KL judiciary reasserts itself

KL judiciary reasserts itself

By Brendan Pereira

KUALA LUMPUR: This is a strange time for the Malaysian government as it watches the renaissance of the country's judiciary with trepidation and unease.

Trepidation, because the score in wood-paneled courtrooms currently reads 3-0 in favor of the opponents of the Mahathir administration.

Two opposition politicians have been freed. An election result was thrown out and called a sham. And an opposition politician was cleared of contempt of court. And this may only be the start.

Up next, a hearing on whether the government was justified in stopping the flow of nearly RM1 billion (S$480 million) in oil royalties to the Parti Islam Malaysia (PAS)-led state government of Terengganu.

Another important date on the court calendar: When former Deputy Prime Minister Anwar Ibrahim challenges a decision not to allow him to receive treatment for a slipped disc in a Munich clinic.

Unease, because it was the government which let the genie out of the bottle.

Stung by reports that public confidence in the judiciary was low, it appointed reformer Tan Sri Dzaiddin Abdullah as Chief Justice in December.

By all accounts, he is doing a sterling job.

Says Datuk Param Cumaraswamy, a United Nations official who oversees the independence of judges and lawyers: "There is definitely a resurgence of judicial independence. The only concern is political forces and how they are going to react."

On the ground, some government politicians think the idea of allowing the judiciary to blossom was a bad one from the start. They want to trap the genie, stuff it in the bottle and put the stopper back.

But returning to the status quo remains the minority view. The majority view is one of quiet concern.

Deputy Prime Minister Datuk Seri Abdullah Badawi articulated that view in a speech last Friday.

Speaking to an audience of judges and lawyers, he said: "In restoring the image of the judiciary, the government hopes that the Bench will do what it is supposed to do: Dispense justice fairly and swiftly."

He added: "By all means improve your image, but do not go beyond the bounds of your responsibilities to prove a point to the government and the people. Popularly elected governments are held to account every four or five years. If we have made wrong or unpopular decisions, the electorate can evict us from office. There is no opportunity for people to hold judges to account."

Lawyers and several former and current judges interviewed say that the catalyst for the new assertiveness is Tan Sri Dzaiddin. During his sessions with judges around the country, he has made it clear that they owe allegiance only to the law and their conscience.

He has also abandoned the old practice of transferring "independent-minded" judges to smaller towns.

When appellate judge Datuk Shaik Daud Ismail disclosed in a speech that some litigants filed their suits in certain courts to win hopeless cases, he was rewarded with a six-month extension on the Bench.

No wonder that lawyers believe the good old days of pre-1988 are back.

Thirteen years ago, Prime Minister Mahathir Mohamad went face- to-face with the judiciary over several cases that went against the government. After a special tribunal, six senior judges were impeached and three sacked, including the chief judge. Since then, the courts have been perceived as being friendly to the government. There was also some concern that corporate figures were having undue influence over certain judges. And that some judges were having undue influence over other judges.

That coffee-shop talk gained a veneer of credibility when High Court judge Datuk Muhammad Kamil Awang nullified results of a state election and said that when proceedings started in 1999, he had been "given a directive" by a "superior" to dismiss it.

Former chief justice Eusoff Chin has admitted making the call but denied asking the judge to dismiss the case.

The old school received another beating when the Federal Court -- the highest court of the land -- said that a High Court judge had blatantly disregarded rules of procedure when he convicted one of Anwar's lawyers for contempt of court and sentenced him to three months' jail.

In 1998, foreign correspondent Murray Hiebert was charged with contempt of court for writing an article on an ongoing case between an international school and one of its students, the son of a judge. He was jailed for three months after losing the case.

His lawyer, Shafee Abdullah, believes the outcome would have been different today. "Hiebert's case came about during dangerous times. It is a new judiciary now with a lot of promise for hope and justice." But the judiciary is at a fragile stage, he notes, and judges should be careful with their judgments. Said the lawyer, who also counts UMNO politicians among his clients: "In all cases, they should avoid making sharp statements on collateral matters or personalities in a case, as this might invoke doubt on whether our current judiciary is anti-government or truly independent."

Government politicians agree with his observation and argue that some judges appear to be overly exuberant in bashing the authorities.

Says an UMNO Supreme Council member: "Do not win back favor with the public at the government's expense. That is what some of the judges are doing. They are creating the impression that it was the government who kept them quiet all this time. Maybe they did so out of self-interest."

At this stage of the debate, what drove certain judges to be pro-government is a moot point. The only issue that interests Malaysians is that an institution they hold dearly is on the mend.

The Mahathir administration has little choice. It can behave like the only member in a packed public gallery cringing every time a judge rules in favor of justice and marks another chapter in the rebirth of a public institution.

Or it can stomach some upsetting reversals in the courtroom with dignity, and withhold the temptation to reach for the stick.

The second option seems more sensible. It could help the government convince "fence-sitters" -- and they number in the millions -- that the people who occupy Putrajaya are capable of change and reform.

Surely, that victory will be sweeter than any in the courtroom.

-- The Straits Times/Asia News Network