Raja Nazrin: We are now at a critical time in our nation’s history

Here is the full text of his speech delivered at the Conference of Malaysian Judges:

Address by Raja Nazrin Shah, Regent of Perak at the Conference of Malaysian Judges
9 APRIL 2008 at the J.W Marriott Hotel, Putrajaya

Assalamualaikum Warahmatullahi Wabarakatuh

Salam Sejahtera

Bismillahi Rahmani Rahim

Segala puji milik Allah, Tuhan semesta alam; Tuhan yang Maha Mengetahui lagi Maha Adil lagi Maha Saksama, lalu menyeru supaya para hambaNya melaksanakan keadilan dan sama sekali menjauhi kezaliman. Selawat dan salam ke atas Junjungan Besar, Nabi Muhammad Sallallahu Alaihi Wassalam, ahli keluarga dan para sahabat Baginda, serta para ulama dan para Tabiin; semoga memperoleh ihsan di hari kebangkitan.

Beta bersyukur ke hadrat Ilahi kerana dengan izin dari Nya juga, Beta dapat berangkat untuk menzahirkan titah di Persidangan Hakim-Hakim Malaysia pada pagi ini. Usaha yang dirintis oleh Ketua Hakim Negara menganjurkan Persidangan ini amatlah Beta hargai.

2. We are now at a critical time in our nation’s history, one where the institutions of state – indeed, the foundations of our democracy – which we have built up since Independence, are under scrutiny. The just concluded 12th General Elections has ushered in a host of changes. Among other things, it has introduced a greater degree of contestation in policy-making, legislation and administration than many would previously have thought possible. Some of these changes may be transient. Others could well be permanent. Whatever the case, the new political realities have proven to be and will continue to be challenging. They send a clear message that we cannot continue on a course of ‘business-as-usual’.

3. It goes without saying that recent revelations of improprieties in the judiciary have been extremely damaging, not least by eroding the public’s image of, and confidence in, the system of justice in this country. We must be committed to working through our current problems and to emerge the stronger and better for them. In order to do so, we must be prepared to deal with the facts as they are, and not as we would like them to be. In this respect, it is most encouraging that YAA Dato’ Abdul Hamid has himself set the tone for us in his appointment speech in December last year. In that speech, which has been described as "a breath of fresh air", he openly addressed concerns about the impartiality of judicial decisions, the appointment and promotion of judges, and their commitment to carrying out their work. He wisely pointed out that whether or not these perceptions were founded was immaterial. The mere fact that they exist is enough to do damage and warrant firm action.

4. What makes the current low regard for the judiciary especially regrettable is that it was once greatly admired. Judgments made in our courts used to be quoted across the Commonwealth. Our judges were held in high esteem for their wise and fair rulings. The late Tun Mohamed Suffian’s views about the first thirty years of the Malaysian judiciary are well known and often quoted:

"The reputation that [the Malaysian judiciary] enjoys of being able to decide without interference from the executive or the legislature, or indeed from anybody, contributes to confidence on the part of the members of the public generally, that should they get involved in any dispute with the executive or with each other, they can be sure of a fair and patient hearing and that their disputes will be determined impartially and honestly in accordance with law and justice."

5. Reputations can only be maintained if the high standards adopted are consistently adhered to. This has not always been the case. In the last two decades, judicial independence and integrity have eroded. The result is a lack of confidence in the judicial system and the complete disregard for the law by some quarters. These are dark stains on our honour and reputation and they have the potential to weaken if not destroy the nation.

6. Malaysia needs nothing short of what I would call a judicial renaissance. Without it, one of the three pillars that hold up this nation will remain in a significantly weakened state. Injustices will continue to perpetuate. Efforts at developing social cohesion and nation building will be severely compromised. A judicial renaissance is also necessary because it is one of the most important requirements for continued economic, scientific and technological progress.

7. What are the hallmarks of a judicial renaissance? I can do no better than to refer to my father, His Royal Highness Sultan Azlan Shah, whose views on the rule of law, the supremacy of the Federal Constitution, the independence of the judiciary, and the separation of powers are well known. His Royal Highness has written extensively on these subjects and he continues to do so with conviction and passion.

8. At its nucleus is respect for the rule of law, which is a universal ideal. One of my favourite quotes puts this in proper perspective:

"(The) right to be governed by laws and not by arbitrary officials is the most precious right of democracy—the right to reasonable, definite and proclaimed standards, which we as citizens can invoke against both malevolence and caprice."

This quote was taken not from an English or American judge. It was not said in a context that is alien to us. It was made in 1984 by Sultan Azlan Shah, former Lord President of the Federal Court, and to an audience made up primarily of Malaysians. The citizens that His Royal Highness was referring to are Malaysians of all creeds and colours.

9. It is worth repeating that the Federal Constitution is the highest law of the land. It is not only the law to which everyone is subject but also the authority from which power comes. Every judge, Member of Parliament, Cabinet minister, Prime Minister and, indeed, the Yang Di-Pertuan Agong himself, has taken a solemn oath to defend the Constitution. They are not supposed to serve the interests of a particular community alone. They are supposed to uphold the Constitution in its totality. The Constitution was specially crafted to cater to the pluralistic character of this country. This is not to say that it is a perfect document. It is not. It was forged out of the necessities of the time. Many of these, however, are still relevant today and Malaysians would do well to bear this in mind whenever they amend or interpret the Constitution.

