A compromised judiciary

Martin Jalleh reports on a year when the judiciary sank so low that it shamelessly allowed itself to be intimidated, its independence and impartiality to be interfered with, and its integrity to be reduced to ignominy.

In 2010 the public continued to view the judiciary with increased suspicion, scepticism and even scorn. The reputation of the judiciary was sullied irreparably by judicial shenanigans and court jesters.

A vast majority of Malaysians believe that it was used by the ruling elite to legitimise their power grab in Perak, persecute their opponents (in particular, Anwar Ibrahim), punish dissenters and promote their political agenda, through the perversion of the rule of law.

The public found much courage and wisdom in the respected, renowned and retired Justice N H Chan who grew increasingly furious at how the judiciary which he had served so faithfully had been reduced to a farce.

He shredded into smithereens Chief Justice Zaki Azmi’s supposed judicial reform and laid bare the judicial sham. He accused judges of putting themselves beyond the pale…just like pariahs”. The CJ remained silent!

Commenting on the Federal Court’s decision not to review Anwar Ibrahim’s application to review its previous decision dismissing his application for disclosure of documents for his second sodomy trial, the retired judge said the rakyat is “stunned by the ignorance of our judges of the highest court in the land”.

He added that the Federal Court’s approach to Rule 137 of the Rules of the Federal Court 1995 was “inconsistent” and “dishonest” and “those ignoramuses” were talking “utter nonsense”. Those “inane judges cannot even understand plain English”!

On High Court judge Justice Mohamad Zabidin Mohd Diah’s rejection of Anwar’s application to have the judge recuse himself from further hearing the sodomy trial, N H Chan said that the judge was talking “utter nonsense” and “knew next to nothing about judicial bias”.

In the cases related to the Perak constitutional crisis N H Chan highlighted the “bad” and “perverse” judgments, especially those by the appellate courts, the collective written judgements which were “riddled with contradictions” and how the Perak and Federal Constitutions were toyed with and trampled on.

In the case of Nizar vs Zambry (decision given on 9 February 2010) he called the panel of five Federal Court judges made up of the President of the Court of Appeal Alauddin Mohd Sheriff, Chief Judge of Malaya Arifin Zakaria, Zulkefli Ahmad Makinuddin, Ghazali Mohd Yusoff and Abdul Hamid Embong, “myopic judges”.

According to NH Chan, they “were lost in a quagmire of confused thinking caused by their own incompetence. They found themselves deep in the forest unable to see the wood for the trees. Does this mean that we have a bunch of incompetent judges who sit in the highest court in the land?”

There were other examples of justice compromised, such as the decision on 25 March 2010 of the Court of Appeal to overturn an award of RM2.5 million in damages to ex-ISA detainee Abdul Malek Hussein by the High Court in 2007 and the Federal Court’s rejection on 4 May of Anwar Ibrahim’s application to have Sodomy II struck out.

Terrence Netto of Malaysiakini called the Court of Appeal decision “an exercise of raw judicial power against the weight of legal tradition and evolving sensitivity to human rights…The judges did not confine themselves to points of law but also of fact, which is an overly capacious reading of their function”. The awarding of costs of RM50,000 against the respondent was a “perverse twist”.

The appellate courts showed that they were not only willing to bow to the wishes of the Executive, but they were ever ready to bend backwards to do their bidding. This could be seen in the decision of the Court of Appeal in August in allowing V.K. Lingam and two retired top judges to challenge the recommendations of the 2007 Royal Commission of Inquiry which investigated their roles in allegedly brokering judicial appointments.

Veteran lawyer Karpal Singh criticised the decision as being unprecedented! He added that the Royal Commission makes recommendations which are not bound by judicial review and they should be acted on instead of being reviewed. On 23 September 2010, the AG’s Chambers filed a motion for leave to appeal the Court of Appeal’s decision.

The public fully supported N H Chan’s uncompromising assessment of the state of the judiciary in 2010. They were in sync with his view that there are judges, especially those in the appellate courts, who are “ignorant”, “incompetent”, “inconsistent”, “imposters” and even “idiots”!

It is difficult to be optimistic of the judiciary in 2011 considering that N H Chan has from the events that took place in 2010 pronounced the judiciary in Bolehland — unsalvageable – one which can only be redeemed by a general election!

“Creatures of the government”

The year 2010 – according to public perception – saw the judiciary sink so low as to shamelessly allow itself to be intimidated, its independence and impartiality interfered with and its integrity reduced to ignominy.

Such a view on the judiciary was also shared by former Federal Court judge Gopal Sri Ram who declared that “… the judiciary has become so ‘executive-minded’ and that “the judges have become creatures of the government” (Malaysiakini, 16 Sept. 2010).

