Good judgment comes from experience, and a lot of that comes from bad judgment.
– Will Rogers, American satirist
Malaysia in the 1980s witnessed convulsions to constitutional monarchy, parliamentary democracy and the independence of the judiciary when a Machiavellian-inspired prime minister believed that “if the acts accuse us, let the results excuse us”.
Unfazed, this prime mover-zealot drove the law into disrepute. Frank Sinatra’s “I did it my way,” reportedly inspired him. He almost became the principal oracle of law. “Zeal without knowledge is fire without light,” warned Thomas Fuller.
In 2007, a Royal Commission of Inquiry (RCI) investigated illegal intervention into the judicial appointment process that reportedly occurred in 2002. The gathering storm failed to get voters to demand direct elections of judges.
The RCI viewed a widely-circulated eight-minute video clip allegedly featuring a lawyer discussing promotions and factionalism among senior judges with a former Chief Judge, and a Malaysian tycoon. Caught in the act!
This former Chief Judge deservedly met with objections from the Conference of Rulers to non-renewal of his tenure. The senior lawyer allegedly boasted in the video clip that he had the tacit nod from the prime minister.
This disgraceful and shameful court in the act went unpunished, quickly to be forgotten. The powers-that-be doggedly ignored the supreme law of the land (Federal Constitution) concerning the authority of the RCI.
“The justice system is being abused and brought to disrepute through the frantic acts and numerous attempts to postpone the hearing of Datuk Seri Najib Razak’s appeal, says the Malaysian Bar,” declared The Star in August 2022.
“Chief Justice Tengku Maimun Tuan Mat says the judiciary was ‘unjustifiably painted as the villain’ over the Attorney-General’s Chambers (AGC) decisions to conditionally discharge accused persons,” reported another news outlet.
Only the naïve would aver that politics has not pervaded or affected the judiciary. The ‘independence of the judiciary’ has become a jocular epithet. One Court of Appeal judge, armed with an affidavit, was permanently chastised for publicly exposing judicial corruption!
The “fix-him” jurisprudence is not very subtle or surreptitious. There is a deep devotion and undying loyalty to the “unfix-him jurisprudence“ courtesy of puppet-masters constituting the deep state.
A Malaysian court in July 2020 ordered former Prime Minister Najib Razak to settle 1.69 billion ringgit ($397.41 million) in unpaid taxes over seven years while he was still in office, according to a report by national newswire Bernama.
Assuming it’s not fake news, why didn’t the LHDN demand the taxes when Najib was still in office? Why wait until he’s convicted for a criminal offence? Is the law walking around like a hammer looking for an exposed nail? Caveat: we are not condoning wrongdoing.
Proprietary estoppel became the bearded lady of the judicial circus when Adorna Properties declared its fatally flawed spin on indefeasibility of land title. Ten years later, in 2010, the Tan Ying Hong undid the travesty of justice while highlighting fraud affecting the registration of land titles.
The question of “leave to appeal” is another unwelcome self-inflicted judicial shackle. A trial court delivers a judgment. One party is dissatisfied. He must “seek” permission to appeal to a higher court. Justice or “just us”?
If anything, appeals constitute the ‘right to associate’ under Article 10(1)(c) Federal Constitution. Statutes must yield to the Federal Constitution – Othman Baginda vs Ombi Syed Alwi Syed Idrus [1981] 1 MLJ 29.
There is no doubt that an appeal is a subtle form of contempt of court where the findings and judgment of a trial court cast uncertainty, inconsistency and doubt requiring a higher court to “retry” the case. Judicial review is a faithful remedy. Equity must reign.
The unnecessary slap to substantive law is the Civil Procedure Code which juridically offers an agonizing road map to plan and chart your case. No tolerance for slips, hiccups or mistakes when submitting written documents.
In Aw Ngoh Leang v Inspector General of Police & 2 Ors (1993) 1 AMR 201, the then Supreme Court issued a writ of habeas corpus just because only one copy of the Form to make representation was given to the detainee when the regulation says that two copies should be given!
The waft and wave of politics in the judiciary is captured in “The Politics of the Judiciary”, by Professor John Griffith: “Neither impartiality nor independence necessarily involves neutrality. Judges are part of the machinery of authority within the State and as such cannot avoid the making of political decisions. What is important is to know the bases on which these decisions are made (Griffith 1991, 272).”
Courts, with the power to interpret the compatibility of legislation with the written constitution (the classic definition of judicial review), can remain apolitical. Article 162(6) Federal Constitution directs and instructs judges having to tackle hard cases that legislation overlooked.
After all, the legislature has the power to overrule binding court judgments with new legislation to prevent a “juristocracy” (Hirschl 2004) if a perceived “judicialisation of politics” threatens the security of a nation.
The judiciary has to cruise beyond the thundering clouds of corruption, cronyism and selective prosecutions. It must remain an ultra-strong bulwark and an indomitable barrier to political terrorism.
Courts of law should not tolerate the court in the act syndrome. Courts of justice must replace our palaces of justice.
Is the Madani government still synonymous with Reformasi? The people and the Opposition watch and wait.
The views expressed here are those of the columnist and do not necessarily represent the views of the Sarawak Tribune.