10. Each time an administrative decision is taken that runs contrary to its provisions, the Constitution is in danger of being deemed irrelevant. This is why it is absolutely critical for judges to be sensitive to the spirit that underlies the Constitution. It bestows and protects the rights of all citizens and provides a basis for peace and harmony among them. Without it, we are in danger of heading down the path of sectarianism and victimisation. The courts must therefore be thoroughly objective and uncompromising on constitutional questions. In doing so, they are not only upholding justice but also strengthening the process of nation building and the integrity of the state.

11. Let me now turn to the second reason why we need a judicial renaissance. There is demand everywhere today for good governance. Unpacked, this means that the three pillars of government must not only be efficient but also highly responsive and accountable. Society and needs have become ever more complex. Citizens have become more educated. Borders are now more porous. Human capital and financial capital are mobile as never before. If good governance is not forthcoming in one country, then the best and brightest, and investment, will move to where it is forthcoming. The old model of large and rigid bureaucracies handing out government largesse has also become outdated. And governments can no longer just offer their citizens material wealth. The intangible benefits of development, including an absence of corruption, abuse and repression, and the protection and enlargement of individual rights and freedoms, are now equally important goods that citizens demand and which governments must deliver.

12. It would be wrong to think for one moment that Malaysians can achieve great things without a properly functioning judiciary. The most politically stable and economically successful countries are ones where the law matters a great deal and where the judiciary is highly respected. We must not be fooled into believing that to be monetarily rich, only practical expediency matters and that judicial integrity and independence do not. I say ‘monetarily rich’ and not ‘developed’ because there is a very big difference between the two. I do not believe it is possible to be developed without a highly respected judiciary.

Honourable judges:

13. The present climate presents us with an excellent opportunity to press on with much needed changes. We should not seek to just recapture past glories but must strive for greater achievements. Before we can start to soar in the skies, however, we must have a firm footing on the ground. Here, I am persuaded by the many voices that have argued that the most basic first step we must take is to ensure that judicial power is once again vested in the judiciary. The judiciary must be restored to the position that it had in the Constitution from the time of Merdeka until twenty years ago. Unless this is done, the doctrine of the separation of powers, which underscores our democracy, will remain effectively muted.

14. Until judicial power is reinvested in the judiciary – in much the same way that executive power is invested in the Yang di-Pertuan Agong and the Cabinet , and legislative power in Parliament – it will be difficult to convince anyone, not our citizens and not the world community, that we are a nation governed by the rule of law. Judicial review of administrative practices is an essential aspect of being a nation of laws. With the positive mindsets now in place, I am sure that the executive and legislature will continue to view the judiciary in a proper and balanced perspective. The judiciary, filled with men and women of great insight into the law will, I am confident, exercise its oversight to ensure that the exercise of power is not exceeded, that correct processes are adhered to and that outcomes are just.

15. The courts have unfettered powers to interpret the Constitution, to construe laws, and to declare any law or administrative action that is inconsistent with the Constitution to be void. We seem to have forgotten that the judiciary can be a powerful and constructive force in nation building. For laws, once enacted, are sterile unless they are properly interpreted. The courts have the responsibility for ensuring precisely this. Preserving and protecting the Constitution require judicial courage. Judges need to display the necessary courage when interpreting our supreme law, the Constitution.

16. Second, an important feature of a judicial renaissance is that only men and women of the highest integrity and intellect are elevated. The appointment of Tan Sri Malek as President of the Court of Appeal in 2004 was a step in the right direction and, as observed by the President of the Malaysian Bar Council, Ms Ambiga Sreenevasan, a "much needed shot in the arm for the judiciary". The many tributes bestowed at his untimely passing are proof of the high regard in which he was held. I know there are many men and women of integrity and intellect present here this morning who have dedicated their lives in upholding the sanctity of the law and in dispensing justice without fear or favour. Some of you have gone through difficult times. You have discharged your duties with great dignity and pride. For this I join the many others in saluting you for your dedication and commitment. You have done this nation proud. Your continued contribution and service gives great hope and impetus for the future of the judiciary.

17. Third, it may also be an opportune time to review the way judicial appointments and promotions are made. The many calls for a more transparent mechanism, one that is in line with other developed countries, should be given serious attention. There is merit in the suggestion for the establishment of a Judicial Commission that will make recommendations to the Prime Minister who, in turn, consults the Conference of Rulers. On the latter point, I am happy to note that in recent years, there has been a greater willingness on the part of the Prime Minister to consult the Conference of Rulers in a meaningful way. This is very much in keeping with the spirit of the Constitution and, I believe, leads to the building up of further confidence in the judiciary.

