or if there might be racial trouble if I do not decide in a certain way. I would not be bothered if 10,000 people were marching in the streets — that’s for the police and the politicians to sort out. I would decide based on the facts and the law. That’s what impartial justice is all about, and that’s what is required of our judges when they take their oath of office.

It would also not be my problem if the law is unjust or if the Constitution is unclear or needs to be changed. That is for the politicians to deal with. I would not let the politicians, who are generally all cowards, to use me or my office to sort out their problems.

Neither would I interpret the words of the Constitution to achieve the so-called “national agenda” because I would not be bothered by what this agenda is. I would not let my nationalistic feelings, my race, my religious beliefs or any prospect of promotion, affect my commitment to the law in any way.

The politicians are clever people — they think that because they can reward and gratify you, they can use you when they are in difficult situations. I would not let them do this, even if this meant they ended up impeaching me.

I never regretted refusing the Chief Justice’s offer to become a judge because I know, deep inside me, I would not have gone far as a judge in this country.

- TMI