LoyarBurok strongly believes that it is unhealthy to force lawyers to wait too long for the hearing or mentions simply because it may at some point force them to think, or worse think critically. Fahri Azzat who was recently in the Penang High Court for a winding up hearing was afflicted with both these sorry diseases after approximately 2 1/2 hours of sitting down and listening to other cases being disposed of. You may read the thoughts the wait provoked here.
More often than not, a litigation lawyer in Malaysia spends half his life waiting for something that takes five minutes to do. There are two forms of waiting in the courts.
The first is the wait in the court. You are waiting for your case to be called up. That means you wait and are forced to listen to those cases called before yours. That you are forced to do so makes it a tedious process. That it is tedious makes it tiring. This explains why lawyers can go to court all morning, just get a silly mention date and yet come back quite knackered. Waiting is tiring.
The second is the wait in the canteen. You have been told your case will be called up at an appointed time. This means you know exactly how long you have and plan how long you will spend in the canteen eating, having a serious legal discussion with your brothers and sisters -at-law or how many cigarettes you can smoke. This is infinitely preferable to waiting in court for obvious reasons – you can eat, drink, smoke, discuss our respective cases noisily and with all the necessary exaggerations, read the newspapers or book and even cross your legs with impunity. Strangely, waiting in the canteen is never tiring. In fact, one often feels quite rejuvenated after a long and social bout in the canteen, with perhaps a touch of guilt upon leaving it.
I could discuss the wait in the corridors of justice (i.e. the court hallways), but I see it only a species of the second type of wait.
Last week when I was in Penang for a winding up hearing, I was waiting in court. After exhausting all my reading materials – my files, my legal journals, my newspaper and my book – and rapidly approaching the province of boredom, I spied two portraits hung on the wall directly above the Judge’s chair and another two portraits that flanked those two portraits. All of them were situated high above His Lordship’s chair. Those portraits that were directly above him were the photographed portraits of the present Yang diPertuan Agong Tuanku Mizan Zainal Abidin Ibni Al-Marhum Sultan Mahmud Al-Muktafi Billah Shah on the left and the Permaisuri Agong Tuanku Nur Zahirah on the right. The other two portraits that flanked them were the portraits of the present Governer of Penang, Tun Dato’ Seri Haji Abdul Rahman bin Haji Abbas, and his wife, Toh Puan Dato’ Seri Utama Hajah Majimor binti Sharif.
Actually, I’ve noticed similar sort of portraits in some of the courts (and government departments) around our country but never actually thought about its significance. Until that fateful day that is.
The portraits are invariably of the Agong and the Permaisuri in the centre, followed by the Sultan of the State (and his wife) flanking them and the Prime/Chief Minister of the State (and his wife) flanking all of them. Occasionally one is left out. I for one am puzzled why they do that. I don’t think it is the practise of the Commonwealth courts to hang the Heads of State in the court room or premises. I sometimes wonder whether there is a circular in the government department requiring the pictures to be hung that way. But I don’t think so because it varies quite a lot from place to place – sometimes its 3 pairs of pictures, sometimes 2 – sometimes Agong, sometimes PM, sometimes Chief Minister, etc.
Now when it comes to the courts only, I think that it is improper to hang any picture of the Menteri Besar or Chief Minister of the State in any court room wall or any other part of the court premises.Why?
Firstly, the Rule of Law. The Chief Minister and the Governor represents the executive at the State level. The Judiciary is one of the three separate and distinct organs of State in the domestic context. Justice must be done and seen to be done. That the latter is as important as the former is sometimes forgotten. And for that to be done, the Judiciary and all its machinery cannot be seen to be holding the Chief Minister/Governor in high esteem so visibly. What is a litigant to think when he goes against the State and sees the Chief Minister/Governer’s pictures hanging in the hallway or above the judicial officer or in the offices? What is he going to think if he loses? So this applies to the Prime Minister portraits as well.
