http://www.tranungkite.net - Pak Lah takes issue with Anwar Ibrahim on the judiciary's independence

DATO' SERI ANWAR IBRAHIM'S CUTTING remarks, after the Court of Appeal turned down his appeal for bail this week (21 January 2004) and his appeal against a conviction for sodomy, about kept judges and of a judiciary beholden to political pressures, struck home. The three judges should have struck him down and charged him for contempt of court. Instead, they walked out. The judiciary has kept silent on that extraordinary scene. If it had to respond, it should have been the three judges or, even, the chief justice. But the Prime Minister, Dato' Seri Abdullah Ahmad Badawi, did, which raised more questions than answers. In his defence of the judiciary, he stuck to constitutional and judicial principles, not how the judiciary is or could be independent when its chief justice, or Lord President as he was known then, was drummed out of his own court for believing in its independence, and judges are not promoted, on political pressure, because they are too independent, or others are rushed through the ranks to the highest positions for no reason than they are pliable and respond to what the Prime Minister wants, and a chief justices goes on holidays with his favourite lawyer, when they have appeals pending in his Court.

The jailed former deputy prime minister has decided he cannot expect justice in a Malaysian court, and reacts politically. He called the three Court of Appeal judges spineless and worse, and on Pak Lah to "stop this charade" and ensure the separation of powers. He was not addressing the judges or Pak Lah but to all Malaysians, fed up with being held to ransom by the Executive, Parliament and the Judiciary. The judiciary could not respond to it. If it did, it would have to cover up a thousand lies it allowed so Dato' Seri Anwar could be convicted. Several surfaced during the Court of Appeal. The prosecution's case of sodomy rested on one in a condominium which, on the day it allegedly took place, had not been built. The judges browbeat Dato' Seri Anwar's lawyers and convicted several for contempt of court. Let us not mince words about it: if Dato' Seri Anwar is guilty as charged, he deserves the punishment, and more. But the prosecution was eager to manufacture evidence, and the judges only too eager to accept so he could be convicted. Every impediment is put in his way so he would be denied justice.

Nothing changed when Pak Lah succeeded Tun Mahathir Mohamed on 01 November 2003. He says, as Tun Mahathir, he does not question the judiciary on any matter before the Court. If he believes in the independence of the judiciary as constitutional and political reality, why does he belabour the point? If it is, it is. But it is not, and gets a wider political airing than Pak Lah is comfortable with. With reason. He was at the meeting at the Putra World Trade Centre, after Dato' Seri Anwar's arrest in September 1998 and before he was appointed deputy prime minister, to destroy and humiliate his predecessor politically and personally. Tun Mahathir was not present. That is not how he operates. He is a consummate politician. He throws a stone, and lets the blame fall on others. Pak Lah's stirring words on the judiciary is more believable if he can say firmly and decisively that he was not part of the UMNO cabal that faked a videotape of Dato' Seri Anwar engaged in sodomy. Can he?

Under the Malaysian constitution, the judicial independence is guaranteed. It should regulate itself, and deliver judgements in law, not on political or other pressure. The judges are carefully vetted before they are sworn in. The Prime Minister comes in to recommend them to the Conference of Rulers for appointment. Their promotions are decided not by political connexions or desire but that they would be asset in the higher courts for their legal brain, their intellectual prowess, and strengthen the judiciary and impart a solidity to the system that gives it its independence. The less the political interference the better. In India, for instance, once appointed, a judge is promoted according to his seniority of appointment until he rises, if his luck holds out, as chief justice. This is so strictly adhered to that chief justices have held office for less than a month before they retire. In Malaysia, honours are withheld so he knows his judicial independence comes to him at high cost.

Malaysia had a similar system until it was destroyed in the political vendetta against the then Lord President, Tun Salleh Abas. He was brought before an international panel of judges headed by the man who would succeed him if he is found guilty. What is not known is that the judges studied law in London about the same time as a well-connected ally of the then Prime Minister. A coincidence perhaps, but in the light of judicial persecutions since, including that of Dato' Seri Anwar Ibrahim, unlikely. It destroyed the much vaunted judicial independence Pak Lah now talks about. Just as Dato' Seri Anwar is persecuted for his political naivety in wanting to force Tun Mahathir to resign as Prime Minister, so was Tun Salleh for his decision, which he told a senior government official who travelled with him to Mecca, about his plans to call for a full court to decide on a politically contentious issue. He was drummed out. When the chief justice does not have control of his court, what judicial independence are we talking about? What happened to Tun Salleh is enough for any chief justice to think twice and more before he exercises his judicial independence as he is sworn to. With Pak Lah coming in to bat for it, he has made it decidedly political. As Dato' Seri Anwar wanted.

M.G.G. Pillai
pillai@streamyx.com

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Terbitan : 25 Januari 2004

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