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FEER: Bench Brawl
By S. Jayasankaran

22/6/2001 7:49 pm Fri

Far Eastern Economic Review

Issue cover-dated 28th June 2001

Bench Brawl

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 it.

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 without trial.

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 international criticism.

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.