If I were a judge….
Zaid Ibrahim
Utusan Malaysia has made a call for the unity and solidarity of all Malaysians after the Federal Court’s “decision” to agree with the Court of Appeal that the word “Allah” can be used by Muslims only. The paper said it was time we move on and focus on the nation’s development. I think we all want unity and peace and we all want to move on with our lives, but our judges make strange rulings which cause migraine and sleepless nights. The Allah case is one such example.
From my old recollection of the law, I always thought that leave to appeal to the Federal Court is always given if the matter is of public importance, and especially if it involves differing constitutional interpretations. Even a non-lawyer would agree that the Allah case is of immense public interest and that it involves serious constitutional questions, in particular Articles 3, 10 and 11 of the Federal Constitution. It’s therefore absolutely unnecessary at this stage for the Federal Court to deal with the “substantive arguments” or to affirm the decision of the Court of Appeal when the issue at hand is whether leave should be given. Just look at the criteria for leave under the Federal Court Guidelines 2010 and the Courts of Judicature Act 1964 and decide if the case meets these criteria.
Surely the Federal Court judges know this much about the law. And yet they felt compelled to deny leave—why? The answer, my friend, is blowing in the wind. Perhaps the majority of the judges felt that peace and harmony are more important than granting leave application, i.e. that it was better that the Allah case was “closed”. In their judgment, it was better for peace and harmony in the country to be maintained by rejecting the leave application. As good and responsible judges, they had to be “sensitive” to the needs of the country, and they viewed seriously the outcry staged by some quarters that said public order would be affected if the Allah issue was not settled in a certain way. They took cognizance of the feelings of the angry Muslims who assembled at the courthouse. So they made the decision that the Court of Appeal was correct and they hope, like Utusan, that the people will finally move on.
This is why I would not make a good judge. I would have decided differently. Many years ago, a former Chief Justice invited me to his chambers and offered me the position of a High Court judge. He told me the offer was subject to the Prime Minister’s agreement. I was happy but I told him I had to decline. You see, I knew I would not make a good judge. I do not have the key requirements. First and foremost, you need a rigorous intellect and a mastery of the law, one that would allow you to zero in on key issues and provide clear answers to complex legal questions. I certainly fail in this respect. Next, a judge must not be frightened of pressure from the powers that be. I pass on this point as I am seldom scared of anything, except maybe heights. John Marshall is an example of courage in the US Supreme Court when, during the 19th century in a very white America, he was the voice of equality that championed the rights of all men. He was fortunate they did not lynch him.
