A very long way to go for an independent judiciary: Can Malaysia make it?

The Pakatan Rakyat 3^rd Convention 2012 in Alor Setar, was sparked  by a few speakers that Anwar Ibrahim’s recent acquittal by the court alone cannot be the yardstick for UMNO to sing their own praises that the judiciary is independent. Earlier a senior DAP member stated that, “Anwar’s acquittal was a victory for justice but not yet a triumph for the justice system. Just as one swallow does not make a summer, the justice system in Malaysia has a very long way to go.”

A single decision that favours the Opposition does not prove that the judiciary has morphed into neutrality. It is still perceived by the masses that the judiciary is indebted to its ‘master’ and can be manipulated. “Malaysians are eager to see a judiciary that respects the people’s wishes rather than it being used by the government of the day to fulfil its political agenda,” quipped a senior Pakatan member.

In the case of Anwar he was equally put on trial by the media. The people did not expect fairness from pro-UMNO media during his long trial in the court of justice. Anwar and his family members were relentlessly and mercilessly reviled and put to shame while his court case was ongoing. This was obviously more of a political kill by the media on this charismatic leader. All these attacks and distortions were legally contemptuous but the court and UMNO made no attempt to neutralise the media.

The people have not forgiven UMNO for the Perak fiasco in 2009. This incident cannot be easily erased from the people’s mind.  Their perception is, the crisis of confidence in the judiciary at that time and the rule of law under Najib’s headship for the undemocratic power grab in Perak was given legitimacy by the judiciary.

Should not fear the government

“The judiciary being an independent arm of the constitution has nothing to fear when it comes to making fair judgments for the interests of the people. The judiciary in a democracy is not a body established to please or take orders from the government of the day. The government has no business to intervene with any court procedures or influence the Attorney General’s office on any matters relating to the legal process,” said a PKR representative at the Pakatan  conference . He added, “ As such, the ordinary citizens look forward to the judiciary  as their last bastion of hope to seek justice. Failing the people’s hope, the judiciary is failing the democratic process.”

When an unjust law is passed by the parliament this cannot be considered as law. “An unjust law made to favour the government of the day should be cast off,” said  the representative.  “If this cannot be done in the parliament itself, it is the role of the judiciary to ‘tip-off’ the government that the law be changed or altered for the benefit of the people.” Fairly, if parliament have made some indistinct or unjust laws, it is often the court that has the power to set right and surmise the law to be fair to the people. This does not seem to be the case with the judiciary in the country.

Not all parliamentarians are well-versed with the law and as such the onus is on the judges to help make out what law suits the nation. The judges who represent the judiciary are those who can make this call for the government  to act through their judgements. “They should not fear the government as in the state’s separation of power the constitution clearly stipulates that the judiciary is an independent arm of the government. In a true democracy the executive will not exert its influence on the judiciary,” said an English-speaking delegate at the convention.

He added, “When judges play to the gallery to please the executive and pass judgements to curry favour with the government, they are doing injustice to the very people who have put them up through the government as custodian of the law. In most instances, it’s the lack of integrity that often put some judges in such a quandary. And we see justice not done.”

Judges do make laws

“A judge’s role in court is not mere interpretation of the law found in the constitution when passing judgments. This is not a passable exercise when the judiciary cannot be independent. There could be flaws in the laws passed in the parliament or some shortcomings to some parts of the law,” quipped a representative from PAS. “A judge should know the law better and the court  can, without fear or favour, make suggestions to the executive or politicians to this effect. Unfortunately, the judiciary oftentimes finds itself subservient to the government of the day.”

Apparently, there are some archaic laws in the constitution that are no more relevant today. No efforts have been made to change these laws.  A judge may say the parliament enact laws and their duty is just to interpret them for the court processes – never mind if they find the laws flawed  or favour the government of the day.

“In fact judges do make  laws, as their judgements become precedence or laws to future court cases. For this reason, the law and  the judgements will have a lot of implications on the government and the people in general,” said a young lawyer attending the conference. “Their role can be to scrutinise the government and check the discrepancies or irregularities of the law.”

In the people’s court of opinion they see some ‘flaws’ in the legal system.  The are often chagrined to hear ‘unfairness’ in court judgements. They are puzzled as to why some visibly  ‘corrupted’ politicians – the big fish – are not dragged to court and many commoners – the small fry – as well as those in the Opposition are conveniently brought to court and severely punished. There were cases where even lives were lost before they could even be charged in court.

The lawyer added, “There is an incumbent and legendary chief minister that the world perceives as corrupted to the core  yet he is still perceived as clean by the UMNO government. The public has no hints whatsoever as to whether the MACC has opened a file on him. There are many other ‘big fish’ or cronies who are ‘sheltered’ by politicians and never being ‘touched’ by the MACC.”

It smacks of unfairness

For some political manoeuvre, an ex-MB of Selangor was charged in court just recently – when many others have slipped the rope. The MB was sentenced to 12 months jail for graft. Of course, the public is not convinced that a 12 month jail is sufficient for the serious crime he was alleged to have committed.

