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Asiaweek: Daring to Rule
By Arjuna Ranawana
23/6/2001 10:52 am Sat
[Keputusan dua hakim menyentuh isu keganasan polis dan
pengundi hantu telah mengaibkan Mahathir. Makin aib lagi
kerana hakim Eusoff Chin yang dipanjangkan tempoh khidmatnya
(oleh Mahathir juga) itu terlibat di situ. Dan bertambah-tambah
aib lagi kerana kedua-dua hakim itu melayu. Ini menunjukkan
sudah tidak ujud ketakutan lagi hakim untuk memberi keputusan
yang tidak berpihak kepada kerajaan kerana undang-undang dan
pelembagaan serta keadilan itulah yang lebih diutamakan. Patutlah
Mahathir senyap tidak terkata - yang bising cuma Rais sahaja kerana
dia pendek aqal sebenarnya. Sebaliknya Mahathir cuba mencetus
simpati kununnya Umno pula yang menjadi mangsa SPR padahal ia
diam seribu bahasa bila untung sekian lama.
A fortnight before he was due to retire, Muhammad Kamil Awang dropped
a judicial bomb. The judge in the court of Kota Kinabalu in Malaysia's Sabah
state earlier this month annulled a ruling coalition candidate's victory in
state assembly polls two years ago. That was shocking enough. But Justice
Muhammad went on to say he had acted despite receiving a phone call
from a superior asking him to drop the case. He declared in his ruling:
"God has given me the strength and fortitude . . . to truly act as a judge
and not as a 'yes man.'"
For critics who have long alleged that there is excessive government
influence over the courts, Justice Muhammad's story was grounds for
renewed hope. All the more so because of the bold message being sent
out by Malaysia's new chief justice, Mohamad Dzaiddin Abdullah. Since his
appointment in December, Dzaiddin has warned that negative impressions
of Malaysian courts are harming the country. "Multinational corporations
and foreign investors are reluctant to invest because they perceive there is
no level playing field in the courts," he said shortly after his appointment.
Since then, Dzaiddin has urged judges to lift professional standards, said
contempt must not be used to suppress criticism, and denounced
excessive libel awards as a danger to freedom of expression.
Muhammad's rebellion came soon after another judge had refused to bow
to the authorities. Hishamudin Mohamad Yunus, a High Court justice in
Shah Alam, near Kuala Lumpur, on May 30 ordered the release of two
opposition activists arrested under the Internal Security Act, which allows
for detention without trial. Justice Hishamudin said the arrests were in bad
faith and violated the detainees' constitutional rights. "When one judge
gives such a decision, it is an isolated incident," says Syed Husin Ali, a
political science professor and opposition politician. "But when (two
decisions) come soon after one another, it becomes a movement."
Malaysia's judicial system has been under a cloud for some time.
Opposition politicians point to the case of Anwar Ibrahim, once Prime
Minister Mahathir Mohamad's deputy and heir apparent, now serving 15
years for s###my and corruption. Anwar claims he was railroaded by a
conspiracy engineered by his former mentor, a charge Mahathir denies.
But the problem goes beyond political cases. Yusuf Abdul Rahman, a
corporate litigator, says he has to restrain client expectations on their
chances of winning lawsuits in Malaysia. "Even when a businessman has a
good claim, he can lose," Yusuf says. "This is really bad for business."
Dzaiddin's campaign has raised hopes that Malaysian courts can boost
their independence and integrity. Human rights group Aliran said it hoped
Justice Hishamudin's decision on the ISA detainees was "the signal of the
end to years of judicial reluctance to challenge draconian legislation and
oppressive rule." On the business front, litigator Yusuf says: "Now there is
some hope of improvement."
The government has kept its cool, releasing the two detainees and
launching a police investigation into Justice Muhammad's accusations.
Former chief justice Eusoff Chin says he called Muhammad, but only to
urge speed. Mahathir has distanced himself from the controversy, saying:
"There is a separation of powers between the judiciary and the executive."
But in consolidating his authority after taking the premiership 20 years
ago, the judiciary was one of the first institutions he fought to rein in. That
struggle culminated in the dismissal of the country's top judge in 1988. If
the trickle of judgments against the authorities turns into a stream,
Mahathir could find that his grip on Malaysia is loosening.
ARJUNA RANAWANA/KUALA LUMPUR
ARJUNA RANAWANA/KUALA LUMPUR