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