Speaking at the National Conference on Integrity in Kuala Lumpur, Sri Ram said: “The judiciary is so anxious to help the executive… and when you bend the law to help the executive, this results in ridiculous decisions.”

He stressed that “since the executive branch is elected by the majority, and as such it represents the rights of the majority, the judicial branch has the duty to protect the rights of the minority”.

He said that “the judiciary has failed in its duty to defend minority rights” and cited examples of the courts reversing decisions through the Federal Court to accommodate the wishes of the federal government.

He indicated that the failure of Malaysia as a state may indeed be imminent given the deteriorating condition of the judiciary since the 1988 crisis, which saw the sacking of a number of top judges.

But Chief Justice Zaki Azmi did not share Sri Ram’s concern. In an interview with The Nut Graph on 26 March, the CJ expressed his deep satisfaction that since the 1988 judicial crisis “the confidence in the judiciary has improved a great deal”! It was the same line used by some of his predecessors!

He called those who criticised the judiciary for its lack of independence “a small group of vociferous people out there, who go onto the internet and blogs and Facebook and all that and make comments without knowing the proper background. Many are not even lawyers.”

But what if a lawyer like Edmund Bon , who is also the chairman of the constitutional law committee of the Bar Council, were to tell the CJ that “the perception that the judiciary is executive-compliant still remains till today” (Free Malaysia Today, 17 Aug. 2010)! Will Zaki believe Bon?

Or will the CJ take cognizance of the blunt and brutal opinions of his brother judge N H Chan who throughout 2010 continued to bring to light how beholden the judiciary was to the Umno-dominated government.

The respected retired Court of Appeal judge had pointed out that the “so-called Perak crisis has brought out a host of cases that showed that the judges gave the impression that they were one-sided. The perception of the people is that they sided with the BN government.”

Surely, one does not need to be a lawyer or a judge to have such a perception and to notice the “creatures of the government” crawling in and out of the woodwork of the Palace of Justice at the Master’s behest!

The pro-government stance taken by the judiciary can also be seen in the courts awarding costs (even in public interest cases) and in certain cases hefty sums, against those who lose in their suits against the government.

Such a move by the judiciary – coupled with the fact that in High Court suits filed by civilians against the government and Inspector-General of Police (IGP) in the last five years only 4.4 per cent of the suits were in favour of civilians – would be a perfect way to discourage the people from taking legal action against the government.

Cowardice in the courts

2010 will be remembered as a year when the Federal Court shirked its responsibility and failed to execute justice by declining to answer burning constitutional questions especially those related to conversion issues.

There were instances when it chose not to make a ruling but preferred to dismiss the case on technicalities instead. There is no better example of this that the Shamala Sathiyaseelan appeal.

Political commentator David Matter gives a succinct and interesting overview of the case:

On Friday, 12 November, five of the nation’s top judges arrived at a fork in the road where they had two paths to choose from. One was to go down a path where they would be faced with the task of answering two very important constitutional questions.

The first question is whether a minor can be unilaterally converted to another religion without the knowledge and consent of the other parent. The second was deciding which prevailed – an order from the syariah court or an order made by the High Court?

The other path was simpler. It would allow a preliminary objection and avoid having to decide anything at all.

In a decision that can only be seen as an abdication of its duty as the highest court in the land and the ultimate interpreter of the Federal Constitution, the Federal Court decided that it would decline to answer what are probably two of the most burning constitutional questions facing the nation today.

The decision in the Shamala case goes to show one thing – the court of last resort in this country is not the Federal Court, but political expediency.

The Joint Action Group for Gender Equality, an umbrella of women’s rights groups, called the decision “a lack of courage”. The Bar Council said that “the Federal Court failed to be decisive and abdicated its role as the ultimate arbiter in disputes involving constitutional questions and jurisdictional conflict.”

The Shamala case is not an isolated one. Respected lawyer Art Harun concurs: “I have lost count of the number of cases which involve inter-faith conflicts arising from conversion and re-conversion of a person from one faith to another – often from one faith to Islam and back to the original faith – where the Federal Court had chosen not to make a ruling, preferring to dismiss the case on technicalities instead.”

In January 2010, Art Harun raised two constitutional questions in a sodomy case before the Court of Appeal. The court declined to answer them. The case was reported in the NST and a former judge using the pseudonym ‘Essdee’ responded in a letter to the editor with the title “JUSTICE: Court should not shirk duty”.

He wrote: “I was indeed disheartened to read the report ‘Court ducks constitutional points in sodomy case”. Firstly, it is the duty of the court to hear and consider every issue brought to it by either party unless it is so frivolous that it needs no consideration. In this case, it cannot be said that a constitutional issue is frivolous. The Court of Appeal should have given consideration and given a verdict either way.

