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FEER: Bench Brawl
By S. Jayasankaran
22/6/2001 7:49 pm Fri
Issue cover-dated 28th June 2001
In a country where politics casts a keen eye on the judiciary,
judges show renewed independence
By S. Jayasankaran/KUALA LUMPUR
SIX MONTHS AFTER the appointment of a new chief justice, Malaysia's
judiciary is showing signs of renewed independence. In the process,
a fresh row pitting one judge against his former boss has broken out
over allegations of judicial impropriety. The allegations have
sparked an outcry in legal circles and reinforced suspicions that the
judiciary has tended to favour the executive in crucial cases.
On June 11, High Court Judge Muhammad Kamil Awang nullified the
results of a state election--won by a ruling National Front
candidate--and indignantly alleged that in 1999, when hearings on the
case began, he had been "given a directive" by a "superior" to dismiss
Meanwhile, in May, Judge Hishamuddin Mohamad Yunus ordered the
release of two opposition activists jailed under the Internal Security Act.
In the process, he affirmed the supremacy of the constitution over
state-sponsored laws while suggesting that parliament itself review the
relevance of laws like the ISA, which permits indefinite detention
The rare whiffs of judicial activism have sparked hopes of a
renaissance of the sort that prevailed between independence in 1957
and 1988, during which time it was unthinkable to suggest impropriety
of any sort by the Bench.
The resurgent assertiveness may have been catalyzed by new Chief
Justice Dzaiddin Abdullah's avowed desire to restore the "image" of the
judiciary. "The Bench seems to be trying to reclaim the middle ground
away from the political discourse," says Karim Raslan, a lawyer and
regional columnist. "They want to take the status quo back to the period
when there were consistent flashes of independence."
That earlier era ended in 1988 when Premier Mahathir Mohamad
confronted judges over several cases that went against his
administration. In the subsequent fallout, six Supreme Court judges were
impeached and three of those were sacked, including the top judge.
Since then, the Bench has faced consistent criticism from the legal
fraternity and public-interest groups for appearing to comply with the
executive in high-profile cases.
The 1990s brought further disquiet with allegations that the corporate
sector was having undue influence over the Bench. Indeed, the period
has been notorious for an intense, and critical, scrutiny of the judiciary
that reached its zenith in 1999 and 2000, during the controversial trials
of former Deputy Premier Anwar Ibrahim, now serving 15 years for
abuse of power and s###my. Both trials attracted widespread
Since Dzaiddin took over, people have begun speaking out. In
January, Shaik Daud Ismail, an appellate judge, said he was
"embarrassed" to be a judge, lamenting the slide of a once "beautiful
and well-respected" institution. In a blunt speech, Shaik Daud said that
some litigants were very confident of winning "hopeless cases" so long
as they were filed in "certain courts."
Dzaiddin himself has been frank, acknowledging to the press in various
interviews that he had been "marginalized" by the previous judicial
administration and that perceptions about unfairness and corruption in
the judiciary could be well founded.
But there has been nothing like Kamil's revelation of pressure from
above. Since then, former Chief Justice Eusoff Chin, Dzaiddin's
predecessor, has admitted to making the call but denied directing Kamil
to dismiss the case. Eusoff said that he had merely called to express his
concern about the case's slowness and that he had given Kamil
pointers concerning legal precedents. A police investigation of Kamil's
claim is under way.
Several judges have professed surprise at the latest turn of events. "I
hope the learned Tun Eusoff Chin has been misquoted by the
newspapers," says V. C. George, a retired appellate judge, "because
these calls don't and shouldn't happen. It's unthinkable that a judge
should talk to another judge, much less a subordinate, about a pending
case before the latter. It's just not on."
Eusoff isn't a stranger to controversy. Last year, he got into a slanging
match with Law Minister Rais Yatim over Internet pictures showing
Eusoff holidaying in New Zealand with V. K. Lingam, a prominent
lawyer who appears frequently in Malaysian courts. Rais described the
meeting as "inappropriate" behaviour. Eusoff dismissed the allegations heatedly, saying he had "bumped" into
Lingam by chance and had paid all of his own expenses on the trip.
Nothing has come of the allegations since. But this fresh controversy
could open up a Pandora's box
Eusoff dismissed the allegations heatedly, saying he had "bumped" into Lingam by chance and had paid all of his own expenses on the trip. Nothing has come of the allegations since. But this fresh controversy could open up a Pandora's box.