Judges constantly face a dilemma when judging. The matter is compounded when judging high-profile or 'political cases'.

Judges are not, in o­ne political sense, directly accountable to the public as they are 'unelected'. Nevertheless, when the public does evaluate the court's decisions (almost always in high-profile cases), it is political factors or agreement with the substance of these decisions that influence the public's regard, support or opposition.

Justice Felix Frankfurter in his opinion in Dennis v United States (1951) argued that "history teaches that the independence of the judiciary is jeopardised when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures".

Malaysian judges and the legal fraternity (and law students) see the good sense of this argument. Hence you will find our judges in constitutional adjudication, including civil liberty cases, claiming adherence to the "interpretive role" and that the unsatisfied litigant should take the matter to the "ballot box".

Elections, that hallowed institution that signals "real democracy" according to many of our politicians, may not be the simple answer. At the last by-election for the parliamentary seat in Gaya, Sabah last October, the voter turnout stood at 44.38 percent. The returned candidate did not in real terms win at a majority.

Decay of electoral democracy

Studies elsewhere in the UK, US and Australia show that poor voter turnout affects the legitimacy of those returned to be representatives of the people. Low voter turnout could be construed as a lack of confidence in the electoral process to bring about a truly elected government.

Thus you will find that in some countries in the South, there is occasionally a move to boycott the elections. This reflects a protest that elections are in fact undemocratic. This is the public perception as for example in a case where the playing field weighs in favour of the ruling party, through laws passed by a legislature effectively in the hands of the executive (ruling party).

Writings suggest low voter turnout as indicative of a decay of electoral democracy. Elections have become less decisive as mechanisms for resolving conflicts and constituting governments.

Even if the majority of the rakyat were able to transmit preferences through political parties in some meaningful way, this does not mean their effective translation into government policy. As an example, the structure and decision-making processes in Parliament (as reported effectively by media), shows the capacity or otherwise, of parliamentarians (as a whole) to act as a national policy-maker.

Political scientists think that the proper response for the courts (which has to assume its rightful constitutional role), is to reconcile judicial review or decision-making with democratic values. Some scholars view this as "truth in judging". The court is asked to defend its value and policy choices o­n merits rather than emphasising consistency with legal text and precedent per se.

Justice in Jeopardy 2000

There is little or none that I am aware of, of public opinion research done locally o­n our judiciary.

In 2000, a mission under the auspices of several international and pro-active associations of lawyers did a fact-finding report called ' Justice in Jeopardy: Malaysia 2000' . Several cases, including the 1998 Lim Guan Eng case (under the Sedition Act and the Printing Presses and Publications Act) and the Anwar Ibrahim trial (1999 corruption case) were considered in the report.

The report noted that "in cases which are considered of political or economic importance to the executive, there are serious concerns that the judiciary is not independent, either because it is leaned o­n directly or indirectly by the government or because it knows what the government wants and is simply too cowed in the light of past experiences. This perception is also held by members of the general public."

Of the Anwar Ibrahim trial in 1999, the report noted that the "sentences passed are widely seen as harsh".

The report recommends among others that, "the judiciary does all in its power, in the wider interests of justice, to counter the harshness of repressive legislation and overbearing actions o­n the part of the executive. That is the role of the judiciary when faced with repression no matter where it comes from."

In 2001, election judge Muhammad Kamil Awang recorded in his judgment in what is known as the Likas case, that, "The government must act honestly and responsibly.... In my view, it is an insult to o­ne's intelligence to be given a directive over the phone that these (election) petitions should be struck off without a hearing." (2001 3 Malayan Law Journal 433). The judge has retired, the Likas case being his last jewel.

Justice, equity and human rights

In the past two years or so, decisions of the Shah Alam High Court o­n Internal Security Act (ISA) cases have been encouraging. Public opinion regarding the cases of the ISA 5 and the conviction of Keadilan's Mohd Ezam Mohd Noor ( left ) under the Official Secrets Act, both heard in Kuala Lumpur, remains divided even among lawyers.

The report further recommends that the judiciary soften the effect of restrictive laws through interpretation and applications of justice and equity, including principles of human rights.

Very little has been studied of the "interpretive role" of our judges since Merdeka or the adjudication philosophy of our judges in constitutional cases. The interpretive role is usually understood as meaning that judges arrive at their decision by applying principles in a 'neutral and coherent way'. That notion, according to scholars is a judicial myth.

First of all, scholars argue, judicial appointments are political. The US Supreme court judges for example, are selected by the US President and the Senate. It is common knowledge that judges in the US are elected because of their partisan loyalties and political beliefs.

