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.

Of late, there are pressing threats to judicial independence and to fair and impartial judging in the country.

The response of the chief justice to this problem has been extraordinary and a powerful example of judicial leadership.

The problem, however, has by no means been solved.

Because judges do not have crisis managers and communications specialists, they are at risk of saying the wrong thing, in the wrong way, and in the wrong place. They even risk offending some of their own colleagues and creating rifts within a court if they say too much or too little, or in the wrong tone. The judiciary might wish to explain and put the controversy to rest.

However, the opponent’s goal is just the reverse.

A judge’s response may engender an even more bitter and unfair response, motions to recuse, and the like. This kind of conflict is distasteful to most judges, but not so the critics.

In the few calls for a fair trial of late in the country, the test of whether or not there is a pre-conceived view on the merits is not susceptible to being phrased in a clear-cut rule. In fact, much will depend on the overall legal situation of the case under evaluation.

The real test for the court is whether there exists a circumstance according to which a litigant could reasonably apprehend that a bias attributable to a judicial officer must have operated against him in the final decision of the case.

In February, the Court of Appeal dismissed a civil suit appeal by Anwar Ibrahim, who sought to reinstate his lawsuit against the government relating to his second sodomy conviction.

Anwar alleged in his lawsuit that Muhammad Shafee Abdullah, who was an ad-hoc prosecutor in the sodomy case, was not independent as he received RM9.5 million from former prime minister Najib Razak to lead the prosecution against him at the Court of Appeal and the Federal Court from 2013.

Even though Anwar’s application to reinstate the suit was supported with an affidavit of the special officer to the then attorney-general, who affirmed that Shafee received RM9.5 million from Najib between 2013 and 2014 for handling the appeal, a three-men panel chaired by Justice Lee Swee Seng sitting with fellow justices Abu Bakar Jais and Supang Lian was unanimous in its decision to dismiss the suit.

The judges ruled that Anwar’s claim was a mere assertion not backed by evidence, and “the assertion that Shafee was not independent as a lead prosecutor is devoid of any merits.”

The bench also said any purported payment by Najib to Shafee is a matter for the Malaysian Anti-Corruption Commission to investigate and the attorney-general to prosecute if there is corrupt payment and receipt of the said sum.

The panel further said that even if it was proven that the money was paid to Shafee by Najib, it would not have affected the appeals at the Court of Appeal and the Federal Court as the decisions given by those courts were given by judges independently and without any influence or knowledge of any payments between the two individuals.

The court added that Anwar had his right of hearing beginning at the High Court, and was not denied the opportunity to defend himself up to the highest court. – July 10, 2022.

* FLK reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.