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. 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 immune 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 actions 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, in mainstream mass media and 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 little girl 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 vilification 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.

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Posted on 1 December 2009. You can follow any responses to this entry through the RSS 2.0.

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