On the pages of history will be penned the public perception of a Umno lawyer picked by the Government from the Bar, parked in the Court of Appeal for a while, and placed at the pinnacle of the judiciary at an opportune time so that he and his cohorts could pander to their wishes and be paid a handsome price for bring prized lap-dogs!
By Martin Jalleh
Tun Zaki Tun Azmi has retired as the Chief Justice (CJ) of Bolehland. Weeks before the final curtain, he held himself in high regard in press interviews by giving rave reviews of his own tenure. He felt “very satisfied with the judiciary's achievements in less than three years” (Bernama).
For a long time the mainstream press had portrayed Zaki as a “reluctant” CJ. But as his retirement date drew nearer, the Malay Mail (MM) revved up the farewell accolades by revering him as the “Judiciary’s Renaissance man” (25.08.11).
According to MM’s executive editor Terence Fernandez the feedback he received from Zaki's contemporaries in the Federal Court including Arifin Zakaria, Raus Sharif, James Foong, Zulkefli Ahmad Makinudin and Abdull Hamid Embong was that Zaki “has revolutionised the judiciary”.
Praise for Zaki’s tenure also came from the Bar Council. Its chairperson Lim Chee Wee lauded him as one who has “surpassed the Bar's expectations as he has implemented many positive changes”. Lim listed 11 of the changes (Malaysiakini, 06.09.11).
Zaki’s changes may have been impressive but the reputation of the judiciary was sullied irreparably during his term of office. In the eyes of the public the judiciary sunk so low as to allow itself to be intimidated, its independence and impartiality interfered with, and its integrity reduced to ignominy.
He may have “performed very well” (according to Bar Council president Lim Chee Wee) but Zaki’s judiciary continued to be a convenient playground for the ruling elite to stay in power, persecute their opponents, punish dissenters and promote their political agenda, through the perversion of the rule of law. Further, it became so predictable!
Zaki took great pride in reiterating that he has never presided over any Umno-related cases during his tenure. He did not need to. His cohorts especially in the appellate courts would run the judicial circus on his behalf and even readily run riot with their ridiculous judgments, reducing the country into a judicial backwater!
Little wonder the ‘Perak cases’ for example 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. It was not difficult to guess why the well-regarded judges in the Federal Court were kept out.
The latest indictment on Zaki’s judiciary was in the form of an unsworn statement from the dock by Anwar Ibrahim in his sodomy trial. He explained that he was opting to testify from the dock, because he had no confidence he would be tried fairly and he showed in detail the court’s undeniable bias against him thus far.
He called the entire court process “nothing but a conspiracy by Prime Minister Datuk Seri Najib Tun Razak to send me into political oblivion by attempting once again to put me behind bars… this is not a criminal trial. It is a charade staged by the powers that be to put me out of action in order that they remain in power.” He was putting the judiciary on trial!
It is very evident that the “Judiciary’s Renaissance man” left behind a legacy of a judiciary scandalously compromised, shamelessly cowed and a slew of shocking contradictory and convoluted judgments. He failed to put his house into order so he shifted his furniture around to impress some of the people, like those in the Bar Council!
Zaki’s supposed judicial reform was shredded into smithereens and his judicial show and sham laid bare by Justice N H Chan who was furious at how the judiciary which he had served so faithfully has been reduced to a farce run by those who are "intellectual frauds”.
The respected, renowned and retired accused Zaki's judges of “putting themselves beyond the pale…just like pariahs”. He showed why he considered some of the judges, especially those in the appellate courts - “ignorant”, “incompetent”, “inconsistent”, “imposters” and even “idiots”!
The then Chief Justice remained silent! His conspicuous and continued silence gave credence to the court of public opinion that it is one of "quiet subservience". Evidently, it would be safer to maintain the status quo and to say that he was “very satisfied with the judiciary's achievements in less than three years”.
There were those who interpreted Zaki's silence as him allowing, approving, aiding and abetting with members of the judiciary who had left behind a dead constitution, “bad” and “perverse” decisions, dubious declaratory orders, judgments devoid of reasoned grounds, and disgraceful double standards.
The Government must have been very pleased with the fine performance of their reliable Renaissance Man. It even made a recent revision of a remuneration law in Parliament so that Zaki can ride into the sunset with a full pension after serving only for less than three years! Zaki was so touched, he invited the PM for a cup of tea but it created quite a storm!
“Creatures of the Government”
In Dec. 2009, Abdul Aziz Bari, a constitutional law expert, declared that the judiciary has been reduced to one that “takes its cue from the government”.) But it has been the then CJ’s belief that since the 1988 judicial crisis “the confidence in the judiciary has improved a great deal” (The Nut Graph, 26.03.10)!
Zaki called those who criticized the judiciary for its lack of independence “a small group of vociferous people out there, who go onto the internet and blogs and Facebook and all that and make comments without knowing the proper background. Many are not even lawyers.”
A few months later lawyer Edmund Bon, who was then the chairman of the constitutional law committee of the Bar Council revealed that “the perception that the judiciary is executive-compliant still remains till today” (Free Malaysia Today, 17.08.10)!
According to former Federal Court judge Gopal Sri Ram: “… the judiciary has become so ‘executive-minded’ and that “the judges have become creatures of the government” (Malaysiakini, 16.09.10).
