[Majlis raja-raja tidak dapat membincangkan pelantikkan presiden mahkamah rayuan yang baru kerana PM tidak memberi senarai untuk dipilih itu. Khabarnya hakim negara, Dzaiddin telah mencadangkan tiga nama yang tidak diingini oleh PM. Tambahan pula, raja-raja tentunya tidak akan memperkenankan jika Mohtar dicadangkan menjawat tugas itu. Ini adalah satu lagi isu atau krisis Hakim VS PM yang semakin rancak sekarang.

Tahun ini sahaja muncul 3 keputusan yang menempelak kerajaan. Setakat ini kerajaan telah menghina 2 daripada 3 keputusan itu melalui tindakkan kurang ajar atau melawan balik atau buat-buat tidak tahu (Likas dan ISA). Penangkapan pelajar melalui ISA, cadangan pindaan untuk kes pengundi hantu dan pencalunan Yong di Likas bagai mahu menempelak kembali badan kehakiman.

Badan kehakiman sudah lama dicemari oleh politik sebab itulah Hakim Syed Aidid menulis sesuatu sehingga menggemparkan negara satu ketika dulu. Kenaikan pangkat dan pertukaran hakim-hakim selalunya mempunyai motif politik. Tentu kita belum lupa hakim Hamdan yang membebaskan Azmin dulu serta hakim Hasnah yang membenarkan Anwar diperiksa doktor telah ditukar. Apa yang berlaku di Indonesia, Filipina dan Thailand sekarang menyaksikan kebangkitan badan kehakiman untuk membaiki kepincangan dengan penuh keberanian. Ini tentunya tidak diingini oleh Mahathir dan Rais Yatim kerana mereka nanti akan terhumban.
- Editor]

http://www.malaysiakini.com/
Column/2001/07/2001072501.php3

Wednesday July 25

Promoting judges judiciously

CHIAROSCURO
MGG Pillai

6:05pm, Wed: The Conference of Rulers, at its meeting early this month, did not consider the appointment of a new president for the Court of Appeal. Apparently, the prime minister did not submit the three names from which the rulers would have chosen one.

It is learnt that Chief Justice Dzaiddin Abdullah had made his recommendations but it did not contain the name of whom the prime minister wanted. In addition, the Rulers would not agree to the former attorney-general and now Federal Court judge, Mohtar Abdullah.

Protocol requires that the names submitted must be acceptable to the Rulers. And the Constitution requires the chief justice to make the recommendation which the prime minister submits to the Rulers.

The new chief justice, in the short time he has on the bench, moves at best he can to bring the judiciary back to its past reputation, sullied by the frequent constitutional amendments that removed its inherent powers and reduced the role of judges, despite their high protocol position; to that akin to customs and police officers - theirs to apply the law and keep their mouths closed for the injustices this might cause.

The two previous chief justices invoked this loss of inherent jurisdiction to rein in the judges into a straitjacket. Many succumbed, others, like Dzaiddin, refused, and was sidelined until he was appointed chief justice.

Political interference

A judicial system to destroy enemies of a regime and those it finds inconvenient cannot survive for long. What is worse, it destroys justice itself in the public eye, and turns the clock back. Dzaiddin attempts valiantly, a soulless, thankless task. He has to second guess the establishment which still insists on a subsidiary subservient to its needs.

But the judges are not prepared to sit by and take orders. Under Dzaiddin, they have recovered their voice, and make themselves heard. Three judgments in the last two months heralded the changes.

One High Court judge, sitting in an election petition, declared the elections of a state seat in Sabah null and void leading to the disqualification of the incumbent Barisan Nasional assemblyman over fake names in the electoral role.

The other judge released two opposition politicians detained under the Internal Security Act because the police did not act as the ISA says it must. And the Federal Court, in an excoriating judgment, quashed the contempt of court conviction on a former president of the Bar Council for filing an affidavit on behalf of his client.

It soon became clear that a judicial system set up to ensure the control of enemies of the powers-that-be, and those it finds inconvenient, will fall apart. It is built on hollow foundations that, as now, it must come apart.

In Malaysia, there is the added political interference which makes it even more difficult, under a dominant chief justice who wants justice delivered to order. The constitutional changes do not help; it removes the inherent independence one expects of judges

Promoted automatically

The regular tussle between the executive and the chief justice over who should be appointed is inevitable in a system where promotions are viewed as a gift and not one of right.

The manner of judicial promotions must be changed so that a form of judicial Buggin's turn is in place. One must expect that judges are what judges should be, and their promotions should not be at the cost of justice itself.

Once judges are promoted automatically, they do not, and should not (but do for survival), have to look over their shoulders. It would remove the angst amongst lawyers and the laymen having to appear the courts that one could not expect justice from the courts if the other side is represented by a lawyer close to the chief justice or the party is a well-connected business man.

This works well in India, where the chief justice is the most senior judge in the Supreme Court and often serves in that post for two years or less; one was in office for 11 days. The uncertainty in the Malaysian system becomes worse, as now, when an appointment is bogged down because the political, not judicial, criterion is in question.

It does not augur the country well if judicial appointments are subject to such machinations. They must be made promptly, and not be subject to regal and political test of wills. But one does not see a serious political desire to make it otherwise. It is the judiciary that sets the tone of a country's credibility.