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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. - Editor]

Judicial Instructions From Above

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 such circumstances.

M.G.G. Pillai