In a legal system built on
confrontation and technicalities, one judge’s bold decision in Ipoh dares to
rewrite the script. This post examines a case that could redefine how we think
about justice—not just as a matter of rules, but as a moral obligation to care.
Kindness and compassion are not words that one normally
associates with the law. The remote, often obscure language of the law and the cut
and thrust of the judicial trial have no place for kindness and compassion.
Trials are adversarial. Their origins are in combat, and
combatant attitudes still rule the way trials are conducted.
Lawyers’ letters to opponents are aggressive, demanding, and
threatening. Judges, when they decide on a matter, whatever that matter is,
will generally apply the dry letter of the law regardless of how it might
impact the person against whom it is applied.
Any mitigation of the harshness of the laws must be found in
the laws themselves. Compassion and kindness play no role, even when the most
human needs, such as the need to be employed, come before the courts for a decision.
It was refreshing, therefore, to see a recent judgment of
the High Court in Ipoh adding those elements of compassion and kindness to its
decision. This note will omit the citation to the case to protect the identity
of the teacher.
The case concerned an application for judicial review of a
decision of a disciplinary board to dismiss the applicant. The applicant was a government
schoolteacher. The teacher, because of persistent psychological problems, was
absent from school on several occasions. The school was aware of his medical
condition when he was transferred to the school in 2007. The school was also
aware that he elected not to be boarded out of service because of his illness,
but desired to continue to work as a teacher.
Because of the severe effect of the medication on him in the
morning, the teacher had asked to be reassigned to teach in the afternoon, but
this was denied. Instead, following his absences from class, the Ministry of
Education found him guilty of misconduct and dismissed him from service. He
appealed to the Disciplinary Appeal Board, but without success. The teacher
then applied to the High Court in Ipoh for a judicial review of the Appeal
Board’s decision.
The teacher’s main argument was that neither the
disciplinary board nor the appeal board had, in reaching their decision,
considered his medical condition or his appeal to be reassigned to teach in the
afternoon classes.
A judge who is considering an application for judicial
review must confront a whole range of technical issues in law. Judge Su Tiang
Joo JC, the judge in the instant case, waded through all these issues before
deciding in favour of the schoolteacher.
But what is noteworthy about his judgment is his comments
about how the education authorities disregarded the teacher’s medical condition
and his request to be reassigned to classes in the afternoon.
Kindness, the judge thought, could have avoided the teacher
having to appeal to the courts for relief.
‘It is unfortunate that the
respondents have collectively failed to show kindness to the applicant,
necessitating his having to come to the Court to seek justice and, undoubtedly,
the compassion of this Court on the situation in which the applicant finds
himself, and this Court ought not to turn him away. Along the path on
Constitutional Hill in Johannesburg, leading to the Constitutional Court of
South Africa, the highest court on constitutional matters, is a big structure
made up of letters that reads “BE KIND”. Its location within the grounds of the
Constitutional Court makes it clear that it is this attribute that the
Constitutional Court holds dear, and which underpins the cornerstone of a civilised
society of equals governed by the Rule of Law.
The American psychiatrist, Theodore
Isaac Rubin, said in words that resonate very well with this Court, and I
quote, “Kindness is more important than wisdom, and the recognition of this is
the beginning of wisdom.”
According to the judge, the silence was deafening on the
part of the authorities when they refused to deal with the serious ailment ‘suffered
by a man who was struggling to cope and who at the same time is desperately
seeking to hold onto his job which he cherishes so as to be able to pay off his
housing loan (with 17 years more to go) and to look after his aged mother . . .’
This is an inspiring decision. The imposition of a duty on
government officials to be kind may establish a new judicial ground for
reviewing their decisions.
More than that, the judge’s remarks might persuade them in their work to be kind to the thousands who turn to them daily for help.