The concept of judicial independence, deeply rooted in every civilised society, covers both the independence of the individual judge and the collective independence of the entire institution.

In order for Malaysian courts to discharge their critical duty of interpreting the Federal Constitution, resolving disputes impartially and passing judgments that will be accepted by the litigants and society generally, judges must be independent and free from any external control, pressure or influence, and perhaps more importantly, perceived as independent and impartial.

This is particularly so, when one of the parties to the litigation is the executive branch of government or one of its agencies

Ultimately, whether the judiciary in any nation is regarded as independent will not only depend on its constitution and its legal system, but to a larger measure on the personality and character of the persons who hold judicial office.

Judges are not desensitised and passionless automatons. Judicial decision making is influenced, consciously and subconsciously, by the human qualities and idiosyncrasies of those who sit in judgment.

Thus, the identity of the judge, his character, his moral fibre, his integrity, his courage, his thinking process and the values he brings with him to the bench, are of crucial importance in determining the decision he makes, and the content and quality of the judgment he delivers.

As Harold Laskie once famously remarked: "I wish that people could be persuaded to realise that judges are human beings; it would be a great help to jurisprudence."

For a 31-year period from 1957 to 1988, the Malaysian judiciary enjoyed a high reputation for its independence and integrity. Judges like Suffian, Raja Azlan Shah and Eusoffee Abdoolcader were rated as luminaries, not only by lawyers and academics in Malaysia, but by their counterparts in other common law nations.

Theirs was a well earned international reputation. I suggest that the principal reason why Malaysian judges were held in high esteem during this period was because they were invariably making right, correct or proper decisions, according to the evidence and the law.

Thus, apart from complaints from the unsuccessful litigant against the judge who held against him (who is expected to complain when he fails anyway!), there was hardly any criticism from the Bar or from academia, that is, the informed legal opinion, on the conduct of our judges.

Hence, if criticism was muted against Malaysian judges during the first decades since Merdeka it was because they were essentially making the right decisions.

Judiciary's downfall

In 1988, the lord president was suspended and dismissed. His deputy chaired the tribunal that sat in judgment over the lord president and recommended his removal, only for the deputy to take his office thereafter.

Five other Supreme Court judges were also suspended, and tribunalised. Two were dismissed and three were reinstated. The Malaysian judges who served on the two tribunals were duly promoted, with one ultimately becoming the chief justice (the new title for the office of lord president) and another the president of the Court of Appeal.

Therefore, it comes as no surprise that more than 15 years after the sacking of three Supreme Court judges and the suspension of six more, that the Malaysian judiciary has not recovered from the grave attacks on it by the executive. The institutional damage done to the third branch of government has been irreparable and irreversible.

The image and credibility problems faced by the judiciary were compounded by a series of high profile cases in the 1990s, all of which put the court in poor light.

The unconstitutional sitting of the Federal Court in the Ayer Molek case was profoundly embarrassing. A sitting judge wrote a poison pen letter, another resigned rather than being transferred to Tawau, photographs of a judge on holiday with a lawyer were posted on the Internet and a judge publicly admitted receiving telephone directions from the chief justice on how to decide a case.

By 1998, the Malaysian Bar and international legal bodies had so heavily criticised the Malaysian judiciary, that many judges were stating that they did not want to be publicly known as judges.

Repeated calls for the establishment of a judicial commission to recommend appointment and promotion of senior judges fell on deaf ears.

Anwar's cases

In September 1998, the deputy prime minister and finance minister, Anwar Ibrahim, was sacked from his post, arrested, beaten up and finally charged. Persons perceived close to him like Nallakaruppan, Munawar Anees and Zainur Zakaria were dealt with harshly by the judiciary.

Anwar faced corruption and sodomy charges in two separate trials. He was found guilty on all the charges and given a total of 15 years imprisonment. Out of a total of 14 judges who heard his cases in different courts, 12 found him guilty; his only success was before the majority judges in the very recent Federal Court decision.

The raison d'etre of a judge is to render justice. Public confidence in the judiciary is eroded when decisions of judges are not accepted in the court of informed legal opinion and in the court of public opinion as being consistent with justice.

However free a judge is to reach a decision and to give reasons for it, judicial decision making is not wholly subjective. On the contrary, a large measure of objectivity is involved in the judicial process.

Thus, a judge is required to reach his decision on the evidence before him and in accordance with the law. In high profile cases, members of the wider brotherhood of law, whether practitioners, academics or others, have an opportunity of reviewing the evidence, analysing the law and scrutinising the reasoning that a judge applies in reaching his decision.

The Anwar Ibrahim cases underwent such public scrutiny and was found sadly wanting. Hardly any lawyer in the 12,000 strong Malaysian Bar was satisfied that the prosecution had adduced sufficient evidence to justify convictions on the criminal burden of proof, that is, beyond reasonable doubt.

The denial of bail was incomprehensible. Finally, the sentences were wholly excessive. That explains the resolutions that the Malaysian Bar passed and the repeated public statements that the Bar Council issued expressing the dissatisfaction of Malaysian lawyers on the conduct of the Anwar cases.

Regaining credibility

Merely because many in the Bar hold the view that Anwar did not receive fair trials does not mean that they support him in his political struggle. Lawyers are trained to review a case on the facts and the law; the personality of the litigant, accused or victim is irrelevant.

This fundamental principle is perhaps best symbolised by the fact that the lady holding the scales of justice is always blindfolded; justice is, in that sense, blind.

We were not alone. Nearly every international legal organisation that reviewed his trials criticised them. One would be hard pressed to find a single legal commentator of independence and integrity who would support the convictions.

That may explain why the recent majority judgment of the Federal Court in the second Anwar Ibrahim case was received with relief by members of the Bar.

However, it seems that the principal beneficiary of the Federal Court decision is Prime Minister Abdullah Ahmad Badawi, who is perceived, not just by many in the law, but by large sections of the population, as being in some way responsible for the decision. Moreover, because the decision was a good one, the prime minister's popularity, already well established after 10 months in office, soared after the court decision.

There is no doubt of the prime minister's sincerity in word and deed of not interfering in any way with the judicial process. One hopes that the judges will henceforth cease second guessing the prime minister's wishes and intention in any particular case, and just decide cases before them on the facts and the law.

The common man recognises injustice; indeed, the cry for justice is universal and timeless. When the common man is disillusioned by a series of judicial decisions invariably concerning persons who have fallen out of favour with government, his confidence in the court wanes.

After all, the common man is a consumer of the judicial system, and courts exist for his protection and benefit. The court cannot demand respect by contempt orders; respect has to be earned over time by proper judicial conduct and correct judicial decisions.

If the Malaysian judiciary intends to recover its glory, it is to be done not through speeches, interviews or releasing statistics of how they have cleared the backlog of cases. There is only one way of enhancing judicial credibility, and that is for judges to make the right decisions, without fear or favour, and regardless of the personality of the party or the accused before them.

If Malaysian judges can reach the correct decisions regularly and consistently over a decent period of time, one can state with certainty that the confidence, initially of informed legal opinion and subsequently that of the public in general, will return.

As an active participant in the legal system, it is my fervent prayer that our judges will in the coming years decide cases correctly so that they can be proud of their contribution to the nation, rather than, in the words of a senior judge 'hiding their embarrassment behind the dark tint of their car windows'.

TOMMY THOMAS is an advocate and solicitor of the High Court who read international relations at the London School of Economics, and who has always maintained an interest in politics.