By Malik Imtiaz

MAY 12 – It was to be expected. As news of the decision of the High Court in the matter of Nizar v Zambry filtered out, many were quick to give thanks and express encouragement for what they perceived as a courageous judgment.

Some even expressed the hope that the judiciary was recovering its independence.

The judgment did, after all, run counter to the entrenched positions of the Prime Minister, who was the Perak Umno liaison chief at the time power was seized in the state, the Barisan Nasional leadership and the Federal Government they have constituted, and His Royal Highness the Sultan of Perak.

As has been the case when other seemingly “courageous” or “independent” judgments were handed down by the courts had led to such expressions of encouragement, there were those who made the point that the judiciary was praised only when it gave decisions against Umno or the Barisan, and the governments they constitute.

They ask why it is the courts are “kangaroo courts” when they decide in favour of the Barisan but not when they hand down judgments against it.

In so asking, they suggest that criticism against the Judiciary and the Federal Government in this regard is unfair and self-serving as the judicial process is capable of producing judgments that run either way. To them, the good must be taken with the bad.

This line of argument deserves further consideration. In order to more fully address it, context must be appreciated and in this, there are two aspects that must be emphasized.

Firstly, our public and private lives are normalized by rules of conduct put in place by law created for that purpose.

Legislature’s aim in this regard is to facilitate a harmonious society. The laws of contract, for example, codify principles that we innately understand: there must be no misrepresentation in the formation of a contract, contracts must be honoured and so on.

Similarly, criminal laws entrench the principle that each of us should be allowed to live our lives ‘freely’ without interference from others.

These and other laws assist in regulating that principle through, amongst other things, the protection of fundamental liberties, physical integrity, security of possessions, and ultimately the integrity of the system by which we live.

Laws have no impact unless they are enforced. It is at this juncture that the objective theory of Legislature transforms into the practical reality of action and takes the more subjective human dimension.

The decision of any enforcer of the law, be it an agency or an individual, will ultimately be shaped by the reason of one or several individuals. For instance, whether the MACC chooses to take action against Khir Toyo is a matter that is determined by the top man at the MACC.

It is a given that human error will occur. It is for this reason that the courts are vested with the power to scrutinize Executive action.

They stand between the citizen and arbitrary or capricious Executive action. In matters of private law, such as in the area of contract law or commercial law, judges takes on the role of ensuring normative standards are applied equally across the board in the absence of regulators.

Seen in this way, the courts, and the judges who run them, represent the ideal. Their conduct must be beyond reproach. This leads me into my second point.

It is indisputable that the Judiciary was attacked in 1988 and its independence severely undermined through a constitutional amendment that yoked it to Parliament.

A questionable system of appointments and promotions that was made the subject of a damning Royal Commission of Enquiry report has further damaged the institution, as have numerous controversies and scandals, some of which have involved highly questionable decisions that have favoured the interests of the Barisan directly or indirectly.

The public viewpoint as to the state of the Judiciary cannot be dismissed for being uninformed or lacking in sophistication. In cases involving more current dimensions of our lives, a skewed decision of the courts often proclaims itself as such; it offends our moral sense.

A person gets cheated and goes to court but the court decides in favour of the cheater, twisting the law to arrive at that outcome.

A mother gets unjustly deprived of the custody of her children. The starkness of the wrongdoing on the part of the court is basis enough for serious concern about whether the courts are going to do the right thing or not, or whether it is even capable of doing so.

These concerns are fuelled by a failure on the part of the Federal Government to implement recommended reform measures. It appears that a lack of political will and a desire for continued Executive control over the Judiciary stands in the way.

The much trumpeted Judicial Appointments Commission has not diluted in any meaningful manner the control of the Prime Minister over appointments.

The state of play is such that the average Malaysian has come to expect that cases of public interest involving the Barisan or the governments that it forms will be decided in its favour.

This is the default position, a perception that the Barisan has fostered by its inaction or seeming unwillingness to act meaningfully in the face of consistent complaints about the state of the judiciary over the last two decades or so.

This impression has also been nurtured by the way in which the Barisan has allowed constitutional bodies and federal agencies to conduct themselves in an apparently partisan manner, a point brought home in the course of the Perak affair.

For all of this can Malaysians be blamed when they still take cases to court despite their criticism? No, for they have no choice and they have to hope beyond hope.

There have been judges, though far and few between, who have displayed the moral courage so crucial to a just decision in hard cases.

They however are the exception to the rule and their principled stand cannot be translated into the standard of the entire judiciary.

I appreciate that this may seem harsh for there may be other judges who do not lend themselves to any perversion of the law.

Their silence or inaction will however be regrettably construed against them by Malaysians who have grown weary and are no longer tolerant of morally ambiguous positioning on the part of our institutions. For them, justice is neither a game nor a gamble.

Can Malaysians be faulted for celebrating a decision that they never thought possible in their wildest dreams, or for associating such decisions with an independent judge? I think not. It is an indisputable truth that decisions in politically sensitive cases, erroneous or otherwise, rarely favour the other side where the Barisan is involved.

Their rejoicing does not make the reality any different, a point sadly underscored by quiet speculation on the part of some that the decision of the High Court yesterday may have been orchestrated as part of a political strategy.

I will concede that certain quarters have tended to ridicule judgments of the courts solely for these judgments having ruled one way rather than the other. For them, the expected outcome defines everything.

If it is not disappointing then it is presumed that the process of the law was not compromised. However, if the outcome is disappointing then it is a given that the process was subverted. This cannot be the right way to look at things as, whatever the case, the process of the law is crucial.

As for the decision itself, I will refrain from too much analysis as the Barisan has appealed the matter. I will however say that given the choices the judge had, that is to decide whether a vote of confidence was essential or whether extraneous circumstances pointing to a lack of confidence were sufficient for His Highness to appoint a new Prime Minister, the judge made the more prudent and practical decision all things considered.

The state constitution does not vest His Highness the Sultan with the power to dismiss a Menteri Besar and His Highness was only required to form a view as to whether the incumbent Menteri Besar had lost the confidence of the majority.

The conclusion of the judge that a vote of confidence is required is one that allows for the kind of certainty that Tun Mahathir advocates and which, given the lessons learnt over the last three months, reduces the risk of destabilizing the state.

It also guards against the institution of the Sultanate being dragged into a political fracas, a situation exemplified by the appalling events in the State Assembly last Thursday.

Malik Imtiaz Sarwar is a lawyer and the current President of the National Human Rights Society (HAKAM). His blog, Disquiet, is widely read.