Monday, March 31, 2008

Of Judges And Contempt

A quotable quote. The excerpt below is from the speech of the then Perdana Menteri, Dato’ Seri Dr Mahathir, on 23rd June 1989 in Parliament when moving the amendment bill that would introduce the now notorious section 8B of the Internal Security Act. This section denies the right to judicial review (except on procedure) and to that end has allowed for arbitrary detention at the discretion of the Home Minister.

Significantly, this amendment was moved after Operasi Lalang during which there were numerous, some successful, high profile applications for judicial review. This included that of Mr Karpal Singh. Some of these decisions led, in part, to the 1988 attack on the judiciary.

The language of the speech is reflective of the views of Dr Mahathir that appeared in the media at the time. One of these articles, an interview that appeared in the 24th November 1986 edition of TIME magazine, is worth reproducing. Dr Mahathir was quoted as saying:

"On the Courts. The judiciary says (to us), `Although you passed a law with a certain thing in mind, we think that your mind is wrong, and we want to give our own interpretation.' If we disagree, the Courts will say, `We will interpret your disagreement'. If we go along, we are going to lose our power of legislation. We know exactly what we want to do, but once we do it, it is interpreted in a different way, and we have no means to reinterpret it our way. If we find out that a Court always throws us out on its own interpretation, if it interprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish."

YB Lim Kit Siang took exception and applied to the High Court for an order of contempt against Dr Mahathir on the basis that the statement, in particular “We will interpret your disagreement”, scandalised the Judiciary by bringing in into disrespect and disrepute. At the High Court, Justice Harun Hashim had this to say:

The Court should not be over-sensitive to criticism. The impugned statement, read objectively, is not even a criticism of the Court far less scandalising it or a threat to the independence of the judiciary. In essence it is the despair of a Prime Minister on the inadequacies of the law and more particularly the officials whose duties are to translate into law the policies and aims of the administration to ensure a more effective government.

Eight days later, on 11th December 1986, the then Supreme Court affirmed the decision of the High Court. Tun Salleh Abas, Lord President (as he then was), somewhat prophetically, had this to say:

…the impugned remarks do not ex necessitate connote, with in the requisite of the strictest burden of proof for proceedings for contempt, an attack on the judiciary in the way suggested by the applicant but rather tend to ventilate, perhaps understandably, the vexation of the executive in not being able to get through some desired objective or end without curial intervention.

Vexation was a gross understatement. Not too long later, a series of events led to the notorious nation wide ISA crackdown and the sacking of Tun Salleh Abas and two senior supreme court justices. These events would herald the commencement of a new chapter for not only Malaysia but also the Judiciary, one that would culminate in “correct, correct, correct, correct” becoming a favourite ring tone.

This is what Dr Mahathir had to say in Parliament (an excerpt):

Tujuan utama pindaan-pindaan ini dicadangkan adalah untuk menentukan bahawa perintah tahanan yang dibuat oleh Menteri yang memutuskan bahawa seseorang itu mengancam keselamatan Negara tidak dipersoalkan di mahkamah. Ini adalah kerana kebelakangan ini keputusan Menteri mengeluarkan Perintah Tahanan telah kerapkali dicabar dan dipersoalkan di mahkamah. Sekiranya mahkamah dibiar menggantikan keputusan pihak Kerajaan dengan keputusan mahkamah, ini bermakna seolah-olah tanggungjawab bagi keselamatan negara tidak lagi terletak kepada Kerajaan tetapi sebaliknya telah dipertanggungjawabkan kepada mahkamah, yang sebenarnya bukanlah ahli dan pakar dalam bidang keselamatan. Keputusan-keputusan dan aliran mahkamah di negara-negara asing yang memainkan peranan campurtangan atau, dengan izin, “interventionist” menggantikan keputusan-keputusan mahkamah adalah tidak sesuai diikuti kerana ia bertentangan dengan konsep perasingan kuasa atau dengan izin, “separation of powers” antara eksekutif dan kehakiman yang menjadi pegangan kita di negara ini. Jika mahkamah boleh menukar atau dengan izin “reverse” keputusan eksekutif, maka pihak eksekutif tidak akan dapat membuat apa-apa keputusan kerana khuatir mahkamah akan menukarkan keputusan itu. Dengan itu pihak pemerintah tidak dapat bergerak kerana menunggu keputusan-keputusan mahkamah serta rayuan-rayuan kepada mahkamah yang lebih tinggi.

***

Everyone, even judges, need to heal from hurt.

It is time to start the process of reconciliation. Apologising to Tun Salleh Abas, Dato' George Seah and the late Tan Sri Wan Sulaiman and to the other judges who were suspended, and their families, is a necessary start to a crucial process.

MIS

12 comments:

Berita dari gunung said...

Bila diusik parut lama, nescaya berdarah kembali, lalu siapakah yang handal sedia merawatnya? Biarkan parut kekal parut.

Anonymous said...

this is somethin mahatir cannot excuse himsef. for he always think he is infallible and his ways is the only way. an independent judiciary must be curtailed for this sole reason. the degenration of the judiciary can only be traced to his hands of doind and the failings in the august institutions are solely attributed to his dictatorial ways.
whatever economic progress brought about him, which is undeniable, has been negated by his failings in the rule of law. the state is suffering from this key deficiency now.

mekyam said...

Without a doubt the process of restoring the credibility and dignity the Malaysian Judiciary cannot be carried out soon enough.

But perhaps it could be launched from something less questionable than what can be interpreted as Zaid Ibrahim's grandstanding.

PRAY,IT WORKS. joe's blog said...

