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MGG: Judicial Instructions From Above
By M.G.G. Pillai
13/6/2001 5:43 pm Wed
[Hanya seorang sahaja mungkin telah menalifon Hakim Muhammad Kamil Awang
dan orang itu adalah Eusoff Chin. Isu Likas ini bermakna senarai daftar undi
SPR adalah tidak tepat walaupun beberapa kali kununnya disemak. Ini berarti
kerajaan yang terpilih adalah tidak sah dan satu penipuan terancang telah
berlaku. Oleh keran Hakim Muhammad Kamil sudahpun memberitahu Ketua Hakim
Negara, Tan Sri Dzaiddin, tidak perlu beliau mendedahkan nama itu sebagaimana
yang didesak oleh Rais Yatim. Beban sekarang terletak di bahu Ketua Hakim Negara
dan barisan hakim-hakimnya untuk mengembalikan keadilan ketempat yang sewajarnya.
Hakim Muhammad Kamil telah melaksanakan satu tanggungjawab sebaik-baiknya sebelum
beliau bersara. Jangan Rais Yatim atau sesiapa cuba menunjuk muka kerana kes ini
akan menyaksikan siapa yang lebih berkuasa - undang-undang atau manusia.
Mr Justice Muhammad Kamil Awang, in declaring the Likas state assembly
seat in Sabah vacant, said he ignored an order from his superior to strike
out the election petition. He would not say who it was, though in a
subsequent press conference he ruled out politicians (and therefore the
Prime Minister and deputy prime minister), the present chief justice, Tan
Sri Dzaiddin Mohamed; the president of the Court of Appeal, Tan Sri Lamin
Yunus, said he did not; the then chief judge Tan Sri Chong Siew Feh too
principled a man to indulge in such actions. That left just one man who
could possibly have done so: the former chief justice, Tun Eusoff Chin.
And this instruction came in 1999, shortly after the Sabah elections
petitions had been filed.
Since Mr Justice Kamal's claim, he is under pressure to reveal who he
is. He has since written to Tan Sri Dzaiddin to say who he is. He would
not say more, adding that the lawyers involved in the petition know who he
is. It transpires, as Mr Justice Kamal releated, he had asked other
elections petition judges to do so as well. When he was ordered, he
wanted the instruction in writing, which, of course, never came. So, he
ignored it. The de facto law minister, Dato' Rais Yatim, wants him to
reveal who he is, but judges say what they want to say from the bench.
If a wrong is revealed, the judgement itself should stand as the basis for
police investigations. Besides, a judge does not explain his judgement
after he had delivered it.
There is, of course, more to the judgement than pressure from above.
The Elections Commission deliberately did not address complaints to the
electoral rolls, with an official saying he had been ordered not to. That
throws doubts on how accurate the electoral rolls are. If it is in one
constituency, it should be in other constituencies in Sabah, and elsewhere
in Sarawak and the peninsula. So when the selfsame Elections Commission
says the updated electoral rolls would be used for the byelections, one
cannot be sure if that is accurate. The decision confirmed what
opposition parties had suspected: that the Elections Commission became
firmly an arm of the government in power in Kuala Lumpur, and it threw its
independence to the winds.
That it became known at all is yet another sign that despite the
constitutional amendments which reduce judges to the bureaucratic level of
customs and police officers, they want to return the judiciary back to
what it was before two successive chief justices actively helped put them
into a straitjacket. Tan Sri Dzaiddin, since he took office, removed the
shackles his predecessor had put on the judges. He has done much, but he
must confine himself as chief of the appellate court, leaving the
administration of the judiciary to the chief judges. He sometimes takes
an too keen an interest in that. He should not.
But the mishaps of 13 years cannot be put right in a few months.
But how the judges react to the new atmosphere, and their readiness to
challenge the long held political view that judges had no role beyond
adjudicating cases without annoying the government and the chief justice
is a sign that a new epoch of a judiciary people can respect is in the
cards. That two judges, within a week, had said they have a higher
standard of their role is but one indication of that. A judiciary
strengthens with introspection and a freedom to articulate issues of the
day whether it annoys the government or chief justice or not. Mr Justice
Kamal, who retires later this month, has shown how a judge should react in