The Judge's Gift

by Harun Rashid

Jul 13, 2001

Asia has a reputation for doing things backwards, and in the case of Malaysian justice this is well earned. Rather than respected and honoured, the dis-honoured judges are held in contempt by the public, and sometimes described as contemptuous by other, better, judges in their rulings, condemning the contemptuous judges as contemptuous, along with officers of the prosecution who prance before them. It is a contemptuous situation, and makes the societal position of judge in Malaysia less meritorious than it once was during colonial times.

In criminal matters, the police have a peculiar mode of operation, reversing the usual order of events. Instead of the customary investigation, followed by the arrest of a suspect, Malaysian police arrest first, then interrogate the suspect (this passes as 'investigation') at length, and after a period of 60 days or so, announce to the waiting public the charges to be brought. If no charges can be found or invented during the period of interrogation, they mutter, "ISA" three times, then transfer the prisoner from a solitary cell to a cell in a communal "camp" for two years while they attempt to invent a credible story for the outraged public. Surprisingly, it is an efficient system, reducing court time and costs. There is a little paperwork to be done in the office of the minister of home affairs, located inconveniently at the edge of the village of Lilliput. On the downside, it is hard on family life.

It also offers a quaint picture of legal history, in which the power of the ruler to incarcerate is tested against the people's right to a fair trial. The writ of habeas corpus is being re-invented, in parody of the proverbial wheel. This tends to date Malaysia's justice system with the early medieval period of the English common law.

Many observers shrug this off with a, "Ho hum, another failure of democracy-after-independence." Others, however, recalling a prior period of decorum and dignity, are embarrassed to see the depths to which the traditions have dropped. To them we make an appeal. Please speak out for redress. Now is the time.

Family and friends, lawyers and bribes have no leverage in this milieu, as the Special Branch of the police, having orders from "the top," manage to get the cooperation of the Attorney General's office in the avoidance of any accounting, and thus avail themselves of the interminable delay that denies justice. There is a peculiar appetite for opposition figures, journalists and students who object to such high-handed treatment of their friends.

The jury system is inoperative in Malaysia, yea these six or seven years, replaced by a learned counsel elevated to the bench by the dictates of the prime minister's office. There is no forum for considering the ability, experience or aptitude of the candidate for the post. Just about anyone who can take an order will do, and does. Thus the system of justice has been simplified to the more direct political dimension.

The purposes of democracy in Malaysia are met by an election commission which has a titular duty, imposed by the Constitution, to maintain public trust and confidence. The composition of the commission is entrusted to the resident rotating monarchy, the members of which have other things to occupy its time, like cutting ribbons at a fee of RM25,000 an appearance. Cutting a tree brings a similar recompense. The supervision of the electoral commission are left to the prime minister, who has his own idea about how the democratic process should work.

There are, on regular occasions, complaints regarding the electoral processes, generally from losing candidates, and more rarely from losing incumbents. That is because in Malaysia, as in other places, the incumbent rarely loses. In Malaysia, however, the complaint is that the election commission has unfairly shoo-ed the incumbent back in.

These complaints were so well documented in the last general election that the sore winners had to pass a law requiring the losers in the election to pay all costs if they also lost the court case. That, predictably, put paid to most of the challenges placed before the election courts for adjudication.

Enter the contestants in Likas, located in the state of Sabah at the northern tip of Borneo. There Malaysia makes claim to two disparate states, both of mind and ethnic diversity. The election in Likas was challenged by the loser. The judge hearing the case, a smiling pleasant man, is worthy of mention, both for his perspicacity and his courage.

The Very Honorable Muhammad Kamil Awang, sitting for the lower court, found the situation execrable, and after a long and tiring trial, said so. What he wrote in judgement deserves careful consideration, centering as it does on the many failures of the democratic process in Malaysia.

In a carefully crafted writing, the Very Honourable Judge Muhammad Kamil Awang told the details of illegal immigrants registered to vote, expensive billboards erected in the dark of night on the eve of election day (across the street from the polling place), numerous other irregularities in the proper conduct of the voting process, and an unwillingness on the part of the party-in-power to make any effort to address the wrongs. He declared the election null and void.

In his judgement he mentioned a phone call, which was later discovered to have come from the Chief Justice, instructing him to close the case without hearing any testimony. This is where the moral courage of the Very Honorable Justice Muhammed Kamil Awang came to the fore. "I will not be a 'yes-man'," he wrote. He named those culpable and negligent. In spite of this, there have been no indictments, no personnel changes, no calls for improvement. The Attorney General, notified by the judge of the offenses, has not responded by so much as a press conference. The Attorney General appears to have gone into hibernation.

In the aftermath, a new election is scheduled a week or so hence. The incumbent, found to be implicated along with his party and the electoral commission, has been allowed to run again for the same office. The same electoral commission officers will conduct the election process. The election is to be held although there is no assurance the electoral rolls have been purged of the illegal and spurious names. It is essentially a repeat of the old election, and the results are predictably the same.

The Very Honourable Muhammad Kamil Awang has retired, having struck a forceful blow for democracy as his last ruling. It is a happy ending. It is rare for a jurist, at the end of a long career, to have such an opportunity, and given the circumstances, his performance deserves a standing ovation, a resounding accolade, from his colleagues, the members of the Malaysian bar, the people of Malaysia, and those struggling for universal justice around the world.

To the Very Honourable Justice Muhammad Kamil Awang, we stand hat in hand in homage and admiration, for your learning, and above all for your courage. May you have a long and happy retirement. Your action is an inspiration to all jurists in Malaysia who struggle with conscience. May you be heralded forever.

We do you honour, your Honour.