The NST quoted Zaki on 12 May this year that feedback from lawyers showed that they were happy with the integrity of the judiciary and had not heard anything negative since 2008. He added: "I am sure many, if not all, agree that the Malaysian judiciary is now free from any criticism or accusation of bias or partiality."
Very apparently he had not listened to N H Chan who had often pointed out that the “Perak crisis has brought out a host of cases that showed that the judges gave the impression that they were one-sided. The perception of the people is that they sided with the BN government.”
Zaki Azmi, the “Judiciary’s Renaissance man” has left behind a legacy of a judiciary scandalously compromised, shamelessly cowed and a slew of shocking contradictory and convoluted judgments. Below are some examples.
Cowardice & Cold Feet in the Courts
The less-than-three-year tenure of Zaki Azmi saw the Federal Court shirking its responsibility to execute justice by declining to answer burning constitutional questions especially those related to conversion issues.
There were instances when it chose not to make a ruling but preferred to dismiss the case on technicalities instead. There is no better example of this that the Shamala Sathiyaseelan appeal. The glaring truth is that the court of last resort in this country is not the Federal Court, but political expediency.
Commenting on the issue, the Bar Council said that “the Federal Court failed to be decisive and abdicated its role as the ultimate arbiter in disputes involving constitutional questions and jurisdictional conflict."
Respected lawyer Art Harun concurred: “I have lost count of the number of cases which involve inter-faith conflicts arising from conversion and re-conversion of a person from one faith to another — often from one faith to Islam and back to the original faith — where the Federal Court had chosen not to make a ruling, preferring to dismiss the case on technicalities instead.”
On 28 July 2010 Zaki shied away from explaining why the Court of Appeal has yet to set a hearing date for the controversial “Allah” court case more than a year after it was filed. (The Catholic Church, which had initially agreed to stay publishing the word after a series of attacks broke out nationwide following the ruling on 31 Dec. 2009, has grown anxious at the extraordinary delay.)
On 8 Sept. this year, a three-member panel of the Federal Court led by Zaki, an unanimous decision, dismissed a crucial appeal by five Sarawak native customary rights landowners, a decision which will adversely affect more than 100 similar cases (Malaysiakini).
Both Zaki and another member of the panel, refused to interpret the constitutional question affecting native customary right land in Sarawak with the excuse that the issue of unconstitutionality was not raised or properly canvassed before the Court.
Baru Bian, one of the lawyers for the natives pointed out that there were in fact oral and written submissions on the matter. The judges “were evading the practical problem on the ground”. Law professor Abdul Aziz Bari opined that by refusing to deal with the constitutionality issue, the Federal court has abdicated its duty.
Contradictions
Zaki’s cowed judiciary took its cue from the government and this resulted in the courts being riddled with self-contradictions or courts contradicting one another, at times to a ridiculous extent! Below are some examples.
On 9 Feb. the Federal Court in the case of whether PR's Mohammad Nizar Jamaluddin or BNs Zambry Abd Kadir is the rightful Menteri Besar of Perak ignored (and contradicted) the established precedents.
On 25 Feb. 2010 the Federal Court unanimously decided not to review its 29 Jan. decision barring Anwar Ibrahim from access to the documents "which would be tendered as part of the evidence for the prosecution" and "a written statement of facts favourable to the defence" which he is entitled to.
There had been 10 previous decisions since 2001, presided by four previous chief justices where the Federal Court allowed a review of its own decision. Further, a month earlier (21.01.10) the Federal Court, acting on an application by the CJ reviewed and revised its absurd and perverse decision made a decade ago. One of the judges on the panel was Zulkefli Ahmad Makinudin. He was also on the panel of the 25 Feb. hearing! In other words he contradicted himself about a month later!
On 5 Aug. the election court threw out Zaid Ibrahim's petition to declare the election of P Kamalanathan as MP of Hulu Selangor on April 25 void, for Zaid failed to furnish details to back up his claims that the poll results were influenced by bribery and corruption.
In the Sodomy II case the court held that the details – police reports, list of witnesses, medical reports – of the prosecution's ongoing case against Anwar Ibrahim for sodomy, details that are as a norm furnished to the defence at the start of a trial “have not been fatal to the prosecution's case”.
In April, in a case between ousted Perak Speaker V Sivakumar and BN assemblymen in Perak, the Federal Court ruled that it was allowed to inquire into legislative proceedings. It departed from the precedent which gives respect to the doctrine of separation of powers.
On 22 Oct 2010 (in a case brought about by Puchong MP Gobind Singh Deo) the High Court ruled that legislative proceedings cannot be challenged in court. The constitution was supreme and that it cannot question proceedings of the Dewan Rakyat.
Other than introducing measures to speed up cases and ensure judgments are issued on time, Zaki has also been dogged by controversy during his time as CJ, the latest over amendments that allow him to get a full pension despite serving just a few years in the judiciary.
On the pages of history will be penned the public perception of a Umno lawyer picked by the Government from the Bar, parked in the Court of Appeal for a while, and placed at the pinnacle of the judiciary at an opportune time so that he and his cohorts could pander to their wishes and be paid a handsome price for bring prized lap-dogs!
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