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Monday, November 30, 2009

Justice is an illusion

It's really tough being a Judge. Really, I think it's a thankless job. A Judge can never do any right.

I think it was in 1996 that a soon-to-be-really-famous High Court Judge politely asked me and my opponent whether we would mind to remain in his chambers for some small talk after we had finished our hearing before him. As I had no other case to do, I obliged the Judge. So did my opponent.

He asked both of us how long we had been practising. I told him I had practised for about 10 years. He smiled and said that I could be a Judge soon (as the Federal Constitution states that a person who has been a lawyer for 10 years or more could be a Judge).

I was wondering what was in the Judge's mind. He looked tired. Something was bothering him. He looked and behaved almost like he was resigned to the hopelessness of it all. He was looking at both me and my opponent intently. There was something that he wanted to say but couldn't.

Finally he asked, "what do you think of justice?" My opponent was senior to me and so he answered first. I can't really remember what my opponent said. After he had finished saying his piece, the Judge looked at me. "What do you think?" he asked me.

I looked at him and without hesitation I said, "Judge, I don't believe in justice!" He was petrified! I know he was going to ask why the hell I was practising law then. Before he did so, I continued, "Judge, human beings are incapable of dispensing justice. Only God can do so. Justice is subjective. The winning party will say they have got justice. The losing party will never say so."

The Judge was unimpressed. He looked deep in thought. He was clearly ruffled by what I had just said. Finally, he said, "could you then tell me what me and all my brother Judges have been doing all these while. And what you and your learned friends have been doing appearing before us?"

"Judge, I am a law practitioner, not a justice practitioner. You and your brother Judges have been dispensing the law all these while. You have been applying the law. In modern societies like ours, adherence with and applying the law brings the connotation that justice is being done. That's it. Justice is a connotation. It is not real. It is a corollary of the application of the law by the Court or Judge. The real justice will only be seen when we all die."

"The law is not always just. Take the land acquisition law for example. How just is a law which permits the Government to force a landowner to surrender his land to the Government? But if the law is applied and the Court imposes a suitable compensation to be paid to the landowner, the perception is that justice is done, but is it really done?" I postulated.

"My God", the Judge said. My opponent was cringing in his seat. "I have never thought about it that way,thank you for telling me," the Judge said, his eyes brightened up a bit.

We continued to chat for a bit after that. I was telling him that jurisprudentially, I belonged to the positivist school of jurisprudence. I believe that the law and morality should be separated. After about 20 minutes, we excused ourselves. As we were going out from his chambers, the Judge said, "have a good life both of you."

We thanked him. That was the last time I appeared before that particular Judge. Two or three months later, he rocked the Judiciary with his resignation. The reason for his resignation rocked the whole Malaysia and even the world. But life goes on in this country of ours. Nothing ever changed. People like this Judge just disappear from the map and from our memory.

I last met him in an event in Subang Jaya some months ago. He was still his jovial friendly self. And he looked much happier. May God bless him with a long and healthy life as well as peace of mind.

Fast forward to the present time.

When Justice Ariff Yusof (then he was a Judicial Commissioner) dismissed Gobind Singh Deo's suit against the speaker of the Parliament for suspending him (Gobind), many articles were written and posted on the net about it. Justice Ariff was questioned why he did not follow the Federal Court's decision in one of the Perak Menteri Besar constitutional circus. The Federal Court had in one of those cases held that the Court could review the decision of a Speaker.

Under the law, a decision of a higher court is binding on a lower court. Thus the decision of the Federal Court (which is the highest court in the land) would be binding on the High Court (where Justice Ariff sits).

In dismissing Gobind's suit against the Speaker of Parliament, Justice Ariff applied the clear wording of the law as stated in the Federal Constitution, which says:

"The validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court."

Justice Ariff opined that while the Federal Court recognised the power of the Court to question whether an act of the Legislative Assembly has any legal basis or otherwise, any act of the Assembly which is supported by any legal basis would be immuned from such scrutiny.

In all the articles written about his decision on the net, Justice Ariff was vilified by all and sundry, especially by the supporters of DAP or the Pakatan Rakyat. Some even called him stupid. Some others even questioned his impartiality.

