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MGG: Judiciary and Public Conscience
By M.G.G. Pillai

1/7/2001 11:14 am Sun

[Dollah Badawi sepatutnya menutup sahaja mulutnya jika dia cerdik sedikit. Dengan melenting terhadap keputusan yang tidak menyebelahi kerajaan BN di mahkamah, nampak benar dia tidak senang hati dan tidak menghormati keputusan itu. Seolah-olah dia mahu semua hakim memberi keputusan yang menyebelahi kerajaan sahaja.

Bagaimana Dollah mahu menjadi Perdana Menteri kalau bersikap sebegini. Hidup ini ada kalah dan menangnya agar manusia dapat mengambil iktibar dari kesilapannya. Lagipun kebenaran yang dipalsukan itu akan meledak dan memberontak juga walaupun ia cuba ditutup dengan pelbagai cara. Yang penting bukan kerajaan kalah dan menang tetapi KEADILAN itulah yang mesti menang.

Sebelum Dollah ingin 'memulihkan mahkamah' dia seharusnya menegur hakim yang membenarkan tuannya lari dari safina mahkamah dulu sedangkan memberi keterangan bukanlah sesukar mana jika dia benar semata-mata. Hanya mereka yang bersalah merasa gelisah dan serba tidak kena. Sebagai saksi pembela, tiada sebab untuk Mahathir merasa takut tidak terkira.
- Editor

Friday June 29

Judiciary and public conscience

MGG Pillai

12:52pm, Fri: The government should tell the judiciary to wield its awesome powers, "with great care and circumspection". So spake the deputy prime minister, Abdullah Ahmad Badawi, at a law firm dinner.

It cared not a whit when the judiciary, under the former chief justice, dispensed awards in the hundreds of millions of ringgit and contempt-of-court convictions with equal abandon.

Now that it is forced to have to pay the huge sums to ordinary individuals, in defamation damages, it wants the judiciary to be careful. It is more than that. The government cannot suborn the courts to rein in its opponents. It cannot now expect the judgment it wants.

So, the sudden interest in the judiciary's integrity is a subtle message that enough is enough.

Three judgments recently makes Badawi insist the judiciary to dispense justice "fairly and swiftly". One questioned the constitutionality of ISA detentions, the second vacated a state assembly seat in Sabah when the Elections Commission fudged its duties, and the third allows lawyers to file client affidavits to imply flawed justice, without being subject to contempt-of-court proceedings.

Judicial slaps

Each, in its own way, orders the government that it had better buck up or face the consequences. It is, understandably, uneasy. The judicial slaps were justified, the government is shell-shocked to react; when it does, it dwells on the inessentials and on the larger role of justice in society.

The government, if truth be told, had a large hand in the courts before. It encouraged the huge defamation awards without proof to threaten those who write critically. The beneficiaries were its cronies.

That went overboard but when the government is now sued for millions of ringgit by ordinary men and women, it calls a halt. One judge reveled in the large defamation awards he ordered, and only too happy to use the powers in his command to inhibit criticism or suggest he may be wrong.

That the judiciary is fashioned by the chief justice of the day stems from a little known constitutional amendment which removed its inherent powers. Judges, despite their high status, were equated to customs and police officers, there to implement the law and not question.

Contempt of court and high defamation damages entered the system with such regularity because the then chief justice had no interest in the law except to punish. He did not believe in the judiciary's role to correct wrongs, and ensured that justice be administered as a restaurant dishes out food at lunch time.

It is not the restaurant's responsibility if the food is not up to standard, so why should it not be the judge's about justice?

The Anwar conundrum

Into this conundrum came the Anwar Ibrahim affair. The courts were suborned to ensure his conviction. Rules were short circuited. The courts would not allow him to call the Prime Minister Dr Mahathir Mohamad, as a witness when the prosecution would not.

The government would have got away with it, if it had rushed through the processes. It could not. It fell foul of Malay cultural mores. The public mood changed. The judges were unhappy at being blamed for what happened. Now every step in the appeal has to be fought hard for. It cannot afford to lose one case involving him. It is now uncertain if it could.

This was possible because the judiciary was split, one group happy to do the chief justice's bidding, and the other fighting a rearguard action to keep the idea of justice alive. This group now has the chance to put matters right under the new chief justice. But it cannot without the constitutional amendment to return it its inherent powers. Without it, the judiciary cannot be as independent as it should.

Into this equation comes Malay judges, who now act as they should. They reflect the convulsion in the Malay community the Anwar fiasco broke open. The judiciary now attempts to return as the conscience of the nation. The government finds that inconvenient. Especially, with the impending appeals from Anwar over his conviction and sentence.

Streak of bias

The Federal Court, in quashing Zainur Zakaria's conviction for contempt of court, accuses the judge of a streak of bias towards the prosecution. Zainur was summarily convicted for filing his client, Anwar's affidavit alleging the Deputy Public Prosecutor (DPP) suborned and coerced witness to lie in court.

This is un-rebutted, and could land the DPP concerned in jail for 20 years. So far, no one has lodged a police report. The judgment and the affidavit could force a retrial. However much the government would wish the Anwar affair away, it cannot.

Abdullah Badawi is right when he says judges "must see faces and hear the voices of the people he will never meet, yet whose lives can alter with the stroke of a pen". But not when he adds: "... but do not go beyond the bounds of your responsibilities to prove a point to the government and to the people."