Have courage to write dissenting judgment, Sultan Nazrin tells judges


KUALA LUMPUR: The Sultan of Perak, Sultan Nazrin Shah has called on Federal Court and Court of Appeal judges to write dissenting judgments if they do not agree with the majority of the bench.

He said ​although there was undoubtedly, value in unanimous opinions, it was critical that judges spoke in dissent where necessary.

“Some judges may hold strong legal and moral convictions, yet fail to articulate their concerns in their judgments and they may remain silent out of deference to the judgments of others; out of concern that their comments may be dismissed; or out of a misplaced belief that what they might have to say is not that important,” he added.

Sultan Nazrin said however, the Bench and judicial decision-making processes could easily handle the ramifications of a divergent opinion on any given issue.

“​Sometimes, the brave dissenting voice is transformed into law. A classic case is that of Brown v Board of Education 347 US 483 (1954) when the US Supreme Court gave weight to the spirit of Justice Harlan ‘s dissenting voice in Plessy v. Ferguson 163 U.S. 537 (1896).

“As a result, and in a historic judgment, then-chief justice Warren held that racial segregation in public schools constituted a violation of the US constitutional guarantee of equality of rights,” he said in his special address at the launch of the book entitled, ‘Justice Above All, Selected Judgments of Tun Arifin Zakaria With Commentaries’ at a hotel here today.

The sultan added that judges should be free to express reasons in their judgments as they thought fit, and in other words, for the Rule of Law to flourish, courts and their participants should be allowed to express a variety of ideas and principles.

He said​ it was by their judgments that judges were made accountable for the decisions they had made.

“Every judge should have the opportunity to participate fully, even while the majority decision rules the outcome. This judicial independence in turn, helps to ensure that the Rule of Law is fully upheld.

“It is this adherence to the Rule of Law that should be the compass and leitmotif of all judges in the adjudication of all matters before them - no matter what the issues are, and no matter whose interests they are deciding. This ensures that justice will always prevail,” he said.

Sultan Nazrin said the character, qualities and independence of the judges themselves also served to sustain public confidence in the court as judges were not there simply to decide cases but to decide them as they thought the cases should be decided in the true spirit of justice and fairness.

He said doing the right thing was therefore, incumbent upon all judges and in fact, it was their supreme duty.

He added that in making decisions, it was imperative that judges gave reasons in their written judgments and these written judgments were vital.

“First, it reflects the transparency and accountability of the decision-making process, an integral component to gaining public confidence; and secondly, it is through these judgments that the law is developed.”

Sultan Nazrin said as common law lawyers, in making their judgements, judges should be well-armed with a strong narrative, in which the justification for the reasoning in their judgments was given pride of place.

He said ​these qualities were clearly evident in any reading of the judgments of great judges, past and present, and such judges dominated and defined their age, even as they were themselves shaped by it.

“Some are consummate judicial figures, whose legacy of brilliant judgments will be passed on to the generations that follow. In this regard, we will always be indebted to the lucid reasoning we find in the judgments of Tun Suffian, Tun Azmi, His Royal Highness Sultan Azlan Shah, justices Eusoffee Abdoolcader, HT Ong, SS Gill and all our other judicial luminaries,” he added.

Sultan Nazrin said when judges retired, they left behind a corpus of judgments which would continue to be part of the law - to be applied, analysed and scrutinised.

He said ​living in challenging times, the institutions sometimes seemed to be under threat which made it all the more crucial that the public’s regard for the judiciary should be at its highest and clearest.

“More than ever, we need courageous and fair-minded judges to instil confidence that the judicial system remains sacrosanct in guarding the rights, interests and liberty of all.

“The judiciary must thus, strive relentlessly to dispense justice in accordance with the Rule of Law. While this is an essential prerequisite for safeguarding civil and political rights and ensuring good governance, it also provides the foundation for economic growth and progress,” he said.

He further said by providing fair and prompt judicial decisions on matters concerning the enforcement of commercial rights, a well-functioning judicial system helps to promote a competitive and attractive economic climate in the country.

“As our economy and society continue to evolve, the progress being made is thus, further strengthened by our maturing judiciary, and by the integrity of the judicial decision-making process.”

Sultan Nazrin said his own belief was that a great judgment was one in which the decision-maker fully understood he was the guardian of the Rule of Law, and in which his fidelity to its precepts was absolute.

“In this regard, I would like to end with a quote again from my father, His Royal Highness Sultan Azlan Shah, who, like Tun Arifin, was also the Chief Justice.

“I quote, ‘The rules concerning the independence of the judiciary...are designed to guarantee that they will be free from extraneous pressures and independent of all authority, save that of the law. They are, therefore, essential for the preservation of the Rule of Law,” he said. – BERNAMA