DO­ING THE RIGHT THING IS A JUDGE’S SUPREME DUTY

Sul­tan of Perak Sul­tan Nazrin Muiz­zud­din Shah yes­ter­day paid trib­ute to judges and chief jus­tices who had left an in­deli­ble mark through bril­liant dis­po­si­tions and judg­ments, and in­du­bi­ta­ble in­tegrity. His Majesty ar­tic­u­lated fa­mil­iar­ity and re­spect for t

New Straits Times - - News -

IAM par­tic­u­larly pleased to be present at this significant event this morn­ing to cel­e­brate the con­tri­bu­tions of ‘Yang Amat Arif ’ Tun Arifin Zakaria on the eve of his re­tire­ment from his high ju­di­cial of­fice, as the Chief Jus­tice of Malaysia.

This morn­ing’s event pro­vides a timely op­por­tu­nity to speak about what matters most to judges — that is, their judg­ments, and the im­por­tance of up­hold­ing and ad­her­ing to the prin­ci­ples of the Rule of Law.

Hav­ing had the priv­i­lege of be­ing born to a judge my­self, it would not be an ex­ag­ger­a­tion for me to say that the of­fice of a judge places upon the holder oner­ous du­ties and re­spon­si­bil­i­ties that go be­yond those im­posed on oc­cu­pa­tions in other walks of life.

As the well-known ju­rist David Pan­nick puts it: “Judges do not have an easy job. They re­peat­edly do what the rest of us seek to avoid: make de­ci­sions” (David Pan­nick, Judges, 1987).

In mak­ing de­ci­sions, judges have to give rea­sons in their writ­ten judg­ments. Th­ese writ­ten judg­ments are vi­tal: first, it re­flects the trans­parency and ac­count­abil­ity of the de­ci­sion-mak­ing process, an in­te­gral com­po­nent to gain­ing pub­lic con­fi­dence; and se­condly, it is through th­ese judg­ments that the law is de­vel­oped.

As com­mon law lawyers, in mak­ing their judg­ments, judges should be well armed with a strong nar­ra­tive, in which the jus­ti­fi­ca­tion for the rea­son­ing in their judg­ments is given pride of place.

Th­ese qual­i­ties are clearly ev­i­dent in any read­ing of the judg­ments of great judges of the past and present. Such judges dom- and de­fine their age, even as they are them­selves shaped by it. Some are con­sum­mate ju­di­cial fig­ures, whose legacy of bril­liant judg­ments will be passed on to the gen­er­a­tions that fol­low.

In this re­gard, we will al­ways be in­debted to the lu­cid rea­son­ing we find in the judg­ments of Tun Suf­fian, Tun Azmi, His Royal High­ness Sul­tan Azlan Shah, Jus­tices Eu­sof­fee Ab­dool­cader, HT Ong, SS Gill, and all our other ju­di­cial lu­mi­nar­ies.

When judges re­tire, they leave be­hind a cor­pus of judg­ments, which will con­tinue to be part of the law — to be ap­plied, an­a­lysed and scru­ti­nised. It is th­ese judg­ments that se­cure their place in the le­gal his­tory of the coun­try.

To­day in the col­lec­tion of judg­ments con­tained in the book,

we get a glimpse of Chief Jus­tice Tun Arifin’s con­tri­bu­tion to Malaysian ju­rispru­dence.

Be­yond in­de­pen­dence, im­par­tial­ity and in­tegrity, a judge must also pos­sess a good and sharp mind. If ig­no­rance of the law does not ab­solve an ac­cused per­son, then it must be even more com­pellingly the case that the per­son sit­ting in judg­ment must pos­sess fully, not just the req­ui­site knowledge, but also the sharp fac­ul­ties and in­tel­lect nec­es­sary to ap­ply that knowledge prop­erly.

Good judg­ments are the very cor­ner­stone of com­mon law. They pro­vide the foun­da­tions and fab­ric that form and shape it.

MARCH 19, 2017 Judges must thus con­tin­u­ally strive to re­fine their judg­ments be­fore de­liv­er­ing them. Since their judg­ments de­ter­mine not only the out­come of each dis­pute brought be­fore them, but may also con­trib­ute to the de­vel­op­ment of the fu­ture ap­pli­ca­tion of the law, there is no room for slack in­tel­lec­tual ef­fort.

