Mohd Dzaiddin Abdullah, as Chief Justice, breathes fresh air into a judiciary gasping for oxygen for a decade and more. Age prevents him doing more. But within six months in office, he returns the judges to their traditional role, and relaxes and removes the bars which his predecessors had imposed.

At the judicial conference in Kota Kinabalu last month, judges presented papers and said their piece how the present can be amended to reflect its glorious past. The judges are as keen to change as the Chief Justice.

A 1998 constitutional amendment denies the judiciary its inherent judicial powers, and judges, in practice, equated to customs and police officers, theirs to dispense the laws and not beyond.

After Salleh Abas was thrown out of his court in a trial that ensured the injustice in trials to come, his two successors ensured justice is not for judges to dispense, as customs and police officers should not bother the whys of what they do.

It is, when all is told, the most constricting impediment to an independent judiciary.

Midnight's Children

The newer judges, uninvolved in past episodes of infamy, cannot see why. When Justice Mohd Hishamudin Mohd Yunus released the two Internal Security Act (ISA) detainees this week, he did no more than question. It is an earthshaking decision only in that it is not expected of him.

But he represents the second and third generation of Malaysia's midnight's children, who reject that his concerns which upset authority must be dealt as harshly as the enemies of his father's and grandfather's generation.

Especially, when then it was of life and death for the nation, while now only of the government in power. The ISA reduced national concerns to the insecurities of the party in power.

Dzaiddin and his judges must initiate changes if the judiciary is to return as an important limb of government.

They attempt to change by piecemeal. It is not enough. The 1998 Constitutional amendment which denied the judiciary its inherent judicial powers must be repealed.

If not, whatever the changes and with the best of intentions, the judiciary would remain stuck in the groove of the past 13 years. However good and far-reaching the changes, it would remain bogged in the contentious groove.

So Hishamudin's landmark decision is important not for its practical impact of releasing two ISA detainees but that he invoked the Constitution to do it. For the first time in a long while, the Federal Court met in haste to affirm the ISA's legality.

But the judge went further. Anyone detained under the ISA must be according to the law, which, in the two cases before him, was not. He accords the Constitution a higher status than ordinary law.

As he should. But judges often do not, and the ISA, a law enacted to deny the Constitution its due, is invoked to keep it that way in ordinary times.

Blew open

But it is for when the state, not government, is threatened, not from political dissidents but a full blown challenge to overthrow the state, not government. The ISA is for that. It is not to pressure political opponents into submission.

It blew open what is suspected: that arrests are made as much to threaten as capriciously. The Inspector-General of Police Norian Mai, appeals against the release, but he should, in fairness, release all arrested with the two Keadilan leaders.

If the two arresting officers had not followed regulations in detaining the men, it is fair to assume the other eight did not. More important, it puts the onus on the police to prove the detentions to be proper.

The judiciary have in the past decade and a half, ignored the Constitution as a document for justice. But the Constitution is a document that is for all time, in which the freedom of the individual is rated the highest.

It is restricted by laws to contain actions against the Constitution itself. But the judges would not hear of it. At least it did not until Hishamudin threw a welcome spanner in the judicial works.

The government is shocked. But when laws deny people to say what they think, as now, they will look to the Constitution for help. It should not have come to this. If judges had their weighted role in society, they would have defined the limits a long time ago.

Instead, judges were appointed, as recently, for their loyalty to the Chief Justice, to whom they were then beholden.

One need not give examples but when these judges are appointed to hear important cases, be it an Anwar Ibrahim trial or an issue the government cannot be seen to lose, the result is known before the cases start.

Run berserk

When judges lose their inherent power, they run berserk. The former chief justice threatened the then Bar Council president and secretary with contempt of court proceedings for suggesting to him he should not preside in a case where a lawyer he went on holiday was a party.

When they replied he should do what he thinks best, he backed down. One judge is accused of allowing the plaintiff's lawyer to write all or part of the judgment in his favour, nothing is done.

In other jurisdictions, where the judiciary is rated high, he could do less but resign immediately, even if the charges are false. Here, he is promoted to the Court of Appeal.

A few years ago, the chief justice of Maharashtra, India, resigned when he accepted an advance of royalty more than his pay to write a book on Islamic law: the resulting furore led him to resign, insisting he did no wrong but he did not want his office mired in controversy.

Dzaiddin and his judges have a tough task to return the judiciary to its past repute. But they cannot by piecemeal changes that mean nothing. The judiciary must be returned its inherent powers.

The Constitution must be amended to ensure it. The Chief Justice must let judges do their work, for no other reason than that it is this collective judicial outlook that frames the society we live in.

In other words, the judiciary must evolve a judicial philosophy of its own, incorporating the best of the Common Law tradition it is based on and the intellectual contributions of its brightest and the best.

Humpty Dumpty

It is a tall order. It would not, cannot, happen overnight. And it takes longer to put Humpty Dumpty back again than break him.

Dzaiddin must look to the Constitution to bring the judiciary back on track. The Kota Kinabalu conference showed he wants to. But he must use all his persuasion to impress upon the government and the Conference of Rulers that without it, little would change.

This would not happen in the two years (or three, if his proposal to extend the retiring age by one year is accepted) he has left. But he can start to put in place the frame on which to build. The journey of a thousand miles begins with the first step.

That first step would be easier when Dzaiddin begins it with the Constitution as his crutch.

If he can achieve it, it would be his greatest monument in the cause of justice in Malaysia.