In Malaysia, the top judge (the Chief Justice) is appointed by the Prime Minister under the Federal Constitution. The "advice" of the Yang di-Pertuan Agong is a mere formality.

A senior lawyer and past chairperson of the Bar Council, Raja Aziz Addruse is of the view that from experiences learnt from the 1988 "assault o­n the judiciary" saga, the procedure for appointing judges is "clearly no longer appropriate". ( Insaf: The Journal of the Malaysian Bar . December 2002, p54).

He was speaking at a Bar colloquium, 'Current judicial trends and the rule of justice', in September last year. Raja Aziz thinks that the "authority which tenders advice to the Yang di-Pertuan Agong has to be o­ne which (or who) is independent of the executive and impartial."

We might recollect that in the case of appointment of the last chief justice, Mohamed Dzaiddin Abdullah, some media reported that the Conference of Rulers did some 'homework' ahead of the Prime Minister and thus the appointment came to force.

Interrogating judges

Some studies in the US o­n judicial behaviour note that the values of judges mirror and certainly lie within the range of those values currently or recently receiving official representation in other branches of the government.

Scholars however, interrogate whether this 'representativeness' is of consequence for the decisions the court makes.

Judges as normal people, hold views according to their social backgrounds. This includes education, occupational experience, ethnicity, religion, class and sex. Judicial attitudes are formed before their appointments to the superior courts.

Some studies contend that judges are not so much subject to the exercise of influence, but by like-mindedness. Judges are also subject to legal doctrines like that stare decisis or binding precedents. Then, scholars in sociology claim that research findings depend o­n research design and nothing is really conclusive.

There is a mass of information (again elsewhere) o­n this and the discerning rakyat might note that these would provide useful reading o­n a rainy day, perhaps in between political and constitutional crises, but what is the bottom line?

Studies do not decisively prove the existence of a causal link between judicial attitudes and judicial decisions. Neither do the studies (at least in the US) disprove the theory that judicial attitudes 'cause' judicial-making outcomes.

We should not dismiss these findings. These studies are important as information o­n the variables of 'influence'. This will enable the development of strategies of engagement with the courts.

Engaging with variables

One of the more important variables will remain public opinion. This requires the political space free from fear of sedition, 'national security' laws (whether the ISA or the proposed security law mooted by the Human Rights Commission of Malaysia), 'false news' and others which have littered the sphere of speech and expression since Merdeka.

The 'Justice in Jeopardy Report' has made important contributions as the way forward for judicial independence in the country. Increased public scrutiny of the selection of judges and scrutiny of decisions of high-profile and 'political' cases are important as indicators of the health of judicial independence.

The 'political' selection process of Supreme Court judges in the US for example is always o­ne of immense public debate. In recent US history of selection to the Supreme Court, the appointment of Justice Robert Bork to take over from Justice Lewis Powell during the Reagan administration was an example.

The appointment was seen by many as possibly placing in jeopardy a number of significant court policies o­n abortion and affirmative action. There was significant public and media attention, interest group involvement and intense Senate scrutiny and debate as it should be.

Justice Bork in The Tempting of America (1989) shares an anecdote which he says is not authentic. It was about a new state Supreme Court Justice who upon first meeting a US Supreme Court Justice said, "I'm delighted to meet you in person because I have just taken an oath to support and defend whatever comes to your head." Bork, reportedly was wary of "arbitrary preferences" of the selection process, of individuals "lucky" enough to be selected to sit in the highest bench.

Perhaps after 45 years of independence, we can ask of our judges; let there be truth in judging. If judges have political motive in decision-making we ask of our judges that they exercise their power in a politically and democratically defensible manner.

Rainy day reads:

1. Insaf , 'Colloquium o­n current judicial trends and the rule of justice'. December 2002. Bar Council of Malaysia

2. 'Justice in Jeopardy: Malaysia 2000'

3. Terri Jennings Peretti, In Defense of a Political Court . Princeton University Press. 1999

4. John Hart Ely, Democracy and Distrust: A theory of Judicial Review. Harvard University

Press. 1980

5. John Ely Hart, 'Towards a representation-reinforcing mode of judicial review', [1978] Maryland Law Review , vol 37 No 3

6. Alexander Meiklejohn, Free Speech and its Relation to Self-Government. Harper & Row, NY.

1948

7. AR Blackshield, etc. (eds) Democracy and Fundamental Rights . Primavera. Sydney.1986.