Last week, in yet another high profile case, Justice Ariff held that MACC did not have the power to interrogate witnesses or potential witnesses after office hours. He then ruled that MACC's action in interrogating a potential witness at night was illegal and ordered compensation to be assessed and paid to the victim.

In doing so, Justice Ariff was of course interpreting the law as it is stated in the MACC Act. That Act says any person served with an order shall attend for examination and shall continue to do so "from day to day until the examination is completed" (section 30 (3) (a) of the MACC Act.

As the words "day to day" was not defined by the Act, Justice Ariff applied the literal meaning to the word and came to the conclusion that MACC does not have the right to force any person to give statement at night. Justice Ariff applied the law as he understands it. He applied the law as it is worded.

Many articles were also written about this decision, whether in the mainstream mass media or the net. The IGP made some statement which effectively ridiculed Justice Ariff's decision. The chief of MACC, while saying that MACC would abide by the ruling, was also sulking and whining like some small girls whose lollipop has been taken away.

This time the Pakatan Rakyat supporters hailed Justice Ariff as a hero of sorts. He was seen as a learned Judge who protects fundamental liberties. All the vilifications he received just after Gobind's case were quickly forgotten.

But, as I have said at the start of this article, there is no justice in this world. There is always one side which would say justice has not been served. My fellow blogger Rocky posted an article on his blog about Justice Ariff's decision. He somewhat said that Justice Ariff's decision is weird. Exactly, this is how he puts it:

"Well, I agree with blogger Syed Akbar Ali that in this case, the Court has acted really weird."

Apparently, the Scotland Yard, ICAC and Interpol could take statements at night. So, why not MACC? I must confess I do not know whether that is right. And I do not know what the law governing those bodies provide in terms of taking witness statements. I would also refrain from analysing whether MACC is comparable to all those bodies in terms of performance and ethics.

Whatever it is, Justice Ariff's decision will be appealed by the Attorney General. So, let's not go into the merit of it for the time being.

The point is the comments made under Rocky's article. This time, Justice Ariff is again vilified, especially by commentators who are obviously pro-government. One of the commentators noted that Justice Ariff is a former PAS legal advisor. He then concluded that "something is not right." Basically he was insinuating that Justice Ariff was being dishonest.

Another commentator asked whether Justice Ariff had any problem with the MACC. Perhaps the most unfair comment was this:

"Param Tak Suara said...

So how much did Karpal pay the judge?"

A Judge's good work will only last and be appreciated until his next decision which is unfavourable to the relevant party. That is obvious. Many of us have somewhat forgotten how Justice Ariff had conducted himself in accordance with the best tradition of the Judiciary. When the Nizar v Zambry case was fixed for hearing before Justice Ariff, he quickly made it known to all parties that he was a PAS legal advisor. He then invited arguments on whether he should disqualify himself. He later disqualified himself from hearing that case after listening to all parties interested.

That was how conscientious Justice Ariff was.

In Gobind's case he ruled against Gobind. What did that say about Justice Ariff's impartiality, considering that he was a PAS advisor? And now in the MACC case, he applied the law as he understands it. In doing that, he held against the MACC, and consequently the government.

To half of the world, he dispensed justice in all those cases. To the other half, he was a dishonest and partial Judge.

I think I have made my point.


Anonymous said...

Yes, i still remember those 3 incidences you quote abt Justice Ariff. I am of the opinion that Justice Ariff has shown honesty and transparency by making known that he was formerly an advisor to PAS.

Just like a referee in a football game, the loser's supporters will blame him for being bias although he tried his best ability to be a good referee.

People likes to blame someone without looking at the merits.

Anonymous said...

I think the perception of non-independence and doubt of integrity of the judiciary got to be blamed on Mahathir.

All the doubt happened after the judiciary was attacked by Mahathir back in 1988 and the systematic dismantling of the institutions meant for check and balance during his premiership.

Hean said...

While I am strictly against the argument that morality and justice is derived from God or any Holy book (I should make it known that I am an agnostic atheist), I do in fact see the lure of accepting it. It is indeed much easier to just blindly follow, rather than exhausting our intellectual capacity to think an issue through.

