COMMENT In an exchange with Tommy Koh at a seminar on ‘Japan as an economic power and its implications for South-East Asia’ in 1974, the Singaporean diplomat reminded me that members of the legal profession did not comprise members of the world’s oldest profession, perhaps only second.
That’s probably untrue as they could be third or fourth on this list.
Whatever anyone’s opinion of lawyers derived from personal experience is - we should not forget that lawyers generally sell their services to the higher bidder - there needs to be concern about how unevenly tilted the scales of justice in Malaysia have become.
Surprisingly or not surprisingly, there has been little discussion of this important topic though we have had a courageous whistleblower, Justice NH Chan, who called attention to the shortcomings of some of his former judicial colleagues in his book, ‘Judging the Judges’, subsequently printed in its second edition as ‘How to Judge the Judges’.
Although Justice Chan, who sadly passed away recently, directed his criticism principally against his senior colleagues, his reiteration of the fundamental underpinnings of justice administration resonate in its relevance to the entire judiciary and other members of the legal profession.
To him, the epitome of justice is a fair trial and this requires that the judge must do justice according to law - “this is what the rule of law is all about”. The judge must be fair and impartial. At the same time, it is important that even litigants who lose should feel that they had a fair trial.
Justice Chan also felt that the public should have sufficient knowledge to enable them to judge the performance of the judges.
However, even when there is public scrutiny - which rarely happens except in the most attention-grabbing of cases, say one in every tens of thousands - it appears to be well-nigh impossible to bring anyone from the judiciary - from the lowest subordinate magistrate level to the highest level of federal supreme judge - to book for any abuse of power, corrupt practice or judgment or judicial behavior seen to be unfair or unjust.
The royal commission’s no-action decision on the notorious VK Lingam case serves as a good example.
Being fair and impartial means that each and all members of the judiciary especially have to rise above the factors of class, race or religion in arriving at judgment. Do integrity and impartiality constitute the norm or is the judiciary - as with the rest of the civil service - influenced by extraneous factors in the cases they hear?
To what extent, for example, are members of the judiciary influenced or affected by the racial identity of the accused and/or of the lawyers in the cases they hear? Are they likely to be more lenient when sentencing members from the rich and powerful strata of society or from members of their own racial grouping?
Are they biased against those from the poorer classes who do not have the services of sharp and expensive lawyers to ensure that they get a fair trial or against those from different racial or religious groups?