Our right to have impartial judges – OMG!

Tun Dr Mahathir Mohamad, in his column Che Det, related that he looked up the Holy Quran and the Hadiths to see whether there was any authority there for the actions of young Malaysians who go to Syria to fight for the Islamic state of Iraq and Levant (Isil).

He said he was unable to find any opinion that killing yourself or killing other Muslims will get you to Heaven.

We can learn from Dr Mahathir's methodical way of tackling an issue. Go to the best source available (in his case it was the Holy Quran) and research the topic.

Recently, former Chief Justice of Malaysia Tun Abdul Hamid Mohamad commented that he had made up his mind not to join the NUCC even before its composition was unveiled because "I was afraid I would become a 'traitor' to the Malays and Islam," he was quoted as saying by Bernama.

The direct implication is that he has a partiality for the Malays and Islam.

When an important personage like a former Chief Justice of Malaysia says he is worried about being a "traitor", it carries great symbolism.

A Chief Justice is not an ordinary citizen. He is the President of the Federal Court, the highest Court in the land. He is the head of the entire Judiciary, one of the three branches of government, the others being the Executive Branch (the Prime Minister and all the Cabinet Ministers, Deputy Ministers and Parliamentary and Political Secretaries) and the Legislative Branch (all the Members of Parliament).

So like Dr Mahathir, I checked our Constitution to see what it says about the duties and responsibilities of the Chief Justice of Malaysia.

Part IX of the Constitution titled "The Judiciary" sets out the courts that are constituted in Malaysia of which the Federal Court is the highest.

Article 122B, Clause (1) states that all the Judges, including the Chief Justice, shall be appointed by the Yang Di-Pertuan Agong (King), acting on the advice of the Prime Minister, after consulting the Conference of Rulers.

Clause (2) states that "before tendering his advice as to the appointment under Clause (1) of a Judge other than the Chief Justice of the Federal Court, the Prime Minister shall consult the Chief Justice.

This shows how important the appointment of Judges is. Not only is the King involved but the Conference of Rulers must also be consulted.

Not only that, the Chief Justice has a say in the appointment of every Judge in Malaysia, from the date of his own appointment.

This is a testament to the recognition that all Judges must exercise, at all times, the highest ethical principles.

What might these principles be? I looked up what Canada does, another Commonwealth country like ours. I believe ours would be fairly consistent with Canada's.

The Canadian Judicial Council (CJC) says the adoption of a widely accepted ethical frame of reference "helps the Council fulfill its responsibilities and ensures that judges and the public alike are aware of the principles by which judges should be guided in their personal and professional lives. The ability of Canada's legal system to function effectively and to deliver the kind of justice that Canadians need and deserve depends in large part on the ethical standards of our judges."

The CJC lists 5 criteria:

1. Judicial independence: An independent judiciary is indispensable to impartial justice under law. Judges should, therefore, uphold and exemplify judicial independence.

2. Integrity: Judges should strive to conduct themselves with integrity so as to sustain and enhance public confidence in the judiciary.

3. Diligence.

4. Equality: Judges should conduct themselves and proceedings before them so as to assure equality according to law.

5. Impartiality: Judges must be and should appear to be impartial with respect to their decisions and decision making. Impartiality is the fundamental qualification of a judge and the core attribute of the judiciary.

The CJC also says that:

(i) "An independent judiciary is the right of every Canadian. Judicial independence is not the private right of judges but the foundation of judicial impartiality and a constitutional right of all Canadians. A judge must be and be seen to be free to decide honestly and impartially on the basis of the law and the evidence, without external pressure or influence and without fear of interference from anyone."

(ii) "Judges should exhibit and promote high standards of judicial conduct so as to reinforce public confidence which is the cornerstone of judicial independence."

(iii)  Public acceptance of and support for court decisions " depends upon public confidence in the integrity and independence of the bench."

On the subject of Equality, the CJC says Judges should strive to be aware of and understand differences arising from, for example, gender, race, religious conviction, culture, ethnic background, sexual orientation or disability.
This is not a commitment to identical treatment but rather "to the equal worth and human dignity of all persons" and "...a desire to rectify and prevent discrimination against particular groups suffering social, political and legal disadvantage in our society."

Quite apart from explicit constitutional and statutory guarantees, fair and equal treatment has long been regarded as an essential attribute of justice.

Equality according to law is not only fundamental to justice, but is strongly linked to judicial impartiality.

The CJC also says that Judges should avoid comments, expressions, gestures or behaviour which reasonably may be interpreted as showing insensitivity to or disrespect for anyone. Examples include irrelevant comments based on racial, cultural, sexual or other stereotypes and other conduct implying that persons before the court will not be afforded equal consideration and respect.

With this context, let us revert to the comment by former Chief Justice of Malaysia Tun Abdul Hamid, who said he was afraid joining the NUCC would make him "a traitor to the Malays and Islam." This expression raises fears among any Malaysian not of Malay ethnicity and/or not a Muslim, that he would not be afforded equal consideration and respect if appearing in court before Hamid.

Of course, he is retired now and is unlikely to be re-appointed as a Judge. But his reported comment :

(i) has raised the question whether he held such apparent opinions suggestive of partiality while he was on the Bench and while he was being consulted on the appointment of many other Judges, during his tenure; and

(ii) has cast a shadow on the entire judiciary as to weaken public confidence in the integrity and independence of the bench and public acceptance of and support for court decisions.
There should be a censure of some kind from official government circles to correct this impression.

It is telling that all is quiet until now.

In any case like Dr Mahathir, I went to the source to get the facts.

Article 124 states that the Chief Justice shall take and subscribe the oath of office and allegiance set out in the Sixth Schedule and shall do so in the presence of the King.

A similar form of oath is taken by every Judge.

I wanted to see if there was any reference to "Malays" or "Islam" in the oath.

The Sixth Schedule of the Constitution gives the Oath of office and allegiance as:
"1,……………..,having been elected (or appointed) to the office of ………….. do solemnly swear (or affirm) that I will faithfully discharge the duties of that office to the best of my ability, that I will bear true faith and allegiance to Malaysia, and that I will preserve, protect and defend its Constitution."

You can see that Hamid never swore to "bear true faith and allegiance" to "the Malays" or "Islam" and neither did he swear that he will preserve, protect and defend "the Malays" or "Islam."

He swore to bear true faith and allegiance only to Malaysia and to preserve, protect and defend  only its Constitution.

Where does the confusion in his mind come from?

- TMI