Of judicial independence and the right to a fair trial
THE former Lord President Salleh Abas in Lim Kit Siang v Dr Mahathir Mohamad stated the following:
“The Courts are the final arbiter between the individual and the state and between individuals inter se, and in performing their constitutional role, they must of necessity and strictly in accordance with the Constitution and the law be the ultimate bulwark against unconstitutional legislations or excesses in administrative action.”
It is not possible to have a successful democracy without a fair and impartial judiciary and it is not possible to have a fair and impartial judiciary that lacks independence.
Malaysians need to have faith in the independence, fairness and impartiality of our judges because they look to our courts as a place where they can get a fair trial.
A fair and impartial court is essential to the country’s democracy. While there must be separation of powers between the judiciary and other branches, there must also be collaboration. The judiciary depends heavily on the other branches for its support, the execution of its orders, and the substance and procedures of the law itself.,
Judicial independence serves the rule of law, but this is only the case if the judiciaries’ rulings command respect and if the substance of the law and the prescribed procedures are consistent with the common sense of justice and fairplay.
The appearance of fairness and impartiality is almost as important as the reality, and the two are not easily separated.
Even though the appointment of judges is governed by article 122B of the Federal Constitution, whereby the Yang di-Pertuan Agong appoints judges on the advice of the prime minister after consulting the Conference of Rulers, the chief justice and the respective chief judges, the government seeks out those who have had certain kinds of experiences, for example as prosecutors, or who have expressed certain views on matters of legal policy.
It does not mean that judges chosen for those reasons, once in office, would be identical to others on the bench in outlook or judicial philosophy who were chosen for different reasons.
Thus, it should be acknowledged that judges are human beings in robes, selected by political actors, and they will exercise discretion and judgment in different ways.
Each would have discretion and call for the exercise of judgment. Otherwise if the law were so specific and determinate, then all of them would have reached the same conclusions and quickly, on any point of law or exercise of judicial power.
Then a computer could now do the job of the judge even without further advancements in artificial intelligence. The country would not need judges who are learned or courageous or blessed with powerful intellect or common sense or humility or integrity or a deep commitment to equal justice. None of that would be relevant. Judges would also not be criticised or find themselves under attack for merely applying matrices and highly specific rules and codes.