Even if some may dis­agree with the rea­son­ing or views of some judges in some cases, the sheer majesty and bril­liance of the judg­ments they reg­u­larly de­liver, and the co­a­les­cence of hu­man thought and ex­pe­ri­ence that th­ese rep­re­sent, can­not fail to im­press and in­spire us.

In this light, one might pose the ques­tion of what it is that makes a judg­ment great. And in what con­i­nate text and by what di­men­sions can we mea­sure and com­pare such great­ness? I would like to quote some­thing my father said at the 11th Tunku Ab­dul Rah­man Lec­ture at the Malaysian In­sti­tute of Man­age­ment in Novem­ber 1984.

His Royal High­ness had said, “… The ex­is­tence of the courts and judges in ev­ery or­dered so­ci­ety proves noth­ing; it is their qual­ity, their in­de­pen­dence and their pow­ers which mat­ter…”

In ex­tend­ing to judges the priv­i­lege to serve on the Court, it is taken for granted that among their many qual­i­ties is that of wisdom, to en­sure that jus­tice and fair­ness are up­held in all their judg­ments. But even though, as Fran­cis Ba­con, the former Lord Chan­cel­lor of Eng­land, said, “knowledge is power”, knowledge

and wisdom are not enough. They must al­ways be ac­com­pa­nied by in­tel­lec­tual hon­esty and above all, in­de­pen­dence.

Al­though there is un­doubt­edly value in unan­i­mous opin­ions, it is crit­i­cal that judges speak in dis­sent where nec­es­sary. Some judges may hold strong le­gal and moral con­vic­tions, yet fail to ar­tic­u­late their con­cerns in their judg­ments. They may re­main silent out of def­er­ence to the judg­ments of oth­ers; out of con­cern that their com­ments may be dis­missed; or out of a mis­placed be­lief that what they might have to say is not that im­por­tant. But the Bench, and ju­di­cial de­ci­sion­mak­ing pro­cesses, can eas­ily han­dle the ram­i­fi­ca­tions of a di­ver­gent opin­ion on any given is­sue.

Some­times, the brave dis­sent­ing voice is trans­formed into law. A clas­sic case is that of Brown v Board of Ed­u­ca­tion 347 US 483

(1954) when the US Supreme Court gave weight to the spirit of Jus­tice Har­lan’s dis­sent­ing voice in Plessy v. Fer­gu­son 163 US 537

(1896). As a result, and in a his­toric judg­ment, then Chief Jus­tice War­ren held that racial seg­re­ga­tion in pub­lic schools con­sti­tuted a vi­o­la­tion of the US con­sti­tu­tional guar­an­tee of equal­ity of rights.

And of course, who can for­get Lord Atkin’s fa­mous dis­sent in Liver­sidge v An­der­son [1942] AC 206 and Lord Den­ning’s dis­sent­ing judg­ment in Can­dler v Crane, Christ­mas & Co [1951] 2 KB 164,

both of which had far-reaching con­se­quences for the land­scape of the law there­after.

As I stated ear­lier, judges also shoul­der a heavy re­spon­si­bil­ity in dis­charg­ing their duty to up­hold the Rule of Law.

It is by their judg­ments that judges are made ac­count­able for the de­ci­sions they have made. It goes with­out say­ing that they should be free to ex­press their rea­sons as they think fit. In other words, for the Rule of Law to flour­ish, courts and their par­tic­i­pants should be al­lowed to ex­press a va­ri­ety of ideas and prin­ci­ples. Ev­ery judge should have the op­por­tu­nity to par­tic­i­pate fully, even while the ma­jor­ity de­ci­sion rules the out­come. This ju­di­cial in­de­pen­dence in turn helps to en­sure that the Rule of Law is fully up­held.

It is this ad­her­ence to the Rule of Law that should be the com­pass and leit­mo­tif of all judges in the ad­ju­di­ca­tion of all the matters be­fore them — no mat­ter what the is­sues are, and no mat­ter whose in­ter­ests they are de­cid­ing. This en­sures that jus­tice will al­ways pre­vail.

The char­ac­ter, qual­i­ties and in­de­pen­dence of the judges them­selves also serve to sus­tain pub­lic con­fi­dence in the court. The judges are not there sim­ply to de­cide cases but to de­cide them as they think the cases should be de­cided in the true spirit of jus­tice and fair­ness. Do­ing the right thing is there­fore in­cum­bent on all judges. In fact, it is their supreme duty.

