The judging of judges

The British political system has been hailed, with some justification I think, as the prototype of parliamentary democracies all over the world.

Certainly, most of the democratic institutions and principles we know today - such as the separation of powers between the administration, the judiciary, and the legislature, and the idea of a free independent press as the bedrock of checks and balances against excesses of power - have their distant origins in the events before and after the glorious English Revolution in 1688.

In fact, many aspirants to democratic ideals in Malaysia must have looked to the British model for guidance and inspiration.

Nevertheless, unless you are a diehard Anglophile, you must be perturbed and confused over the controversies arising over the Hutton Report on the events surrounding the apparent suicide of weapons expert Dr David Kelly.

The carnage of petulance raging in the front pages of British media and elsewhere must have given outsiders the impression of a society in crisis, and hence - especially to fear-ridden Malaysians - a society plunged into great instability.

The office of the British prime minister has been under siege. Last week, Tony Blair barely survived a vote on top-up fees in British universities by a razor thin margin of 5 votes, despite Labour's landslide majority of 161 in the House of Commons.

If the Hutton inquiry had concluded that Blair had indeed misled Parliament by 'sexing-up' the intelligence dossier on Iraqi WMD prior to the war, the PM would probably have had to resign.

Eventually, to the great surprise of many, Lord Hutton exonerated No 10 Downing Street of all blame, and delivered the most damning judgement against the BBC in its 80-year history.

Fantastic pressures from the prime minister's circle demanded and got the scalp of two top men in the BBC, as well as that of the guilty reporter, Andrew Gilligan.

Once again, press freedom in Britain is under threat, not only from a strong prime minister with presidential style, but also from a conservative senior judge.

Up till then, the unfolding of events would sound familiar to Malaysians. Most of us would take this sort of development as a matter of course if it happens in Malaysia. In fact, someone educated in England remarked to me that, with their independence of judiciary, the Hutton report must have some substance to it.

Therefore, what happened in Britain in the aftermath of the Hutton Report must provide plenty of food for thought for a fledgling democracy like Malaysia.

Unlike members of our mainstream media in a similar situation, the BBC fought back against their damnation with a vengeance. There were immediate walkouts and demonstrations, and everywhere, and out-going BBC director-general Greg Dyke was received like a hero.

Senior BBC staff bought a full-page advertisement in newspapers to publish a statement voicing concern over the implications of the Hutton Report. Dyke (photo) himself sought legal advice and may yet seek judicial review of the Hutton decision.

At the same time, there was an explosion of comment in the media questioning the wisdom of the findings. The Hutton Report is too one-sided for comfort. But then, it is only to be expected, since a player who appoints his own referee is unlikely to lose the game.

Some opinion writers in Britain have observed - as Dr Kua Kia Soong has in his article 'Lesson from the Hutton Report' - that Lord Hutton had employed such a narrow set of terms of reference as to make his one-sidedness inevitable.

And yes, a judicial enquiry, set up as a knee-jerk reaction by the government to investigate a national scandal, was not necessarily the best means to get at the truth.

In any case, a judge may be better placed to hear criminal or civil cases, than to preside over a judicial enquiry that will determine the political future of the highest office in the British realm.

Nick Cohen, in his article 'Schooled in Scandal' which appeared in the Observer on Feb 1 shares his reflection:

"Fiat Justitia, ruat caelum, judges once bellowed. 'Let justice be done though the heavens fall'. It's a proud slogan. The law must take its course even if the powerful are brought low, and the foundations of the state shaken. Unfortunately, a slogan is all it is. Most judges want the heavens to stay just where they are, thank you very much, and blanch when asked to confront the misconduct of the powerful."

Even the great Lord Denning, whose books have become sacred texts for many Malaysian law students pursuing the mysterious subject of jurisprudence, was not exempt from this charge of judicial deference to the government of the day.