18. Fourth, it may also be the right time for the Federal Court to take a less restrictive approach in reviewing judicial decisions that manifestly involved miscarriage of justice. There is no denying that some decisions of the apex court in recent years have caused great concern to the legal profession, businesses and the public at large. We should not allow these decisions to remain in our annals. I am aware that the principle of finality of decisions is vital in any judicial system. Litigants are entitled to arrange their affairs in the sure knowledge that there is an end to their litigation upon decision of the final appellate court. But justice must be the overriding objective. The attainment of justice and the rectification of gross injustice is the raison d’etre of any civilised legal and judicial system. I am confident that in a judicial renaissance the proper balance between finality and justice will be maintained by His Majesty’s judges.

19. Fifth, it may also be the time to introduce mechanisms so as to facilitate the acquisition of knowledge by judges to meet the growing global challenges in specialised and new areas of the law such as Internet and Information Technology, Maritime and Arbitration, and in the more traditional subjects like Constitutional Law and Human Rights. The importance of continuing legal and judicial training cannot be over-emphasised.

20. Sixth the establishment of a commercial court with specially trained judges may be an area worth considering. As an example of how seriously this matters in today’s world, consider the case of Dubai. The civil and commercial court at the Dubai International Financial Centre has been in operation since 2004. Early this year, six new appointments of illustrious international judges were made to give it further standing and credibility. Sir Anthony Evans was selected to be the Chief Justice, alongside five others. Among them was Malaysia’s own Tan Sri Siti Norma. In addition to being the only Southeast Asian, she is also the first female judge in the United Arab Emirates. She is another clear example of Malaysia’s ability to produce judges of world-class ability and reputation.

21. Similarly, this year, the government of Qatar appointed Lord Woolf, former Chief Justice of England and Wales, as President of its Financial Centre’s civil and commercial court. At the same time, it selected another eminent Briton, William Blair QC, as Chairman of the Regulatory Tribunal. It further appointed eight other distinguished international jurists and lawyers to serve in both these institutions. Qatar’s rationale was simple: International financial and commercial organizations must be satisfied that the financial centre upholds the rule of law.

Honourable judges:

22. Jurists like yourselves are the real soul of any legal system. You are its true substance and the rest are mere decoration. We should never mistake form for substance. Some of the most tyrannical regimes have complex laws, batteries of judges and lawyers and palaces of justice, complete with grand regalia and ceremonies. These are all mere symbols meant to give a thin veneer of legitimacy to illegitimate and unjust practices. They say absolutely nothing about the substance and quality of the justice that is meted out. Laws can be made that institutionalise prejudice and biasness. Courts can make decisions that violate the very principle of natural justice.

23. Of course any problem can be ‘solved’ in the abstract. While we relentlessly pursue the ideal of justice, we must inoculate ourselves with heavy doses of realism. We must be aware that efforts to compromise legal principles and undermine judicial independence and authority are virtually universal. There is a perpetual contest between the political executive and the courts everywhere. There is constantly a threat of business interests tipping the scales of justice in their favour. Our efforts cannot therefore be partial and half-hearted. They cannot last mere months or even a handful of years. No matter how great the legal institutions we build, once we stop maintaining them, the surrounding jungle of abuse will start to reclaim them.

24. The rule of law, the independence of the judiciary, and the separation of powers are features of our judicial system that we must constantly and tirelessly struggle to uphold. Even in England, the birthplace of the law that Commonwealth countries practice, measures are still being undertaken after more than nine hundred years to improve the autonomy, competence and transparency of the judiciary. We cannot be faulted for not having a perfect legal system for no country can make that claim. We can, however, be faulted for want of trying. The judicial renaissance that is emerging must therefore not be allowed to roll back. We must constantly fuel the engines of this renaissance.

25. Change is never easy. Resistance must always be assumed. The inertia of the status quo is very strong and this is especially true when the situation is serious and the changes required are huge. There will be the ever-present temptation to undertake just incremental and cosmetic modifications. We need to recognise that these are not sufficient for the judicial revitalisation and renewal that this country needs and deserves.

26. I mentioned at the outset that as recent events continue to unfold, the degree of political contestation in this country will increase. Some will be for the better and some, where it leads to conflict, will be for the worse. Whatever the case, this is the system that we chose for ourselves five decades ago and which has proven and performed with distinction in the past. In the current environment, the opinion and decisions of men and women of reason, wisdom and balance in all spheres of life will be in even greater demand than before. This is especially true of the courts of law.

27. If the judiciary is filled with the highest calibre of men and women that this nation has to offer, not only in terms of ability but also values, there is nothing to fear. We must never fear truth, knowledge and wisdom. We should always fear their opposites. I therefore urge you to press on. May the judicial renaissance grow and flourish under your careful hands and watchful eyes.

28. Semoga Persidangan ini dapat berlangsung dalam suasana berterus-terang berlandaskan semangat mahu membina imej dan perkhidmatan kehakiman yang berintegriti tinggi, agar para hakim dan mahkamah di Negara ini mendapat kepercayaan rakyat jelata serta dihormati diperingkat antarabangsa.

Wabillahi taufik walhidayah

Wassalamualaikum Warahmatullahi Wabarakatuh.