A Judge Must Always Be Independent Of The Executive Government

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We are not the appointed court judges and worst, we are not learned enough or understand fully about the country's laws and cannot simply pass judgement on our judges. We are lucky enough to have previous or retired judges with integrity and reputation to guide us on the rights and wrongs that our present court judges presiding over political cases.

This article written by N. H. Chan for The Malaysian Insider web portal is reproduced for your further understanding the court decision on the Perak power grab.


By N.H. Chan

IPOH, Feb 6 — For the anniversary of the power grab for control of the Perak state government by Barisan Nasional, The Malaysian Insider asked me to write an essay on the topic that the biggest casualty out of that entire episode is the Law.

The Law is not a casualty. It is the integrity and reputation of a great number of the country’s judges that has been tarnished. Those affected are the judges of the High Court but mostly they are the judges in the higher echelon of the judicial hierarchy.

They think they can ignore the provisions of the Federal and the Perak State Constitutions, even the statutes enacted by Parliament, so long as they side with the government of the day. Whether or not they have intentionally taken one side or the other is not the point, it is the public perception of their decisions that they are one-sided that matters.

The recalcitrant judges have sullied the good name and reputation of our nation irreparably. In the eye of the international community, Malaysia is now a pariah state; it is no better than Zimbabwe, Myanmar and other rogue nations where the rule of law is only a myth and where the notion of separation of powers or the independence of the judges seems to be beyond the reach of their comprehension.

Chan says the integrity and reputation of a great number of the country’s judges has been tarnished. — Pictures by Choo Choy May

But this is not the essay that I wish to write. I want to write about the phenomenon of a growing public awareness in this country of the people’s ability to judge the judges. These people already know right from wrong.

It lies — as Lord Denning puts it in “The Family Story”, page 191 — “in the instinct for justice, which leads us to believe that right, and not might, is the true basis of society; and … in the instinct for liberty, which leads us to belief that free will, and not force, is the true basis of government. These instincts for justice and liberty are abstract ideas which are common to all freedom-loving countries.”

In addition to this instinctive awareness, the knowing public have also read the many articles that I have posted on the Internet about the bad judges who have refused to do their duty to administer justice according to law. As a result the general public have become adept in their ability to judge the judges.

All that is needed to enhance the people’s awareness of the law and to hone their skill in judging the judges is a little prod from me now and then. Like reminding them that the keystone of the rule of law is the independence of the judges.

As pointed out by Lord Denning in “The Family Story”, page 191, “the independent judge will always balance rights with duties, and powers with safeguards, so that neither rights nor powers shall be excluded or abused.”

Therefore, a judge must always be independent of the executive government. If a judge does not appear to be independent of the executive, he will lose the confidence of the people. Once that confidence and trust is lost that is the death knell of the judge’s standing in society. We have heard so often the remark “I don’t respect our judges anymore” since the power grab began.

Out of the power grab has sprung public awareness of the wrongs that could be committed by the judges themselves in their decisions. The people now know when a judge has done wrong. They can now judge the judges. The ability to judge the judges by the ordinary people of this country is the best legacy that came out of the dark events of the power grab by unscrupulous politicians.

There is a book by Sultan Azlan Shah with the title “Constitutional Monarchy, Rule of Law and Good Governance,” Professional Law Books and Sweet & Maxwell Asia, 2004. In the book on page 59, the royal author writes:

“The judges are not beholden politically to any Government. They owe no loyalty to Ministers. They have longer professional lives than most Ministers. They, like civil servants, see Governments come and go. They are lions under the throne but that seat is occupied in their eyes not by Kings, Presidents or Prime Ministers but by the law and their conception of the public interest.” (I have supplied the emphasis.)

The above passage is repeated on page 167 of the book.

Actually, it was Francis Bacon in his essay, “Of Judicature”, who said (see Lord Denning, “What Next in the Law”, page 335):

“Let judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.”

The full quotation as shown above has a sinister connotation. What Francis Bacon was saying is this: let judges have the power but the power must be subject to the power of the King (or in modern times, the government of the day) so that they do not check or oppose the King’s sovereignty (or the government’s authority).

Lord Denning’s immediate response to Francis Bacon is (he is still on the same page 335):

“True enough if the Throne is occupied by a constitutional monarch as ours is. But the judges are not to be lions under the Government of the day — or of any Government. They are and must be independent of the executive government — ready to check or oppose it if it should in any way misuse or abuse its power.”

So now you can see, it does not mean that judges are under the law as the passage in the book by Sultan Azlan Shah tries to say. In fact the duty of a judge is to administer justice according to the law.

His whole duty is to deal out impartial justice and to apply the law as it stands. Judges are, therefore, not to be lions under the government of the day or of any government. As pointed out to us by Lord Denning, judges are and must be independent of the executive government — ready to check or oppose it if it should in any way misuse or abuse its power.

According to Francis Bacon, judges are lions under the throne of the King (or in modern times, the government of the day) so that they do not check or oppose the King’s sovereignty (or the authority of the government of the day)

According to Sultan Azlan Shah, judges are lions under the throne of the law. But this is wrong. Judges are not under the law. It is their duty to administer justice by applying the law of the land.

According to Lord Denning, judges are not to be lions under the government of the day — or of any government — so that they are ready to check or oppose it if it should in any way misuse or abuse its power.

It is axiomatic that a judge should not be interested in power at all for power corrupts and absolute power corrupts absolutely. Lord Nolan in his lecture “Certainty and Justice: The Demands on the Law in a Changing Environment” in the book “The Sultan Azlan Shah Law Lectures”, Professional Law Books and Sweet & Maxwell Asia, 2004, pages 312, 313, said:

“… judges are not interested in the pursuit of power. If they were, they would not have become judges.”

I end this short essay with an ominous note. In “What Next in the Law” Lord Denning refers to this left-wing Labour bulletin, pages 333, 334:

“The Times on 26 November 1981 reported a left-wing Labour bulletin as saying:

‘Let them be warned. When courts and judges, with all their magisterial splendour, render themselves illegal in the eyes of the people, then they invite us — the moment we are strong enough — to sweep them away’.”

I am quite sure that our people will be able to deal with those threats. But to do so we must maintain the high quality of our judges. I would make so bold as to say that their quality is as high as ever it has been.

But the high quality of our judges is suspect. The power grab has exposed their lack of integrity by their previous misconduct of not applying the law as it stands. Any change in government by a general election could easily have them removed. Unless they recant from their misdeeds before then.