How uneven are our scales of justice?

In an exchange with Tommy Koh at a seminar on ‘Japan as an economic power and its implications for South-East Asia’ in 1974, the Singaporean diplomat reminded me that members of the legal profession did not comprise members of the world’s oldest profession, perhaps only second.

That’s probably untrue as they could be third or fourth on this list.

Whatever anyone’s opinion of lawyers derived from personal experience is - we should not forget that lawyers generally sell their services to the higher bidder - there needs to be concern about how unevenly tilted the scales of justice in Malaysia have become.

Surprisingly or not surprisingly, there has been little discussion of this important topic though we have had a courageous whistleblower, Justice NH Chan, who called attention to the shortcomings of some of his former judicial colleagues in his book, ‘Judging the Judges’, subsequently printed in its second edition as ‘How to Judge the Judges’.

Although Justice Chan, who sadly passed away recently, directed his criticism principally against his senior colleagues, his reiteration of the fundamental underpinnings of justice administration resonate in its relevance to the entire judiciary and other members of the legal profession.

To him, the epitome of justice is a fair trial and this requires that the judge must do justice according to law - “this is what the rule of law is all about”. The judge must be fair and impartial. At the same time, it is important that even litigants who lose should feel that they had a fair trial.

Justice Chan also felt that the public should have sufficient knowledge to enable them to judge the performance of the judges.

However, even when there is public scrutiny - which rarely happens except in the most attention-grabbing of cases, say one in every tens of thousands - it appears to be well-nigh impossible to bring anyone from the judiciary - from the lowest subordinate magistrate level to the highest level of federal supreme judge - to book for any abuse of power, corrupt practice or judgment or judicial behavior seen to be unfair or unjust.

The royal commission’s no-action decision on the notorious VK Lingam case serves as a good example.

Being fair and impartial means that each and all members of the judiciary especially have to rise above the factors of class, race or religion in arriving at judgment. Do integrity and impartiality constitute the norm or is the judiciary - as with the rest of the civil service - influenced by extraneous factors in the cases they hear?

To what extent, for example, are members of the judiciary influenced or affected by the racial identity of the accused and/or of the lawyers in the cases they hear? Are they likely to be more lenient when sentencing members from the rich and powerful strata of society or from members of their own racial grouping?

Are they biased against those from the poorer classes who do not have the services of sharp and expensive lawyers to ensure that they get a fair trial or against those from different racial or religious groups?

Seldom raised in public realm

To my knowledge, these and similar questions have seldom been raised or discussed in the public realm. Colleagues from the legal fraternity to whom I have addressed this question in private, although generally agreeing that the judiciary is far from being independent or free from political influence, argue that the scales of justice are generally evenly and fairly administered in Malaysia in terms of the influence and impact of race and religion.

The most recent findings in the 2016 Rule of Law Index conducted by the World Justice Project appear to contradict this view. This is Malaysia's score on the following components of civil and criminal law

Civil justice

No discrimination - 0.5
No corruption - 0.5
No improper government influence - 0.38
Accessibility and affordability - 0.5

Criminal justice

No discrimination - 0.51
Due process of law - 0.57
No improper government influence - 0.39
Timely and effective adjudication - 0.53

Source here, p110.

What the data by this organisation seems to indicate - the index is based on over 100,000 households and 2,400 expert surveys to measure how the rule of law is experienced, but we do not know the details of this sampling for Malaysia - is that one out of every two cases of civil and criminal justice in the country is tainted by discriminatory or corrupt action by the law enforcement agencies, including the judiciary.

Public attention - local and international - has tended to focus on issues related to fundamental rights and freedoms, constraints on government powers, and open government.

However in a robust and thriving democracy, it is equally important to ensure that the rule of law - as experienced in practical, everyday situations by ordinary people - is also subject to scrutiny and reform so that it is fair and impartial in all aspects.

A good example of such public examination is that recently conducted by British Columbia in its 2012 Justice Reform Initiative which resulted in a white paper and road map for justice reform in the state. We are sorely in need of such an initiative or minimally a clear and useful dialogue on this often neglected aspect of the Rule of Law. Perhaps the Bar Council can take the lead in this exercise.

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LIM TECK GHEE is a former World Bank senior social scientist, whose report on bumiputera equity when he was director of Asli's Centre for Public Policy Studies sparked controversy in 2006. He is now CEO of the Centre for Policy Initiatives.- Mkini