Extracted from the Malaysian Star On-line - the
following is a lecture by a US Judge in the Supreme Courts
:-
Judging Kennedy
US Supreme Court associate justice Anthony M.
Kennedy was in Kuala Lumpur to deliver the 20th Sultan Azlan Shah
law lecture on Thursday. SOO EWE JIN followed his lecture at the
Shangri-La Hotel and also had an exclusive interview with the judge
on Saturday just before he flew back to Washington.
FROM a distance, Justice Anthony M. Kennedy looks like most judges
do. He has a serious demeanour and throughout his lecture on
Written constitutions and the common law traditions he did not
depart from the seriousness of the subject. But he held the
audience's attention because he delivered the lecture with a
passion and without the benefit of any notes. He knew the subject
inside out.
It was delivered with so much passion and conviction. Many said it
was the best in 20 years, said former judge Datuk Seri Dr Visu
Sinnadurai.
The ballroom at the Shangri-La was not as packed as last year's
lecture when Cherie Blair spoke, but Kennedy is certainly more
distinguished.
While Blair is an acknowledged Queen's Counsel who is also married
to British Prime Minister Tony Blair, Kennedy is a judge of the US
Supreme Court. The highest court in the US comprises probably one
of the most revered group of nine judges in the civilised
world.
The subject of his lecture was certainly appropriate, and
timely.
Although Malaysia draws its legal tradition from the British, it
embraced the concept of a written constitution like the US. With
these similarities, much of what he spoke on struck a chord among
members of the audience.
Kennedy, up close and personal, certainly did not look so serious.
He is a towering figure, and when he came out of the lift to meet
me at the lobby, the first thing he did was to thank me for
actually sitting through his lecture.
He agreed to change our meeting place immediately as the
photographer wanted to capture some elements of Kuala Lumpur in the
pictures, so we proceeded to the 27th floor.
The judge was extremely warm and chatty, and despite the Malaysian
official anxiously keeping check on our agreed time, he was pleased
to expand on what he delivered at the lecture.
Asked why he did not have any prepared speech, Kennedy explained
that speaking to the audience this way allowed him to be more
personal. I can see how my audience reacts. I notice there were
many young people there. I wanted to acknowledge them because they
were so gracious to come to a law lecture, he said.
The only prepared item was a bookmark that was left on every chair
in the hall.
It was my wife, Mary, who came up with the idea. I wanted the
audience to digest the three main points relating to The Rule of
Law, Kennedy said.
The judge had stressed at the lecture that the term Rule of Law
cannot actually be found in any legal textbook. It is a concept
that is still very much open to interpretation, depending on the
context.
For example, a dictator can also proclaim that the country he rules
subscribes to the rule of law when the laws may be everything but
fair and just.
To help the audience understand what he believes is the universally
accepted concept of the Rule of Law, Kennedy referred to the
bookmark.
On it, Kennedy outlines that The Rule of Law, from his
understanding, means:
1. The Law is superior to, and binds the government and all its
officials.
2. The Law must respect and preserve the dignity, equality, and
human rights of all persons. To these ends, the Law must establish
and safeguard the constitutional structures necessary to build a
free society in which all citizens have a meaningful voice in
shaping and enacting the rules that govern them.
3. The Law must device and maintain systems to advise all persons
of their rights and it must empower them to fulfil just
expectations and seek redress of grievances without fear of penalty
or retaliation.
Kennedy quoted a simple example whereby government
officials make the ordinary people think that they are doing them a
big favour when the people come to them to make a request, like a
form or information. It is their job to do so, without question,
not something we have to beg for and based on whether they want to
give or not, he said.
On the Constitution, Kennedy said the reason why the US
Constitution has so few amendments is that the process to change it
is not easy.
It is the duty of the judges to ensure that the process to
challenge the Constitution is not flimsy.
We must respect and revere the Constitution, he told the
audience.
Explaining further at the interview, Kennedy said the constitution
can be spelt with either a capital C or a small c.
I often explain to my students, or members of an audience, that
the one with the capital C is what we judges interpret. It is our
great charter. But the one with the small c is the sum total of the
morals, customs, traditions and understanding, among other things,
that make for a peaceful and great culture. I suppose the closer
the formal, legal Big Constitution comes to the small constitution,
the closer they match, then the more stable the community
is.
Kennedy stressed that we cannot be blind, indifferent or
unaware of injustices.
Although the founding fathers could not have envisioned what might
happen in the future, the process of interpreting the Constitution
by judges on the Supreme Court is unique and quite unlike common
law judges whose opinions can often be overruled by the
legislature.
Civilisation is a conversation over time,
Kennedy said.
When cases are argued out from the constitutional perspective, we
get new insights and new truths, Kennedy said.
At the lecture, Kennedy pointed out that judges of the Supreme
Court have life tenure and this gives them full independence.
But this is independence not to do as we wish, but to do
as we must, he stressed.
It was a profound statement that had members of the audience
nodding their head in agreement.
An issue which he did not touch on at the lecture, but which he
felt necessary to bring up at the interview was about giving
adequate resources to the judiciary.
I like to meet legislators, especially those in charge of the
budget, Kennedy said. Worldwide, I know it is always difficult to
convince the political branch to give adequate resources to the
judiciary. I can understand that. If you are a legislator, and you
go back to your town, to the people who voted for you, and you tell
them, 'I voted for more money for the courts', it is not a good
political sell. They will tell him that we need roads, we need
schools, we need healthcare...
But you must remember that a functioning, honest,
efficient, non-corrupt judiciary and legal system is part of the
capital infrastructure of the country. It is as important
as bridges, roads and utilities to the country's economic and
social progress.
You are investing in the progress of your country when you invest
in an adequate judiciary. I always make the point. I know it is
difficult, but they have to think about that.
Prof Khaw Lake Tee, Dean of Universiti Malaya's Faculty of Law, is
tremendously pleased with the response to the lecture.
The series has become an eagerly awaited event for the legal
fraternity in Malaysia. The lectures delivered by legal
personalities provide a perspective of common law developments in
other countries from which we can draw comparisons and lessons,
she said.
The lecture was graced by Sultan Azlan Shah of Perak, who is also
Chancellor of Universiti Malaya, Sultan Sharafuddin Idris Shah of
Selangor, and the Raja Muda of Perak, Raja Nazrin Shah, who is also
the university's pro chancellor. UM vice-chancellor Datuk Rafiah
Salim chaired the proceedings.
Can the Singapore Judiciary take note
of the above ?