I also think that it is improper to hang the respective State Sultan’s portraits (and their wives) similarly.
To understand my objection, let us first consider Article 3 of the Federal Constitution:
(2) In every State other than States not having a Ruler the position of the Ruler as the Head of the religion of Islam in his State in the manner and to the extent acknowledged and declared by the Constitution of that State, and, subject to that Constitution, all rights, privileges, prerogatives and powers enjoyed by him as Head of that religion, are unaffected and unimpaired; but in any acts, observances of ceremonies with respect to which the Conference of Rulers has agreed that they should extend to the Federation as a whole each of the other Rulers shall in his capacity of Head of the religion of Islam authorise the Yang di-Pertuan Agong to represent him.
Then the 8th Schedule of the Federal Constitution (8SFC). Section 1(2)(a) essentially reads as follows:
The Ruler may act in his discretion in the performance of the following functions (in addition to those in the performance of which he may act in his discretion under the Federal Constitution) that is to say:
… (d) any function as Head of the religion of Islam or relating to the custom of the Malays.
And finally the reality is that the Sultans are often the Head of Religion i.e. Islam in the State. For example, see section 48 of the Laws of the Constitution of Selangor, 1959 and section 5(2) of the Constitution of the State of Penang where since there is no Sultanate there, the Agong is the Head of Religion in that State. That is the case for Malacca as well, since they were the former Straits Settlements.
I can understand the primacy of Islam in this country – this is provided for in Article 3(1) of the Constitution. However, must this primacy also be made manifest on the walls of the administration of justice? Let us not forget the quality of justice that our Judiciary is supposed to dispense with – secular justice – as expressed in Che Omar bin Che Soh v Public Prosecutor  2 MLJ 55. You can find the quotation I rely on in that case. Click the link to take you there. I will however just quote the last bit of Tun Salleh Abbas’ judgment that I quoted:
We are particularly impressed in view of the fact that they are not Muslim. However, we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law. Perhaps that argument should be addressed at other forums or at seminars and perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.
Where Justice is concerned, impressions of Justice are as important as Justice itself and finely, very delicately balanced. Therefore hanging the Sultan’s portrait gives the wrong impression of the justice that is supposed to be applied. Why should the portrait of the Head of Religion i.e. Islam (or of any other religion for that matter) be hung up in what I sometimes feel is close to veneration (why else do you hang them up so high up?), in a court room applying secular law? What kind of impression does it give to a non-Muslim who comes to court seeking justice against a Muslim to see a symbol of Justice decorating the wall? What are litigants like Moorthy’s family, Subashini, Lina Joy, Latifah Md. Zain, etc. all of whom have these “inter-religious” cases and are often told by the civil courts to go seek justice in the Syariah courts supposed to think? How would the Muslim feel if say the tables were turned, they went into a court which had a tastefully prominent crucifix at the back of the Judge’s chair?
The absence of any portraits on the walls of justice is a mark of the proper application and process of secular law.
Though the same objection can be raised against the Yang diPertuan Agong’s and Raja Permaisuri Agong’s portraits an argument can be put forward that since His Highness is the titular Head of State, it accords with the use of secular law. However, as I pointed out just now, firstly, no other (or it is rare for) Commonwealth nation has such a practise. Secondly, it cannot be ignored that his Highness is the brightest symbol of Islam in this country since his Highness is not just Head of Islam for Penang, Malacca, Sabah and Sarawak but for the Wilayah Persekutuan as well (see Article 3(3) and (5) of the Federal Constitution). So this would again attract the same objections as applies to the Sultans. Since the law often encourages prudent and circumspect sort of behaviour, any erring should be on the side of caution, so I would opine also that the Yang diPertuan Agong’s and Raja Permaisuri Agong’s portraits should not be hung up either.
Now aside from the legalities, to me, that the portraits are often hung up high up the wall feels a little too close to comfort to venerating the persons in those portraits.