By David Dass
For many lawyers, becoming a judge is the pinnacle of a
professional life - the culmination of years of study, advocacy, and sacrifice.
It is the ultimate realisation of a dream.
Malaysia is a country governed by the rule of law. We have a
written Federal Constitution, which stands as the supreme law of the land. As a
parliamentary democracy, laws are made by Parliament and the state assemblies.
Our legal system draws from multiple sources - the Common
Law of England, the personal laws of Muslims, native laws and customs of the
Orang Asli and the indigenous peoples of Sabah and Sarawak, as well as the
customs and usage of our diverse communities.
At the heart of this framework stand independent judges,
whose task is to interpret and uphold the law.
They are the custodians of justice - the chosen ones on
which the entire system of law and governance rests. Here we speak of the
judges of the civil and criminal courts, and not of those serving in the
syariah judiciary, which administers Muslim personal law.
The call to serve
The day a lawyer receives the call to the bench is
unforgettable. It is a moment of heart-stopping excitement - one that marks a
turning point in a life’s journey.
The news is shared first with family, then with close
friends and colleagues. That joy is often mingled with deep anxiety.
Leaving private practice is never easy. A senior partner
often anchors the firm they helped build; their departure may unsettle its
stability.
Yet, the call to serve - long-awaited and deeply desired -
cannot be refused. It is a call to duty, to something higher than self.
Of course, there are many judges who come from the judicial
and legal services of the government. Their experiences may be a little
different, but all else will be similar.
The burden of responsibility
With exhilaration comes apprehension. Can I sit through long
hearings with patience? Can I send a man to prison - or pronounce the death
sentence? Can I endure the long hours, the isolation, the endless reading, and
the burden of deciding between competing truths and conflicting arguments?
Judges administer both the criminal law and the vast panoply
of civil and commercial law. A daunting prospect for even the most able of
lawyers.
The stories of great judges inspire awe and unease in equal
measure. One Malaysian judge was said to have written over 800 judgments in his
career - an almost superhuman feat.
The judge-to-be recalls the old cautions: a judge who speaks
too much is like an “ill-tuned cymbal”, and a judge who “descends into the
arena of conflict risks having their vision blurred by the ascending dust.”
Above all, in the words of Lord Alfred Denning, “Justice
must not only be done but must be seen to be done.”
The perception of fairness is vital to sustaining judicial
credibility and authority. There can be no conflict. Judges are independent.
They stand between the powerful - the power of the state - and the individual
citizen.
Lord Denning once said: “To every subject of this land,
however powerful, I quote the words of Thomas Fuller, three hundred years ago:
Be ye ever so high, the law is above you.”
And as Tun Salleh Abas, Malaysia’s Lord President until the
1988 judicial crisis, reminded us: “The judges are the protectors of the
Constitution and the guardians of the people’s rights. Without their courage
and integrity, the rule of law would be but an empty slogan.”
The trappings of office
The ceremony of elevation is solemn. The new judge dons the
robe, shirt, and bib - the apparel of their office. Their family and friends
gather proudly in the courtroom as the Chief Justice presides.
On that day, though several may be elevated, each feels a
unique surge of pride and awe. He takes the oath of office and swears to uphold
the Constitution. The transformation is complete.
Their day begins. He is assigned a driver and a car. On
arrival at the courthouse, their assigned orderly opens their car door, the
registrar greets them, court officers bow, and lawyers address them as “Yang
Arif” or “My Lord.”
The symbolism is powerful - they are no longer the ordinary
man, but the office he holds, the office that commands deference. And as others
treat them differently, they, too, begin to see themselves differently.
From glamour to grind
The excitement soon fades. In its place comes the relentless
rhythm of judicial life - chamber applications, interlocutory hearings, full
trials.
Each day demands intense concentration, constant
note-taking, swift rulings, and the projection of calm authority.
The writing of judgments is the sternest test of judicial
competence. A poorly reasoned decision can cast doubt on a judge’s fitness for
judicial office; a well-written one consolidates their position.
They labour long nights and weekends reflecting and writing.
It is a challenging task that never gets easier with time.
Justice Benjamin Cardozo of the US Supreme Court observed:
“The great tides and currents which engulf the rest of men do not turn aside in
their course and pass the judges by. We, too, are subject to passions and
prejudices, but we must strive to rise above them in the name of justice.”
And Justice Gopal Sri Ram of Malaysia captured judicial duty
in these words: “Judges must also act impartially without fear or favour. A
good judge… must not betray the oath of this high judicial office… He must also
be passionately committed to defending the fundamental principle of the rule of
law and the Constitution.”
The judge’s social circle narrows. The laughter of raucous
dinners with lawyer friends gives way to quiet lunches with fellow judges.
Judicial independence demands social distancing; friendship
gives way to more discreet interaction. Slowly, the judge discovers the
loneliness of their calling.