We live in chal­leng­ing times, in which our in­sti­tu­tions some­times seem to be un­der threat. This makes it all the more cru­cial that the pub­lic’s re­gard for the ju­di­ciary should be at its high­est and clear­est. More than ever, we need coura­geous and fair-minded judges to in­stil con­fi­dence that the ju­di­cial sys­tem re­mains sacro­sanct in guard­ing the rights, in­ter­ests and lib­erty of all.

The ju­di­ciary must thus strive re­lent­lessly to dis­pense jus­tice in ac­cor­dance with the Rule of Law. While this is an es­sen­tial pre­req­ui­site for safe­guard­ing civil and po­lit­i­cal rights and en­sur­ing good gov­er­nance, it also pro­vides the foun­da­tion for eco­nomic growth and progress. By pro­vid­ing fair and prompt ju­di­cial de­ci­sions on matters con­cern­ing the en­force­ment of com­mer­cial rights, a well­func­tion­ing ju­di­cial sys­tem helps to pro­mote a com­pet­i­tive and at­trac­tive eco­nomic cli­mate in the coun­try. This in turn fa­cil­i­tates value-adding cap­i­tal for­ma­tion and in­vest­ment.

It is of course by no means the ex­press role of the ju­di­ciary to en­cour­age eco­nomic growth. But en­sur­ing that our ju­di­cial sys­tem de­liv­ers jus­tice re­mains a sine qua non for main­tain­ing a rep­u­ta­tion for fair­ness and ef­fi­ciency, and some­thing our ju­di­ciary should con­tin­u­ally seek to achieve. As our econ­omy and so­ci­ety con­tinue to evolve, the progress be­ing made is thus fur­ther strength­ened by our ma­tur­ing ju­di­ciary, and by the in­tegrity of the ju­di­cial de­ci­sion-mak­ing process.

Thus, I re­turn to the ques­tion posed ear­lier of what makes a judg­ment great. My own be­lief is that a great judge­ment is one in which the de­ci­sion-maker fully un­der­stands that he is the guardian of the Rule of Law, and in which his fi­delity to its pre­cepts is ab­so­lute.

In this re­gard, I would like to end with a quote again from my father, His Royal High­ness Sul­tan Azlan Shah, who, like Tun Arifin, was also the Chief Jus­tice.

I quote: “The rules con­cern­ing the in­de­pen­dence of the ju­di­ciary… are de­signed to guar­an­tee that they will be free from ex­tra­ne­ous pres­sures and in­de­pen­dent of all au­thor­ity save that of the law. They are, there­fore, es­sen­tial for the preser­va­tion of the Rule of Law.”

Ladies and Gen­tle­men,

‘Yang Amat Arif ’ Tun Arifin Zakaria has had a long and il­lus­tri­ous ca­reer on the Bench. As a judge, he wrote some out­stand­ing judg­ments, some of which are con­tained in this new book, Jus­tice Above All.

The judg­ments se­lected for this col­lec­tion, each ac­com­pa­nied by one or more com­men­taries by em­i­nent lawyers, should stim­u­late read­ers, and chal­lenge the bound­aries of their le­gal imag­i­na­tions in the most significant way. Tun Arifin’s work en­com­passes a di­verse range of is­sues. The book will un­doubt­edly in­flu­ence think­ing on the weighty matters that the judg­ments ad­dress, and con­trib­ute in this way to­wards the fur­ther de­vel­op­ment of Malaysian ju­rispru­dence.

I be­lieve that Tun Arifin’s place in his­tory is as­sured, as it stems from the es­sen­tial fact that through his life­long work with the law, Malaysian ju­rispru­dence has grown im­mensely in size and form. I am cer­tain that this book will have a place of promi­nence on any book­shelf.

Tun Arifin, I wish you a happy re­tire­ment.

Den­gan Kal­imah Bis­mil­lahi Rah­manir Rahim, it is my plea­sure to launch the book Jus­tice Above All: Se­lected Judg­ments of Tun Arifin Zakaria with Com­men­taries.

Tun Arifin Zakaria’s book ‘Jus­tice Above All: Se­lected Judg­ments of Tun Arifin Zakaria with Com­men­taries’, which was launched yes­ter­day.

BER­NAMA PIX

Sul­tan of Perak Sul­tan Nazrin Muiz­zud­din Shah with Tun Arifin Zakaria at the launch of the book, ‘Jus­tice Above All: Se­lected Judg­ments of Tun Arifin Zakaria with Com­men­taries’ in Kuala Lumpur yes­ter­day.

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