Dilemma of our justice system where overwhelming majority of judges are Muslims

Written by Param CumaraswamyCPIAsia

Commentary

The judgment of the Court of Appeal on the use of the word ‘Allah’ in the Herald (the Catholic weekly) Bahasa Malaysia edition raises a very fundamental question affecting the Malaysian justice system. The question is whether our courts, particularly the Appellate Courts, namely the Court of Appeal and the Federal Court where the majority of judges are Muslims professing the Islamic faith, could dispense justice independently and impartially on such an issue.

Constitutionally judges are expected to decide cases before them, whether on questions of law or facts, independently and impartially without fear or favour. Independence not only from extraneous interference but independence from their personal beliefs, convictions and prejudices. They must not only be independent from these factors but must be seen and perceived to be so by the general public. Can our Muslim judges be perceived to decide on such an issue independently of their personal beliefs and convictions?

Whether in such cases these judges should recuse themselves or be called upon to recuse may not solve the problem. With such a weighted composition in these courts, the doctrine of necessity will compel them to sit and decide. This is a real dilemma for our justice system in a multiracial, multi-religious, multilingual and multicultural country. In the final analysis we seem to be left with no alternative save to rely on the good conscience of our judges. If this judgment is appealed to the Federal Court, I hope it is appealed, the full Bench of that Court should be convened.

The writer is the former UN special rapporteur on the ‘Independence of Judges and Lawyers’