Malaysia, like many aspiring nations, relies heavily on the trust and confidence shown by the business community and investors as it grows its economy and stays competitive. This enables the country to constantly attract high-quality investments necessary for job and wealth creation.
In the process, assuring businesses, investors and the public that they will be protected by a capable judicial system in the event that trust and confidence is broken is paramount. The judiciary, regarded as an institution with integrity, independence and impartiality, is a barometer of confidence as far as a nation’s trustworthiness is concerned. Therefore, it is correct to say that stakeholders (including judges) owe a moral duty, at the very least, to safeguard the economic well-being of the country and against any perception intimating that the judiciary is incapable of protecting the rule of law when called upon.
It was rather disturbing to read about allegations of judicial misconduct made by a sitting court of appeal judge just over two weeks ago. The allegations, made in a widely circulated affidavit, claims that certain judges had breached their oath of office and were unlawfully interfering in cases that were pending before the courts. Unfortunately, the affidavit does not provide adequate information of judicial misconduct to make an informed opinion. Additional particulars, according to the said judge, would only be provided once a Royal Commission of Inquiry (RCI) has been formed.
The lack of details relating to judicial misconduct in this instance is disconcerting as it could fuel unnecessary speculation on the judiciary. This may cause the judiciary to be undermined as litigants will speculate how widespread the judicial misconduct is, and, in the case of unsuccessful litigants, whether they were victims of judicial misconduct or interference. Sweeping allegations will certainly stain the integrity and independence of the honest and able men and women currently sitting as judges.
I am not, by any stretch of the imagination, suggesting that the said judge’s exposé was erroneous. It is his/her prerogative to raise allegations of misconduct and rightly so, these allegations must be subject to full investigation to ensure that they are never repeated.
But I wonder if there was a less sensational manner in which these allegations regarding judicial misconduct could have been raised? Adopting a scorched earth policy where the misconduct in the judiciary is perceived to be widespread until proven otherwise does not provide confidence to parties seeking judicial assistance in helping to protect their rights. Making allegations in this manner, no matter how well intentioned, will result in an unfavourable perception of the judiciary.
French playwright Honore Balzac once wrote that “to distrust the judiciary marks the beginning of the end of society”. Public confidence in the administration of justice must be carefully handled so that belief in the rule of law as a determinant of economic and social development does not suffer.
It may be difficult to define how public confidence is measured but to uphold it is to ensure that three core values of judicial conduct — independence, impartiality, and integrity are maintained. Any broad and sweeping allegations of misconduct must always be considered against the impact they will have on the entire judicial system and the economic well-being of the nation.
Public confidence demands that the judiciary must be able to withstand and repel allegations of misconduct. It is not an easy feat, but for this to materialise, three things must converge: Firstly, the reputation of the judiciary cannot be undermined any further. Secondly, judges must be appointed and promoted based on well-defined criteria of merit and ability and thirdly, Malaysia’s judiciary must be reformed to ensure it is on a par with top judicial destinations worldwide.
A judiciary that is undermined is bad for business. Investors will most certainly look to other jurisdictions and avenues to enforce their contracts if the country’s judiciary is not capable of protecting litigants. It is therefore vital that the government and all stakeholders in the administration of justice work very quickly to arrest this perception by restoring its image and boosting public confidence among businesses and investors. This move is equally critical to ensure that the reputations of all honest and hardworking judges are not tarnished and ridiculed any further.
The appointments and promotion of judges must be improved. It is vital to have in place well-defined and transparent selection process focusing on merit, judicial temperament and integrity. Judicial reform must entrench the doctrine of separation of powers and put an end to any external interference. In essence, we need a judiciary whose judges remain faithful to their constitutional oath of office and are publicly well regarded.
Reforming the administration of justice must include input from all stakeholders at all times. These include Bar leaders from the peninsula, Sabah and Sarawak, working groups like the Institutional Reforms Committee and within the judiciary itself. While it is comforting to see that the current administration has taken positive steps to achieve this, a more holistic approach is necessary to insulate it from future allegations of misconduct. Making judicial reform an immediate priority will stand the country’s judicial design in good stead in the years to come.
Finally, public confidence in the judiciary starts with judges themselves doing all things necessary to protect it from unnecessary speculation. Judges must also ensure that their judgments constantly champion the rule of law. Upholding the rule of law is the best advertisement Malaysia can offer the world to show that it is truly open for business.
H R Dipendra is an advocate and solicitor