“Secondly, when counsel for the appellant requested a written judgment on why the constitutional points were not answered, the reply by judge Datuk Suriyadi Halim Omar was, to say the least, shocking. He said, after delivering an oral judgment: “We will prepare the written grounds only if the Federal Court directs us to do so.”

“Constitutional issues raised cannot be said to be frivolous in that no reasoning need be given. I wonder what would happen if most judges, if not all, give the same reasons for not wanting to write grounds of judgment? In this particular case, the points raised were important one way or another, and the judge should not shirk his duty.”

Ceaseless contradictions

The cowed judiciary of Bolehland apparently continued to take its cue from the government in 2010. This resulted in courts being riddled with self-contradictions or courts contradicting one another! Below are some examples of the contradictions (C):

C1: Apex court contradicts legal precedents

On 9 Feb. the Federal Court in the case of whether PR’s Mohammad Nizar Jamaluddin or BN’s Zambry Abd Kadir was the rightful Menteri Besar of Perak ignored (and contradicted) the established precedents. set in the Stephen Kalong Ningkan case in Sarawak in 1966 and the Pairin Kitingan case in Sabah in 1985.

Terence Netto made the following thought-provoking comments:

Doctrinal consistency is highly valued in jurisprudential theory… (in which) established precedents can be overthrown only if unique facts enter the vortex of discursive imperatives in which a case is decided. There were no unique facts in the Nizar vs Zambry case.

…the Court of Appeal, last May, and now the Federal Court have decided to ignore the principle of stare decisis and make the notion of judicial precedent a piece of chaff, drifting on every wind of circumstance. It’s the kind of reasoning that makes you think that the law is an ass.

C2: The Federal Court contradicts itself

On 25 February 2010. the Federal Court unanimously decided not to review its 29 January 2010. decision barring Anwar Ibrahim from access to the documents “which would be tendered as part of the evidence for the prosecution” and “a written statement of facts favourable to the defence”, which he is entitled to under section 51A(1)(b) and (c) of the Criminal Procedure Code.

The three-man panel comprising Zulkefli Ahmad Makinudin, Mohd Ghazali Mohd Yusof and Heliliah Mohd Yusof unanimously ruled – and very strangely too – that Rule 137 of the Federal Court Rules 1995 did not confer jurisdiction on the Federal Court to review its own decision.

Aliran president P Ramakrishnan highlighted the inconsistency:

…if indeed Rule 137 denied the Federal Court the right to review its own decision, how do we explain the fact that there had been 10 previous decisions since 2001, presided by four previous chief justices where the Federal Court allowed a review of its own decision?

How do we explain the fact that Zulkefli Ahmad Makinudin had sat on the panel that reviewed the Federal Court’s decision as recently as last month? Did the Federal Court then rely on some other authorities or did it simply override Rule 137?

(On 21 January 2010, the Federal Court, acting on an application by the Chief Justice Tun Zaki Azmi, had reviewed and revised its absurd and perverse decision made a decade ago in the Adorna Properties Sdn Bhd v Boonsom Boonyanit case.)

C3: Elusive consistency

On 5 August 2010, the election court threw out Zaid Ibrahim’s petition to declare the election of P Kamalanathan as MP of Hulu Selangor on 25 April 2010 void. Zaid’s petition could not even get to that initial stage of exposure because an application by Kamalanathan to strike out Zaid’s suit was found by the judge to have merit.

Essentially, the judge found as fatal to Zaid’s petition a failure to furnish details to back up his claims that the poll results were influenced by bribery and corruption. The election judge held that the devil was in the details.

Terence Netto showed how the above ruling was so different in the Sodomy II case:

A similar void, or more accurately, a holding back, of the details – police reports, list of witnesses, medical reports – of the prosecution’s ongoing case against Anwar Ibrahim for sodomy, details that are as a norm furnished to the defence at the start of a trial, is thus far held to have not been fatal to the prosecution’s case.

They say legal doctrine cannot hold up without being buttressed by consistency in the arguments adduced. But in some of our courts these days that consistency is elusive because what is sauce for the goose is not sauce for the gander.

C4: Court differs from Perak decision as Gobind remains barred

In April 2010, in a case between ousted Perak Speaker V Sivakumar and BN assemblymen in Perak, the Federal Court panel of Augustine Paul, Alauddin Mohd Sheriff, Arifin Zakaria, Nik Hashim Nik Ab. Rahman, and Zulkefli Ahmad Makinudin ruled that it was allowed to inquire into legislative proceedings. It departed from the precedent which gives respect to the doctrine of separation of powers.

On 22 October 2010, in a case brought about by Puchong MP Gobind Singh Deo, the High Court ruled that legislative proceedings could not be challenged in court. The constitution was supreme and it could not question Dewan Rakyat proceedings. The decision by the High Court contradicted that of the Federal Court ruling in April.

Martin Jalleh, a well known political commentator, is a regular contributor to Aliran Monthly.

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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