Yes, Justice will be served if not here, then in the hereafter. And I believe God will be MOST happy if we can all be reconciled with each other before death. So step forward TRUE leaders of malaysia, let God's healing grace shine from you. Debate, discuss and find solutions for all our ills. God BLESS you.

Pratamad said...

On the surface, what Dr M said in Parlimen was very convincing words. Given the standard of the lawmakers we have been having, setting aside the fact that they have been acting as pure rubber stamp of BN government, it is not surprising that the MPs went for his amendments. Therefore, while we are starting the healing process, it is also crucial to demand higher standard and independence of lawmakers so that such episode will not repeat in the future.

Anonymous said...

More reasons to create an impartial free judiciary

Malaysian said...

Mahatir has a scandalous mind. If you don't hoist him to the high heavens, he will demand blood. Typical of Firauns. He had moved against all his Deputies. He had moved against Musa Hitam. He did it against Tengku Razaleigh. Then he went for the neck of Tun Ghaffar Baba and supported Anwar against him. Anwar built a war machine and strengthened his grip on Malay heartland. Then as Mahatir’s days neared, he couldn't stomach a man who was more popular than him yet was only his Deputy. What about when he takes over. "No" screamed Mahatir and fixed Anwar. We know what happened! History has it. Then he looked around and guessed: "Who will pussyfoot me...idolize me...", and then went for Badawi. Two weeks after AAB took, he started screaming and demanding blood and money and projects. Then he said Najib was the best. (We know why). Today he is saying Tengku Ku Li is the best yet we know what he has done to him and what he would do even if Ku Li takes over.


What does this man want? What more can we sacrifice to make him a semi-god? Men of integrity and hard work in their days like Hitam, Baba, Ku Li, Tun Salleh, Anwar and etc paid a dear price because of his unequalled ego, greed and irreligious tendencies. He blames everyone and exonerates himself from blame. Doesn't he know that it takes two hands to make a clap?


Dear Mahatir, you are dispensable. This nation doesn't need you anymore. It has its sons and daughters who are young and who are ready to salvage the charred remains of the nation you burnt because of your lofty greed, ego and condescending behaviour. Just rest and enjoy your sunset days.

Gan said...

What can you expect out of Mahathir when he "Sudah lupa ... "

DIASPORA said...

Those of us who had lived through most of the last century may often think of how life was during the days of our beloved Tungku and how things changed somewhat like Zimbabwe nearly 25 years later.

Every known restriction was imposed on everyone so that the leader and his cronies could sap the tree to its fullest. Treasury Regulations and Financial procedures; Tender procedures; Service Directives were all thrown to the wind whilst the Elite went on a spree that seemed to have no ending.

The Civil service became corrupt when the servants folowed the acts of the masters; the judiciary became so pliable that it had to come to grief with the "correct. correct. correct...." debacle which for better or for worse has put the judiciary in the lowest rung of respect. Now citizens fear if going to Court would be subjected to the fate of their judgments being written by second hand personalities. The Law has lost its lustre to the lasting shame of the Judiciary and the Land.

Someone has to tell past leaders to stop interfering with Pak Lah and let him have some breathing space to get moving on. Everyone of every ilk is attempting to jump the bandwagon to become PM and of course Ministers but forgetting that the 'looting' days of yore may not be repeatable to the extent it was done before.

The 'ultimate' credit for better or worse must go to Pak Lah for having given the freedom and breathing space to Malaysians to embark on the venture that has brought the sunlight into our lives. History certainly will not judge him wrongly and he will enter the Halls of Fame in a fitting manner than most other Leaders that we have had and are yet to come. Pak Lah's softness probably was his weakest link but in that softness He has done much to heal this Nation and rid it of so many looters and cronies.

Gan said...

I think Diaspora's statement "Pak Lah's softness probably was his weakest link but in that softness He has done much to heal this Nation" is spot on !!

If it was any other tyrant - they would have invoke (or twist) any law or create any incident to deny the DAP/Keadilan/PAS's win.

Thank you Pak Lah for giving Malaysia this chance to become one.

rational thinker said...

i can't believe that he used the excuse "separation of power" to subjugate the judiciary under the executive/legistative branch. what a load of crap.

apologize mahathir!

Sharing said...

Professionalism & Ethics had gone wrong!
-------------
Laws are not made by MHT or anyone alone!
Legal professionals started the draft to go through parliament and even Agong!
At least Bar Council, many lawyers outside and inside Parliament should have voiced when Laws are started or amended with Bias to go.
How many legal professions had raised their voice?
Or, how many legal professionals are drafting without heart & soul!

The Systems are out of control or being manipulated as Parliament has Legislative, Executive and Monitoring powers in one hold.
When Judiciary is not independent it gets worse!
Worse again because Ethics does not work!

It started with Judges being administratively abused during the time of MHT.
With cronies running the Administration. Judges started to abuse the Judiciary!

To those being abused by MHT and those in the Parliament being silent to what MHT had bully should give the apologies to all Judges and their families concerned!

To those being bullied by the Judges and Lawyers during the Darkness of the Judiciary, and again those silent in Parliament, apologies to those judiciary victims (including Anwar, I suppose) should be called forward!!

Has light come so that it's time to call?
I doubt!
Or, how come a Judge can ask Clients to do their own case when Lawyer not doing their job and not attending court?
Filing Bundle of Document without even fixing Facts & Issues?

Had legal profession been independent or just as political as any profession or Parties?

If each individual and Professional do not have Ethics in their heart and soul, it is a social problem that cause it or allow the bully to happen!!

The roots of rot is far deeper than what we can see or realize!!