The public was stunned in the past as to how a shampoo thief could get jailed for 24 months and another thief, who stole RM20, was sentenced to 36 months in jail.  Money launderers who had cheated their clients over millions of ringgit  got between 2 to 3 years’ jail term. There was a reported case where a mother stole some food from a store. She mitigated in court that she stole the food for her hungry children but was jailed for a year. Can the ordinary people accept the ‘divergent ‘ formulas used to pass judgments  in our courts? To the laymen it smacks of unfairness.

Besides the judiciary, faith in many other government  institutions also has been sliding. The judiciary, MACC and the police have become increasingly distrusted. The many instances of corruption, abuse of power as well as perceived selective persecution by those in power have eroded Malaysians’ faith in the country.

The five-member panel of the Royal Commission of Inquiry (RCI) on V.K Lingam’s video clip had recommended appropriate action be taken against six individuals – all VIPs – for misconduct over the appointment of judges. It also found that there was prima facie evidence to investigate the six men for offences under the Sedition Act, Official Secrets Act, the Penal Code and the Legal Profession Act. Thus far no action has been taken against them.  A former Chief Justice (CJ) was caught on camera holidaying with a lawyer  who paid for his travelling expenses. This lawyer appeared in front of him in several cases. The lawyer involved was accused of fixing some court cases and the appointment of judges with the CJ and politicians. He was even accused of writing judgements for judges.

UMNO was so desperate to takeover Perak

The judiciary cannot be perceived as not politically influenced in the Perak’s Fiasco on March 9, 2009 when the Pakatan government was trampled without adhering to proper constitutional process.  The fiasco brought shame to the nation when the judiciary was perceived as being packed down by UMNO. The  turmoil ended in many court decisions favouring UMNO.

Pakatan lost almost all of their cases against the Barisal Nasional that took over Perak in a very controversial manner. The impression  of the people is that Pakatan government of Perak was ousted in an unconstitutional way and this will not be forgotten by all Malaysians. “UMNO then was so desperate to takeover Perak that they tip-toed the  constitution.” said a representative from Perak.

He added, “The leadership of UMNO should realise what it has done to democracy in Perak. It has lugged into the fiasco too many parties, not only the judiciary  but also the Perak monarchy, police, MACC and the state secretariat and the impact is catastrophic. The people will not forgive UMNO for the discomfiture.”

Perak fell to BN in 2009 when three lawmakers became UMNO friendly independents. Politicians have  been known to hop parties and anti-hopping law was at one time passed in Sabah (1986) and Kelantan (1990). But it was declared null and void later on the grounds that it was unconstitutional. The Federal Court decided that anti-hopping law is unconstitutional as it ‘infringes the people’s  rights to freedom of association’. Perhaps, this can be one way of looking at the  issue by the learned judges.

Anti-hopping law

The people, on the contrary, can question the  morality of the judges or the judiciary in general. The legislature could have unambiguously repealed the judgment of the court by enacting an anti-hopping law. When the government failed to do so, or initiate it, it can be insinuated that this ‘elucidation’ of the constitution by the judges is acceptable and in line with the wishes of the government. Obviously this ‘court game’ ended  favouring the government of the day in Sabah, Kelantan and Perak.

Defection is undoubtedly a serious breach of trust. It is a serious breach of the foundation of the constitution, as it defeats the spirit of election and crumples a democratic establishment. When a government is formed by defections of the representatives of a party, it does not necessarily reflect the hope of the people who have elected the party representatives. In most instances, the basis of the people’s votes is party-oriented,  depending on  the principles and manifesto of the party the candidates represent.

“MPs can often be bribed to defect party. The lack of anti-hopping law will encourage more bribery. This defeats the election system and demands a lot of queries on the morality of the government and the judiciary,” said an ex-UMNO member at the convention. “The legislature and the judiciary cannot be blind to these issues.”

Despite not having an anti-hopping law in Perak, the ruler had the discretionary power to dissolve the state assembly during the fiasco. This is because at that point of time neither Barisan Nasional or Pakatan Rakyat party had a clear majority (minus the three party hoppers) as the seats in the state assembly was a tie at 28:28. The interests of the people who voted for a government of their choice was again denied by a flawed system.

Committed to change the government

The judiciary  is finding itself tough to be absolved from criticism. The government of the day is still being perceived by the people as interfering with the judiciary.  The Perak political fiasco in 2009 and many other issues inflicting the judiciary and the government are perceptible indications that there is no desired justice right now in Malaysia. In fact, Pakatan government in Perak at that time was against the strong collective forces of the federal government, the judiciary , the monarchy and the police.  “UMNO doesn't have the politesse to exhibit that they revere the principles of democracy. It is despicable that UMNO will resort to such nauseating and contemptible modus operandi to seize power from the people of Perak,” said a political observer at the convention.

Seemingly,  Malaysians will set this right in the 13th general election, as they are generally committed to change the government. They rant and rave that when the judiciary bows to the government of the day, people’s esteem and dignity can be easily packed down by the powers that be. The people will, for that reason, sagaciously rise up to show their disappointment.

“The people are going to decide. Not only the independence of the judiciary is questioned, the people are also not happy with many other government-controlled institutions,” quipped a lawmaker from PAS.

Malaysia Chronicle