Many believe judges are the natural protectors of liberty. Tommy Thomas debunks this myth, pointing to the Griffith thesis: judges will lend their support to government measures to preserve ‘stability’ and they will not be overly concerned if such measures require the invasion of individual liberty.
In Malaysia’s political system, the Federal Constitution is supreme. Fundamental liberties are enshrined in Part II of the Constitution. Under the doctrine of separation of powers, the Executive governs the nation, the Legislature enacts the laws, and the Judiciary acts as the arbiter of disputes between citizen and citizen, and State and citizen. The Judiciary, as the third branch of government, is also entrusted with the heavy responsibility of interpreting the Constitution, including deciding whether laws presented by the Executive and passed by Parliament are constitutional. Hence, the celebrated remark by Chief Justice Charles Hughes of the US Supreme Court: “We are under a Constitution, but the Constitution is what the judges say it is.”
One of the major casualties of the never-ending Perak crisis is the institution of the judiciary. When unprecedented and inexplicable decisions are made by our courts such as denying a litigant the right to choose his own lawyer, the leap-frogging of proceedings straight to the Federal Court without a hearing before the High Court and the Court of Appeal, and the disregard of clear provisions in the Constitution, as judicially interpreted in previous Malaysian cases, one can well understand the decline of confidence of the average Malaysian in the judiciary as an independent, neutral arbiter between State and individual.
But do Malaysian judges act differently from their brethren in other jurisdictions? After all, even the Indian Supreme Court, which probably enjoys the distinction of being the greatest protector of civil liberties among courts across the globe, only grew in reputation after the defeat of Indira Gandhi’s regime in 1978. In the first two decades after its establishment, its performance was lack-lustre and during the Emergency the judges were sycophantic to Indira Gandhi. Another example is the US Supreme Court, which in the Bush v. Gore case in 2000 and in the subsequent 9/11 and Guantanamo cases decided blatantly in favour of the Bush administration, at the cost of its prestige.
The British experience
Professor John Griffith, formerly of the London School of Economics, first published the “Politics of the Judiciary” in 1977 which entered its fifth edition in 1997. It became an instant classic on how the senior judiciary in Great Britain, constrained by their own self-imposed limitations, frequently fail in their duty as protector of liberties. Griffith argues that the traditional view of judges deciding disputes between individuals and State impartially and with neutrality is a myth. “Neither impartiality nor independence necessarily involves neutrality. Judges are part of the machinery of authority within the State and as such cannot avoid the making of political decisions.”
Griffith refers to a survey conducted in the United Kingdom in 1994 which revealed that the average age of a Law Lord was 66 years, a Court of Appeal judge 63 years and a High Court judge 57 years. There was no woman Law Lord, only one in the Court of Appeal and six in the High Court. Their educational background was 80 per cent public school and 87 per cent Oxbridge. Judges are thus the product of a class, and share the characteristics and felt necessities of that class. This is not the stuff of which reformers are made, still less radicals or non-conformists. According to Griffith, the judges of those three Courts which make up the higher judiciary, have by their education and training and the pursuit of their profession as barristers, acquired a strikingly homogeneous collection of attitudes, beliefs and principles, which to them represent the public interest. “They do not always express it as such. But it is the lodestar by which they navigate.”
The Griffith thesis is that the judges see themselves as occupying a key position in the struggle to enforce the law, and are always conscious of the dangers which they believe will follow if they do not support the powers of the police. He cites a study in 1994 which analysed 13 appeals from Northern Ireland and showed that the House of Lords found for the government in all but two cases. The brevity of the judgments, the small amount of authority cited and the swift dismissal of arguments based on human rights were common features in the 13 appeals. The study concluded: “By consistently upholding governmental action in Northern Ireland, the House of Lords has ruled itself out of playing a role in the conflict”.
In Griffith’s view, judges value stability above all as necessary for the welfare of the people and the well-being of society. Government represents stability and have a very considerable interest in preserving it. Wherever governments or their agencies are acting to preserve that stability – call it the Queen’s peace, or law and order, or the rule of law, or whatever – the judges will lend their support and will not be over-concerned if to do so requires the invasion of individual liberty. Griffith argues that on every major social issue which has come before the British courts in the final decades of the 20th Century, the judges have supported the conventional, established and settled interests. And they have reacted strongly against challenges to those interests. The result is a “conservative” political philosophy.
Judges are concerned to preserve and protect the existing order. “In the societies of our world today, judges do not stand out as protectors of liberty, of the rights of man, of the unprivileged, nor have they insisted that holders of great economic power, private or public, should use it with moderation”. Regardless of whether a society is democratic or otherwise, the judiciary has naturally served the prevailing political and economical forces. Whether it is matter of lacking personal courage or otherwise, judges are certainly not lions under the throne, as Francis Bacon aspired centuries ago. Griffith’s final words are an eye-opener:
“That this is so is not a matter for recrimination. It is idle to criticise institutions for performing the task they were created to perform and have performed for centuries. The principal function of the judiciary is to support the institutions of government. To expect a judge to advocate radical change is absurd. The confusion arises when it is pretended that judges are somehow neutral in the conflicts between those who challenge existing institutions and those who control those institutions.”
The Malaysian judiciary
Without even taking into account the performance of the judges in the Perak crisis, it is easy to apply the Griffith thesis to the Malaysian judiciary. The 50-year track record of the courts since Merdeka as the constitutional bulwark between Executive and citizen has been dismal. The pragmatic conservatism of the judges, resulting in a very strict “hands-off” policy, has been perceived as their abdicating their constitutional duty in dispute resolution. Whether it is their reluctance to protect detainees under the harsh provisions of the Internal Security Act, 1960 and other preventive detention laws, or the Salleh Abas and five judges cases, the Ayer Molek case, the Anwar Ibrahim prosecutions or the latest Perak constitutional crisis, both informed opinion of the Bar/international legal bodies and public opinion have been critical of our judges. But we must take comfort from Griffith’s study. This is a worldwide phenomenon. As pillars of the establishment, it is a universal principle that judges cannot be trusted with the liberties of the citizen!
Since they have life-time appointments through constitutional security of tenure, judges are not concerned with public opinion as members of the two other branches of government are. Members of the Executive who are also members of the Legislatures in democracies have to face the electorate periodically. Thus, even if Malaysia does not enjoy a true and functioning democracy, at least the electorate has an opportunity every four to five years to vote their politicians. In the politically awakened post-March 2008 Malaysia, where opinion has significantly changed, perhaps our best hope is in the ballot box of 2012 or 2013 and not in the Courts. Expectations of the judges should be lowered. The citizen’s naïve idealism should be replaced by realpolitik. Ambition, elevation to the higher tiers and promotion to the four heads of the Courts – all of which lie in the gift of the Prime Minister and the Conference of Rulers – should be kept in mind when cases that go to the heart of Government are heard by judges with human foibles. The tragedy is that no other branch of government can either properly discharge the judiciary’s duty as constitutional arbiters or resolve individual grievances like Courts can, which therefore remain unfulfilled by default.
Tommy Thomas is an advocate and solicitor.
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