Most Malaysian judges fail to recognise that the Federal Constitution is the supreme law of the land, and this is the reason public law litigation is dead in this country, a public forum on rule of law and human rights was told last night.
Senior lawyer Tommy Thomas said this category of judges over the years merely paid lip service to the supremacy of the Constitution.
"That has not changed much now and I will likely lose constitutional cases before them," he told a panel discussion at a public forum on the Rule of Law and Human Rights in Malaysia, jointly organised by the Malaysian Bar and the United Kingdom-based Bingham Centre for the Rule of Law.
Thomas, who has been in practice since 1976, also lamented it was difficult for litigants to get leave in the High Court to mount a challenge against arbitrary decisions made by public authorities.
"The Attorney-General, who is the custodian of public interests, comes to court to object to the leave application," he said.
Thomas said lawyers could argue brilliantly by submitting cases and legal principles on constitutional and administrative laws before these judges, but it was difficult to woo them.
"So public law in this country is in a sad state and constitutional law is especially, really dead," he added.
He said as such, there were only a handful of lawyers who still remained in these fields of law.
Thomas, a regular feature in the superior court rooms in Putrajaya, said he had also observed that only the presiding judge in the Federal Court dominated proceedings although a five-man bench sat to hear appeals.
"Four other judges who flanked the chairman on his right and left are normally silent and do not contribute much during proceedings," he said.
As such, he said he did not see any merit of having an enlarged bench to hear ordinary "bread and butter" cases.
Thomas was responding to a question from the floor on whether a full quorum should hear public interest cases.
To another question, he said he had also complained about some members of the Bar who mislead the court as they wanted to win at all cost.
He said judges of yesteryears were alert but these days such things happened because the bench was weak.
"But certainly both the lawyers and the judges are to be blamed for what is happening now," he said in response to a comment by senior lawyer P. S. Ranjan, who claimed that a for every injustice that took place in the court, there was a lawyer equally responsible.
Ranjan, who specialises in medical negligence cases, recalled that a judge once threatened to dismiss his application if he proceeded to file it, while his opponent, as officer of the court, remained silent.
Another lawyer, Malik Imtiaz Sarwar, said unlike the past, the judiciary no longer had prolific members on the bench.
"As a result, in a blink of the eye, we have lost the rule of law. Now we are left wondering whether these judges know what they are doing," he said.
He raised the issue of certain judges who also sat on Shariah court bench in the states to decide on Islamic issues.
"These same judges also sit in the civil court and they chastise lawyers for bringing this up if they attempt to disqualify the judges from hearing their case," he said.
He said the composition in the judiciary was no longer about race and religion but about the competency of judges.
Malik said the Judicial Appointments Commission which was set up in 2009 was not transparent "as we do not know what they do behind closed doors".
He said former prime minister Tun Dr Mahathir Mohamad, who gave evidence during the V. K. Lingam Royal Commission of Inquiry into judicial fixing, gave a peek on how judges during his time were selected.
"Dr Mahathir told the proceedings he talked to those whom he met to inquire who can be appointed to the Bench," said Malik.
Associate Professor Azmi Sharom, who was also a member in the discussion panel last night, said rule of law also meant that one must respect and protect it.
"However, in this country we failed miserably on both counts," he added.
He said Malaysia was only signatory to international covenants on protection of women, children and the handicapped, but not a party to the agreement on non-torture.
"However, we are a nation that still adopts the common law principle and as such are bound by customary international law.
"So we cannot allow punishments like flogging and amputation," said Azmi, in an apparent reference of penalties prescribed under the Islamic penal code that Kelantan hopes to enforce under hudud.