Justice, I like to believe, is not relative, but reasoning do tell us otherwise. One of the perks of being human is that we can analyse an issue from our opponent's point of view, but it is very hard to convince ourself to be impartial.

Borrowing Plato's Allegory of the Cave, I do wish that Justice can be the same as Truth, but I admit, the comparison is not satisfying. I need time to think it through, and perhaps, I will have an answer that is not so bleak...

Anonymous said...

en art harun

hope that you can compile all the articles that you wrote and turn it into book, i would love to have it


donplaypuks® said...

No, I can't agree with you that justice is an illusion. If you wish to bring God into this matter, then Justice is there as an important concept because God deemed it necessary that humans get a handle on it!

It may be elusive under our Govt of the last 52 years, but it is a serious matter.

Justice is above law; it is about what is fair and that's where objectivity and subjectivity come in.

Lawyers undergo years of education, training and service before they are elevated to the rank of judges. And if they make silly decisions or let their political leanings and money cloud their judgement or get coerced by their superiors or Govt or politicians, that is the failing of individuals, not Justice.

As in mosr other matters, the failings in our Judiciary lies in the compromises made in our education system and in not embracing fully Meritocracy. That's why we have dithering, incompetent and corrupt judges who are inconsistent in their decision making.

Ever wonder why Singapore is increasingly internationally preferred as a centre for Arbitration hearings?

We are all of 1 race, the Human Race

KS Cheah said...

Hi Art,

From "justice" comes "justification" or is it the other way around?

Agree with you on Justice Ariff/Gobind:


Would you agree justice on certain Justices of the Malaysian judiciary is a dish being served cold just like revenge? I read that three judges are being "promoted" for their deeds:


Raison D'etre said...

Always a pleasure to read your arguments, long winded they might be. (A lawyerly trait, perhaps?)

Justice is way too abstract a notion for me to comprehend, but I do agree on the part about following the rules as they are set out to be. The rule of law and all that shit lo..

This is also a minefield.

What if its a law that is unjust? How would a judge be guided then? The law or his conscience?

One could do a Denning and just work their way around the perimeters allowed by the law, I supposed.

But if the law is clear cut, a judge is clearly a "Bad Judge" should he or she choose to go against it.

No two ways about this, kan?

Anonymous said...

Sdr Art,

To hide justice behind stated laws is kind off lame. Although I agree that 'the law' and what is just are two separate things, the former however are derived with the intent of to apply the later. It cannot be totally independent and non related.

The BIG problem sometimes is the law is open to personal interpretation, which in this case is the judge's. He will attempt to interpret the law to his best unbiased ability BUT that does not make it right or not weird.

Whatever that you have mooted is fine and dandy between 'the law' and what is just. BUT it does not answer what basic common sense that Rocky or Syed have argued. The consequence of the decision is what makes the whole thing looked rather quirky.

Anonymous said...

why didnt Gobind appeal? coz he knwos the judge made the right decision that it has no right to butt into assembly proceedings. well, until its is before a court of UMNO judges who spew profanities "IRRELEVANT IRRELEVANT IRRELEVANT". God will judge him, not to worry.

c-p-k said...

The Malaysian court's ruling that MACC is not allowed to interrogate witnesses after office hours is good for a laugh.

Down south we have something similar - the famous "200 meter ruling" of a few years ago. Check it out. It's also good for a laugh. Or two.

marena321 said...

yeah I think so.While I am strictly against the argument that morality and justice is derived from God or any Holy book (I should make it known that I am an agnostic atheist),It is indeed much easier to just blindly follow, rather than exhausting our intellectual capacity to think an issue through."
Thanks for your nice words. I believe it so.
Best Regards
art school
how to art
art workshop

marena321 said...

yeah I think so.While I am strictly against the argument that morality and justice is derived from God or any Holy book (I should make it known that I am an agnostic atheist),It is indeed much easier to just blindly follow, rather than exhausting our intellectual capacity to think an issue through."
Thanks for your nice words. I believe it so.
Best Regards
art school
how to art
art workshop