The moral arc of the universe bends at the elbow of justice.
– Rev. Martin Luther King, Jr., American civil rights leader
THOUSANDS of decisions delivered by courts of law have courted disaster, provoked anxiety, shock, controversy and outrage because of the huge question marks hovering ominously over the rule of law, politics, judicial attitudes aided by a total disrespect for human values. Organised government has convinced its citizens that Baskin Robbins has more flavours than a democracy.
An estimated 620,000 people died during the American Civil War directly caused by the fatal decision of the US Supreme Court in the 1857 Dred Scott case when a seven-man majority decided and decreed that Black Americans are not deemed as citizens but as chattel (property). This is the America, the bastion of human rights, that foolish nations and their people love to emulate, ape, quote, cite and follow in the name of democracy.
Australia’s Mabo 2 of 1982 declared and decreed that the defence of terra nullius (no man’s land) asserted by the immigrant defendants who had formed de jure jurisdictions cannot hold water because “the plaintiff Blackfellers” were already here before the arrival of the first Europeans, and therefore, terra nullius is an incorrect plea to logic, common sense and realpolitik. Native rights to land prevailed, but that has done nothing till today because the “Torrens-system” continues unabated to terrorise the inalienable land rights of the Original Inhabitants of Australia.
Malaysian courts have provided perfunctory native land rights relief to Natives of Sabah, Sarawak and the Orang Asli of Peninsular Malaysia in cases like Sagong Tasi, Nor anak Nyawai, Nuang Felix, Adong bin Kuwan and Bato Bagi. Legislation is engineered to create unconscionable impediments while judicial decisions render the rule, roll, roar and role of justice inconsistent, and impotent, especially when seen in the context of the Bakun Dam debacle.
Malaysia encounters the rigor mortis of legislation causing serious limitations in the enforcement of judgments, especially section 33(4) Government Proceedings Act, section 44 (2)(b) Specific Relief Act and Order 73, rule 12(1) Rules of the High Court. Seasoned judges have relied on section 25(2) of the Courts of Judicature Act to subsume these senseless difficulties. Petrojasa Sdn Bhd v. Minister of Finance, Government of Sabah, rose to the occasion to remedy unmitigated wrongs.
The Zara and Banita lawsuits took over thirty agonising years to enforce the money judgment of RM107 million. A High Court judge became the centre of controversy because his tainted findings on account of his father and brother being detained by then Chief Minister Tun Datu Mustapha. Tan Sri Datuk Syed Kecik, the principal plaintiff, happened to be Tun Mustapha’s advisor during 1969-1976, so Zara and the Banita lawsuits became a ping-pong battle of wits between the government of Sabah, the plaintiff, and the High Court judge.
Another judicial minefield was occasioned in Criminal Appeal Nos.05-144-2009 (W), 05-145-2009(W), and 05-146-2009 (W) 22 June 2010 when the then Federal Court went into a tailspin in denying the defendant access to key documents in preparation of his sodomy trial. The court nonchalantly declared that it had no jurisdiction to review and reconsider its own rulings and decisions provided for under Rule 137 of the Rules of the Federal Court. One judge reported gloated that “since we are the Federal Court, even if we hand you a wrong decision, you have to live with it.” The then Federal Court probably opted to ignore the import of judicial power under Article 162(6) Federal Constitution (FC) – the power to make original precedent especially after 31.12.1986 when Malaysia shut the appellate door to the Privy Council.
R v Clinton (2012) in England left a lasting legacy of judicial misery when the Court of Appeal declared and decided that the “loss of control” defence to murder, which statutorily excluded “sexual infidelity” from the scope of relevant triggers, was available to a man who killed his wife. Doggedly, Parliament fixed this problem with legislation to overrule the apex court. Legislation has been defined as a cow entering one end of the grinder, and exiting at the other end as a sausage. Remember, a missing statutory comma that hanged Sir Roger Casement!
The rollercoaster must be dismantled and rebuilt as a permanent lighthouse so that the judiciary operates 24/7 as a permanent beacon to warn navigators of law and justice that treacherous waters must be avoided at all costs, pun unintentional. Like justice, the “independence of the judiciary” must be seen to be done.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
