K. SILADASS

Interference with Judiciary

          I refer to your story, “Judiciary Not Immune to Interference”, (NST 22.2.2019). That story indeed evokes pertinent points calling for profound deliberation.

          The primary principle to remember is that there must not be any interference from any quarter with the judiciary. Any interference must be shot down as a calculated move to undermine the judiciary and its independence. The view that the judiciary is vulnerable to outside influence is a weak argument aimed at justifying disgraceful means to deflect the course of justice.

          The present complaint against the judiciary, apparently is not confined to conversion issues i.e. a non-Muslim converting to Islam, as had been highlighted; however, it is one of the reason which had been taken as an example to demonstrate that the judiciary can be vulnerable.

          Prior to Independence the civil courts dealt with all the problems whether they be Islamic or non-Islamic. This trend continued even after 31st August 1957 when the Federation of Malaya gained Independence and when Malaysia was created on 16th September, 1963.

          Perhaps we must first ask the question what do we mean by court? In the evening of the twentieth century the English Master of the Rolls asked: “What is a court?” And he answered: “This remarkably ugly room is called a court, but it is not the ugly room that is a court. It is a court because “we [judges] sit in it” (the word in brackets mine).
       
The learned Master of the Rolls did not venture further to define what is meant by “judges”. Perhaps that was unnecessary as it was well ingrained principle that judges had to be honest, incorruptible and be faithful to justice and not to the dictates of his whims and fancies. History is peppered with instances where judges have been faithful to their offices and refused to lean towards unfair practices. We have one judge who bravely declared that the king is not above the law. This was some centuries ago, and it happened in England. But, there had been also cases where judges have failed to live up to the demands of correct attitude of their oath of office.

          Now reverting to our own judiciary our courts have come away far from the ugliness or discomfort of the building the judges sit, which we call courts. The courts are fitted with modern facilities, and are comfortable.

We could ask did Malaysia have judges whose quality of honesty, incorruptibility had been suspect? Have the judges omitted to honour their constitutional duties? The answers must be in the affirmative; for, in the year 1966, on the eve of his retirement, the then Lord President of the Federal Court. Tun Sir James Beveridge Thomson wrote,

          “But though there have been changes in organization the highest standards in the actual administration of justice have at all times been maintained. That is because both Judges and practitioners have acted on the basis that the only standard of professional conduct and integrity is the highest.”

          And he added,

          “And what has been a source of particular pride to myself has been the way that the new generation of local Judges have held on high burning even more brightly the torch handed to them by their predecessors. The future holds no ground for fears or doubts.”

          It might have been observed that Thomson was referring to “the highest standards in the administration of justice”, which had been maintained at all times. He went on to define the quality of the highest standard in the administration of justice, because, both, the judges and practitioners have acted on the basis that the only standard of professional conduct and integrity is the highest”.

          Thomson was confident as can be seen in the penultimate paragraph of his message where he expressed the source of particular pride to himself has been the way that the new generation of local judges have held high in burning even more brightly the torch handed to them by their predecessors.” (See [1966] 1 MLJ xxvii at xxviii)

          The generation of local judges who handled the burning torch were those who believed in rule of law and maintained highest standards in the administration of justice. They are Tun Syed Sheh, Tun Azmi, NC Sharma, Tan Sri SS Gill, Tan Sri Eusoffe Abdoolcader, Tan Sri Hashim Yeop Sani, Dato H. Ong, Dato H.S. Ong, Tun Suffian, and a host of others.

          Thus, we can see that the judiciary was maintaining its tradition of disallowing any outside interference; but, things changed as from 10th June, 1988 when Article 121 of the Federal Constitution was amended whereby the hitherto judicial power which had been vested in the judiciary was removed. Having removed the judicial power from the courts it inserted a new clause numbered (1A) which said that the High Court [Civil Courts] shall have no jurisdiction in respect of any matter within the jurisdiction of the Shariah courts.

          The late Tan Sri Professor Ahmad Ibrahim explained that the “important effect of the amendment is to avoid for the future any conflict between the decisions of the Shariah courts and the civil courts which had occurred in a number of cases.” He then went on to list out some decisions which had been inconsistent with Shariah law. There was not any suggestion that Shariah law should acquire a status superior to that of the civil courts nor was the latter’s jurisdiction and power challenged. Where the parties to a dispute are all Muslims no problem would arise, but where all the parties are not Muslims and the dispute goes to the core of their matrimonial relationship, that is to say that in the cases of conversion only Shariah court have jurisdiction ignores the crux of the problem relative to jurisdiction.

          However, things came to a point of complete confusion when children under the age of eighteen were converted to Islam at the instance of one parent. Article 12(4) of the Constitution used the word “parent” and judges began to interpret that word ignoring the interpretive principles clearly spelt out in the Constitution itself and the Interpretation Acts 1948 & 1967. There also rose a question which court has jurisdiction when the question of conversion is in issue involving children. If there had been proper compliance respecting simple human feelings at the conversion stage, there would have been little dispute as to which court, Shariah or otherwise, has jurisdiction; but when the threshold of the conversion itself is challenged due to serious flaws, for example, when the consent of both parents of the children under eighteen years old had not been obtained, then, the question should be properly dealt with in civil courts. This was necessary as one spouse’s conversion to Islam after going through a civil marriage and having offspring, it is only fair that the civil court should bring an end to the civil marriage and the issues of custody of his children of his marriage, their religious education and education in general are dealt with. These are humane considerations transcending religious beliefs.

          When the interpretive tools were jettisoned and judges went on a spree ignoring their constitutional oath things got out of hand and injustice became the home of the judiciary. Were the judges faithful to their constitutional oath or faithful to their religion? Moot question, and only the judges themselves will have to answer conscientiously.

          Now looking at the events as revealed by Datuk Dr Haji Hamid Sultan, and the earlier disclosure by Dato Syed Aidid when he was serving as a judge, there had been occasions when judges were not able to exercise their mind consistent with the facts of the case. The complaints are not restricted to conversion cases but cover a large spectrum of judicial bias or blunder. Needless to emphasize that the complaints are very serious and need to be addressed and it would not be proper to take a stand that the judiciary is vulnerable to outside interference. Such a feeling should not have arisen in the first place, and it had no place in a democracy in which judiciary holds a very important position.

          The judiciary must be independent and for it to be so it has to have judges, who are honest, incorruptible, dedicated to the constitutional oath they had taken. Short of it would be unacceptable. Judges should be independent and be free to express their conscientious judgments. There should not be any interference – whether it be financial, prospects of promotion or protection of tenure in office, or divine pleasure. Judges should be faithful to the justice of the case, not to their faith, the consideration of which are different and personal. Dispensation of justice is for public good, not for amelioration of the religious morality.
 

 K.Siladass