Jaundiced judiciary

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There has been no shortage of court jesters in the all-year-round judicial circus, observes Martin Jalleh.

In 2009, the judiciary allowed her courts (supposed portals of justice) to be turned into a playground of political expediency and the perversion of the rule of law. There was no shortage of court jesters in the all-year-round judicial circus.

As was so aptly put in December 2009 by Abdul Aziz Bari, a constitutional law expert, the judiciary has been reduced to one that “takes its cue from the government”. He likened Malaysia to Zimbabwe, a country ruled by President Robert Mugabe, who has subverted the judiciary to shore up his sinking government.

During the Perak constitutional crisis certain judges disregarded constitutional provisions and the doctrine of separation of powers – in stark contrast to five occasions when brave judges ruled it had no jurisdiction over decisions made in legislative assemblies.

Even when certain judges chose to interpret the Federal Constitution correctly, they appeared to do so when it best suited Umno. The judiciary left behind a dead constitution, “bad” and “perverse” decisions, dubious declaratory orders, judgments devoid of reasoned grounds, and disgraceful double standards (such as the examples given below).

Less than a day after the KL High Court had ruled in Nizar’s favour, and three hours after Zambry had filed for a stay of execution, a one-man Court of Appeal readily heard the latter and granted him a stay two hours later! Nizar had to wait for nine days before his application to set aside the stay order granted to Zambry was heard!

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Zambry won his appeal 11 days after the KL High Court had declared Nizar as the rightful MB of Perak. The Federal Court which heard Nizar’s appeal has to date (more than 30 days later) not given a verdict! It has been seven months since Nizar’s lawsuit was first heard, but the occasionally super-efficient judiciary remains silent!

Three times the Federal Court rejected Nizar’s request for a full panel (it being a case of such paramount importance). No reasons were given for the rejection – yet the Federal Court has convened panels of seven judges to hear drug-related cases in the past!

Further, as was pointed out by columnist Kim Quek, the ‘Perak cases’ were made the exclusive domain of the few judges who were already looked upon with increasing dismay by the public for their perceived political partisanship. He quite rightly asked why the well-regarded judges in the Federal Court were kept out.

The public viewed the judiciary with greater suspicion, scepticism and even scorn when many perceived in 2009 that the judiciary appeared once again ready to be manipulated for the political purpose of getting rid of Anwar Ibrahim – as it happened 10 years ago!  The stage for the Sodomy II trial or show-trial was set.  

What was initially filed as a non-consensual offence was later changed to consensual sodomy – without the other party being charged! The case was transferred to the High Court when the Sessions Court judge who ruled that the AG’s transfer certificate was invalid and that the case should remain in her court went on leave!

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The High Court, which ordered the public prosecutor to allow Anwar’s lawyers to inspect documents and evidence pertaining to the case, dismissed Anwar’s application to strike out the sodomy charge – in spite of the medical reports by four medical specialists showing no anal penetration.

The High Court judge fixed the trial dates disregarding a pending appeal at the Federal Court on the Court of Appeal’s decision to overturn the High Court judge’s earlier decision granting Anwar access to the documents related to the case! An exasperated Anwar responded: “The very least is for him to respect his own previous decision…”

The judiciary also seemed more interested in mere technicalities than truth and justice. Decisions on the merits of cases were often avoided on the basis of “mere technicalities”. The Court of Appeal struck out Anwar’s RM100 million defamation suit against Dr Mahathir on the technicality that the memorandum of appeal was not in Bahasa Malaysia. Presiding Judge Abdul Malek Ishak stressed the supremacy of the national language as he delivered his 31-page written judgment in English!

In the case of Kampung Buah Pala, the presiding judge in the Federal Court, the late Augustune Paul, in June 2009, rejected the residents’ application for leave against a Court of Appeal decision that had overturned a landmark High Court verdict in their favour. The rejection was based on technical grounds although there were substantive triable issues that should have been addressed and determined.

The courts were often perceived as being biased towards the Umno-led government. It became so obvious to many that subordinate and High Court judgments by a few brave judges which were favourable to Pakatan Rakyat would certainly be overturned by the appellate courts.

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Transfers awaited three judges who made rulings that the Umno government took umbrage to – Justice Alizatul Khair Osman Khairuddin, Lau Bee Lan and Mohamad Ariff Md Yusoff. Chief Justice Zaki Azmi insisted the transfers were “promotions” – though he admitted all three had yet to be shortlisted for promotion!

Alas, 2009 was a year when the courts were clogged, hogged (by political cases), bogged down by cases related to the Perak Constitutional crisis, dogged by accusations of bias and double standards and flogged by public opinion.

Martin Jalleh is a well known political commentator.

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