His judgements in the sensational John Profumo case in 1963 and the controversial case of IRA suspects being beaten by the Midland police into confession in 1980, have often been cited as examples of how even a wise judge may err.

There lies the need to debunk the myth, here as well as in Britain, that independence of the judiciary means that judges are always independent, objective and impartial.

We are not talking of merely corrupt judges. There will always be those around in any polity. Francis Bacon, while he held the exalted office of Lord Chancellor in the 17th century, was prosecuted and sentenced for accepting bribes from litigants. Even then, he was probably the victim of political squabbles.

(Here I am thinking sadly of the young magistrate who cleared me of a silly criminal charge a few years ago, but went on into prison for taking a small bribe. Magistrates, like doctors and other professionals in government service, are grossly underpaid.)

The fact remains that, self-interest and career promotion aside, judges are also human beings. Judges do not live and work on a vacuum; they are themselves the product of the ethos of their space and time, subject to the historical and sociological influences prevalent in their society.

No matter how learned and wise they are, and how carefully they examine the bundles of authorities and the mountains of facts set before them, their background and their personal convictions may - consciously or otherwise - come into play in their complex tasks of delivering a judgement.

Why, some judges may even lean towards the government of the day out of the good principle that, while it is the duty of the judiciary to provide relief to citizens who have applied to review unjust administrative actions taken by the executive, it is quite another matter to usurp the legitimacy or the authority of the elected government.

In cases like the Hutton inquiry, where the political future of the top office bearer in the land hangs in the balance, would he not be very sensitive to the import of his eventual verdict?

Would any judge sitting in Lord Hutton's chair not be tempted with the thought that, if a prime minister is to be removed, the parliament or the electorate are more justified for the job rather than through a judicial process?

Then again, no judge will be devoid of some political convictions. They may consciously desist what they fear to be their prejudices in discharging their duties, but they hold these beliefs nevertheless. In politically sensitive cases, it is hard to tell how and when any judge can deliberate against the call of their conscience, without doing severe damage to their personal psyche.

In the case of Lord Hutton, a flurry of letters and comment in Britain has traced his career, especially his tenure as the CJ of Northern Ireland. They claim that he has been consistently pro-government in his handling of sensitive cases in that troubled territory. He would be the logical candidate to conduct a judicial enquiry into government misdemeanour if you wanted a whitewash.

A poll published after the affair suggested that 90 percent of Britons thought the Hutton findings were too unbalanced. Poll after poll showed that more people still trust the BBC more than the prime minister.

In delivering a controversial judgement against the BBC, Lord Hutton has not done much to boost Blair's popularity; he has merely brought back questioning about the independence of judges in a country renowned for the independence of its judiciary.

The lesson that Kua seeks is clear. It is the continued presence of a relatively free press in Britain that allows the intricate tension between the powerful institutions of state to be played out in public, thereby preventing power being concentrated in the hands of one man or one branch of government.

At present, the British public may be plunged into a crisis of mistrust into all things official. There is a sense of loss of innocence.

But I think that, in the long run, this public blood-letting would be beneficial to the political system, because it serves as a self-correcting mechanism. Half-truths and lies will continue be scrutinised by a vigilant public.

Another lesson ought to be for the judges. Here, the taunting of Socrates echoes and ricochets through 25 centuries of history. We human beings may not know what justice is, but we often know what justice is not.

Malaysia had a judicial system that was one of the best in the Commonwealth. I still recall how the late judge Harun Hashim outlawed Unmo with a stroke of the pen.

The sacking of a Lord President, and amendments introduced to whittle away the independence of the judiciary in the late 1980s, have changed all that.

Over the years, I have been able to predict with amazing accuracy the outcome of most politically sensitive trials, especially those involving former deputy premier Anwar Ibrahim. It is an ability of which I am not proud.

Perhaps the most important lesson from the Hutton episode ought to be for judges everywhere in the world.

Despite their prestigious and privileged station in life, their judgement in cases of national importance will itself be judged by the court of history and public opinion.