Judicial independence – a matter of perception?
The question of whether judges have the required integrity or independence is largely a matter of perception. That is why it is often said that justice is always on trial. Be that as it may, perception is the key to whether the public in general have confidence in the courts and the system. Hence the requirement that justice must not only be done but more importantly must be seen to be done.
Aziz Bari, The Ant Daily
Another issue that is related to the matter of perception is the notion of bias. The law dictates that what matters in deciding whether there is bias is the likelihood: what the complainant needs to point out is the likelihood of being biased. This means what the law requires to disqualify a judge on this ground is the possibility of being biased: one does not need to show that there is actual bias involved.
As far as the judiciary is concerned, the quality of being independent does not remain static: it goes up and down. And this is true for all countries in the world. A judiciary may be seen as independent today, but it may not be so tomorrow. This requires the judges to be on their toes at all times: they simply cannot afford to be complacent.
Given these considerations, one wonders if the public were convinced with the assertion made by Chief Justice Tun Ariffin Zakaria on March 13 that the court was not biased in judging the cases involving parliamentary Opposition Leader Datuk Seri Anwar Ibrahim as well as his lawyer Karpal Singh. The former, who is the MP for Permatang Pauh, has been slapped with a five-year imprisonment by the Court of Appeal for sodomy. He was earlier slated by his party PKR to contest in the Kajang state by-election on March 23.
Meanwhile Karpal, who is the DAP chairman and MP for Bukit Gelugor, was fined RM4,000 for sedition by the High Court. Both have been granted stay of execution pending appeals to the Federal Court and Court of Appeal respectively but there is a likelihood that the two leading figures of Pakatan Rakyat will eventually lose their parliamentary seats as a result.
While the head of the judiciary may be right on the technical issue of bias, he may not be so on the manner the judiciary has conducted itself on the whole thing, particularly the bigger issue involving the judiciary as one of the checks and balances in the system. While it has to be admitted that the judiciary does not have a say over the decision to prosecute which is vested with the executive, the judges certainly have the option to disentangle themselves from being seen as part of the entire scheme plotted by Umno-BN which apparently is getting restless with the Pakatan advance.
As far as the law is concerned, imposing harsher sentences on both the parliamentary opposition leader and DAP chairman was not the only available choice. Here is the reason why some sections of the public perceived the judiciary guilty in the court of public opinion as charged. In a way the judiciary has abdicated itself from being an impartial arbiter for the system.
Such was the inescapable impression given the manner the Court of Appeal insisted on speeding up the hearing of the appeal, something that took place the moment Anwar was slated to contest in the by-election. The court also refused to allow postponement asked by his defence team even though the judges were told that the lawyers were engaged elsewhere. The speed with which the court handed down the guilty verdict too has raised eyebrows, not only here but also abroad as exemplified by EU and ICJ through their statements of concern.
Added to these are the manner the trial was conducted at the High Court and the manner the police pursued Anwar before he was taken to court for the Sodomy II trial. At one point he had to take refuge at the Turkish embassy. It has to be said that there have been cases in the past where the court specifically mentioned the prevailing scenario that has somehow given direction to their decision.
As for Karpal’s case, one finds it hard to believe that a lawyer who was just putting up his legal opinion on the public domain got prosecuted for sedition. This is particularly so when the issue he was commenting involved the highly questionable dismissal of the then Perak Menteri Besar Datuk Seri Mohamed Nizar Jamaluddin in 2009. This case remains the only occasion in this 21st century where an elected head of government got dismissed by a non-elected head of state.
The court should have taken a softer approach bearing in mind Karpal’s position. This is more so when the Constitution itself has been amended – in 1993 – to allow MPs to criticise the Yang di-Pertuan Agong and the rulers so long as this does not amount to abolishing the monarchy system.