A noble but lonely calling
A judge’s vocation is a noble but solitary one. The judge
must be learned in law, wise in human affairs, and steadfast in conscience.
The dishonest judge, it is said, has a special place
reserved in hell. Some rumours swirl through the chambers of errant judges.
There was that anonymous letter by a judge and that
affidavit by a sitting judge. But these were unproven allegations, and
generally, judges are respected and held in very high esteem.
A judge does not decide cases arbitrarily. He is bound by
the principle of stare decisis, which requires him to follow precedent where
the facts, issues, and law are similar.
Yet within those constraints lies room for creativity and
moral courage - to interpret, to distinguish, and to find justice within the
law. Each day, they must balance law, truth, and fairness.
As Justice Oliver Wendell Holmes Jr said: “The life of the
law has not been logic; it has been experience.”
And former chief justice Tengku Maimun Tuan Mat said this in
a speech in Indonesia in 2021: “The task of a judge is onerous and is reflected
in the oath that we judges take, namely to bear true faith and allegiance to
Malaysia and to preserve, protect and defend the Constitution. Undeniably,
judging requires knowledge, integrity and courage.”
Comparative perspectives
Across the common law world, judges share a kinship of
purpose and burden in their pursuit of truth and justice.
In England, centuries of tradition surround the judiciary.
Their judgments are scrutinised immediately by lawyers, academics, and the
press.
The pressure for clarity and correctness is intense,
tempered only by the knowledge that appellate judges may later critically
dissect their reasoning.
In the US, the Supreme Court justices are the best known in
the world. Though their rulings apply only to Americans, their influence
extends globally.
Their power to interpret the Constitution gives them vast
authority - but also exposes them to intense political storms between
conservative and liberal ideologies. It is the force of their reasoning that
influences.
The US Supreme Court
In Malaysia, the pressures are different but equally
formidable. Judges face heavy caseloads, limited resources, and the complexity
of deciding cases in a multi-ethnic and multi-religious society.
As former Lord President Suffian Hashim once said in a
public lecture: “In a multi-racial and multi-religious society… while we judges
cannot help being Malay or Chinese or Indian… we strive not to be too
identified with any particular race or religion… so that nobody reading our
judgment with our name deleted could with confidence identify our race or
religion.”
Judges must constantly work to sustain public confidence -
the judiciary has been shaken at times by crises of the past.
Their judgments, often written in solitude, ripple far
beyond their chambers, shaping commerce, politics, and the delicate balance
between state power and individual freedom.
Their authority devolves through the Constitution. They are
the ultimate arbiters and interpreters of the Constitution. They safeguard our
democracy and our freedoms.
The weight of office
After years on the bench, some judges ascend to the
appellate courts, bearing new titles and expectations.
Their manner changes - they walk with quiet authority,
conscious of the dignity their office commands. It is not arrogance but
awareness - of the heavy mantle they wear, and the eyes of a nation that watch
them.
A judge is, at their best, a servant of justice and a
guardian of the law. Their life may be lonely, but it is a life that matters.
Within their courtroom, the fate of individuals, the liberty
of citizens, and sometimes life itself, hang on their words.
The judge’s charge
Across centuries and continents, the message remains
unchanged: For Lord Denning, the duty of a judge is to find the truth and do
justice according to law.
Justice Cardozo urged judges to rise above their passions.
Former Lord President Salleh Abas warned judges that without integrity, the
rule of law becomes an empty phrase.
Gopal Sri Ram reminded judges that justice must be done
without fear or favour. Suffian emphasised that judges must be blind to the
race or religion of those who appear before them.
Raja Azlan Shah emphasised the importance of judicial
independence. Judge Zainun Ali stressed the importance of judicial power,
judicial independence, and the doctrine of separation of powers within our
constitutional framework.
Tengku Maimun forcefully maintained that core elements of
our Constitution could never be removed.
Former Chief Justice Tengku Maimun Tuan Mat
Judge Nalini Pathmanathan is quoted as saying that
independence meant to her “the independence and freedom to adjudicate on the
cases before her not only in terms of freedom from influence, but also the
ability to study, absorb and analyse the law, be it statute or case-law from
Malaysia and numerous other jurisdictions.”
Heavy is the burden on the shoulders of a judge.
Finally, when the trappings fade - the cars, the robes, the
ceremonial bows cease or pass - what remains is the written judgment itself:
reasoned in law, tempered by humanity, and anchored in conscience.
That is what endures. It is written testimony to a country’s
adherence to the Rule of Law. That is the legacy of a judge.
In the words of Lord Bingham: “The rule of law is not a
slogan or a mere lawyer’s construct. It is the foundation of a civilised
society”.
DAVID DASS is a distinguished Malaysian lawyer
