Tuesday, October 14, 2008

All The King's Men...



All The King's Men...

I wonder what it means for the future of this country that Datuk Mukhriz Mahathir, a current UMNO favourite son and most certainly one whom the dizzying heights beckons, has taken the view that matters pertaining to the reform of the Judiciary are not a priority. As was reported in an article in The Sunday Star, the Honourable Member of Parliament for Jerlun questioned the need for judicial reform. He claimed that Malaysia would not crumble without these reforms and, in any event, they did not benefit the Malays or UMNO.

I would have thought that the question of whether the Judiciary and the wider system of justice are in need of reform is moot. Even without the acknowledgment by the Government earlier this year that steps had to be taken to restore confidence in the Judiciary, it is glaringly apparent that all is not as it should be. Standards of judicial competence are worryingly low as is public certainty of the integrity of the judicial process. This latter aspect is no longer a matter of speculation, delusion or political spin; the conclusions and recommendations of the Royal Commission of Enquiry on the VK Lingam video made things explicitly clear: things need to be sorted out.

Matters of judicial competence and integrity impact across the board; they are neither race nor political-party specific. Bad or skewed decisions hurt the wider legal profession and the nation as a whole as much as the litigants involved. One of the biggest difficulties practicing law at the present is the lack of certainty in the law, in part for there being a slew of decisions that have been adjudged without due regard to principle or precedent. In becoming precedents themselves, these decisions have undermined the foundations of not only the legal system but also the system of commerce that it supports. Commerce being wholly dependent on the certainty that only an effectively functioning legal system can provide, the current state of affairs is anathema.

It is for this reason that when entering contracts pertaining to Malaysia, many a commercial party now take pains to stipulate that the law of the contract is not Malaysian law and that dispute resolution is to take place outside the country. That is a cause for great concern, one that we have ignored for far too long to our own detriment. A weak system of justice does no favours for the country in which it exists; it is a sure path to failure for driving investment away, much as we are currently experiencing.

Is this not a matter that affects the Malays and UMNO as much as the rest of us?

This is not just a matter of our all being Malaysians and having a common future. Malays are as much litigants before the courts as any other Malaysian. They are as involved in business and corporate deals as much as the next person is, even more some would say. A cursory perusal of the law journals would show just how far, just as they would the fact that they accuse, or are being accused, of cheating and breaching duties, or murder, rape or theft, just like anyone else. UMNO itself is capable of being dragged into court just like any other society and has in fact been there before.

Surely a stronger, independent and more competent Judiciary would benefit these quarters, as much as they would everyone else? After all, justice is supposed to be blind.

I think Datuk Mukhriz Mahathir has much to offer this nation, in parliament and outside it. His reasoning in this instance is however sorely misconceived. The said article suggests that he has formed the view that the reforms are an expression of anti-Mahathirism, notably that of Datuk Zaid Ibrahim. Though I will not speak for the former Minister in charge of legal affairs, he is more than capable of doing that for himself, I will say that the potential UMNO Youth Chief may have mistakenly confused an articulation of the need for reform with a personal attack on Tun Mahathir.

The call for reform started long before Datuk Zaid Ibrahim made headway in UMNO. It was prompted by the serious consequences of the 1988 attack on the Judiciary and the Rule of Law. Many in one form or the other, including the Judiciary itself and great legal luminaries such as His Royal Highness Sultan Azlan Shah, have taken it up. Their message is clear; something needs to be done.

The Malaysian Judiciary was once respected throughout the Commonwealth, it no longer is. Its foundations have suffered a beating from the shockwaves that emanated from the events of 1988. The testimony at the Lingam Commission hearings showed how much they still reverberate and, for that, how precarious the position of the institution is.

Is it in danger of collapsing, taking the nation along with it? Only time will tell. The question for us all, Datuk Mukhriz included, is whether we want to wait to find out.

(Malay Mail; 14th October 2008)

MIS

17 comments:

Anonymous said...

A corrupt judiciary is like the proverbial goose. It goes on laying golden eggs for UMNO, so why slaughter it?

Faesop's Able

Anonymous said...

malik,

at times we dotn have to be apologetic to him. what has mukris gotta to offer? his dispositions are no different from the rest of the UMNO aspirants except that he comes from an influential stock.
yes, i see nepotism and unless and until he proves himself to be able to see beyond the narrow rhetoric of Malay and UMNO there is no reason for view otherwise.

Damansara said...

Saudara DISQUIET.

YOUR STATEMENT: ‘Royal Commission of Enquiry on the VK Lingam video made things explicitly clear: things need to be sorted out’

Saya ada EMPAT soalan;

SATU
Apa sebenarnya keistimewaan Salleh Abbas kalau benar perkara bising kerana kerja membaikpulih istana pun nak dijadikan isu sampai menghantar surat kepada semua raja-raja?

Bukankah ini satu sikap tidak matang serta kebudak-budakan? Atau seseorang perlu berperangai seperti ini untuk menjadi Hakim Yang Bijaksana?

Atau apakah saudara berpendapat Mahathir berbohong?

DUA
Suruhanjaya Diraja yang membicarakan Salleh Abbas diluluskan oleh Agong tapi Suruhanjaya yang baru hanya seperti membicarakan pasal Mahathir.

Soalannya; Apakah Agong tersebut lemah, bodoh dan dipaksa mengikut telunjuk Mahathir? (Hello, you are talking about Tuanku Sultan Johor here!!)

Kenapa tidak disiasat dakwaan Mahathir secara menyeluruh bahawa Agong sebenarnya marah kepada Salleh atas beberapa perkara lain?

Agong tersebut masih hidup, mengapa Tuanku tidak ditanya?

Atau masyarakat undang-undang yang bijaksana sememangnya tidak berminat dengan kebenaran yang sebenarnya?

Atau apakah Suruhanjaya ini yang mengikut telunjuk Zaid dan Bar Council? Apakah Suruhanjaya telah mencapai matlamat dengan jayanya bila ‘mendapati’ Mahathir bersalah? Apakah itu tujuan sebenar?

TIGA
Benarkah Suruhanjaya ini mengatakan, something like this; Jika seseorang itu mempunyai sebab untuk membuat salah, maka dia mesti tentunya telah melakukan kesalahan?

Ini undang-undang hutan mana?

EMPAT
Mengapa sikap Justice Chin tidak dikomen oleh Bar Council, dan malah dikatakan ‘appropriate’ oleh Zaid?

Apakah itu tatalaku Kehakiman Standard Piawaian Bar Council? Mengapa masyarakat undang-undang senyap membisu?

Saudara, saya bersetuju bahawa kita perlu membuat perubahan jika kita ikhlas dengan situasi yang sebenar.

Tetapi jika kita hanya DISQUIET secara berpilih serta menidakkkan hak orang yang kita kata jahat; maka mana perginya nilai profesionalisme dan maruah kita?

Kita jangan berselindung disebalik Jubah dan Badan Professional kita.

Jangan kita hanya tahu melaungkan Keadilan tapi lupa MENGAMALkannya.

HAK DAN KEADILAN UNTUK SEMUA

fisher said...

dear malik,

when a man makes a statement, he makes a stand on issues that relevant to his beliefs. one has to look at statements made to gauge the values held. judicial reforms are necessary in order that we move forward to justice for all and sundry for this is a good thing. when the honourable mp from jerlun rejects such judicial reforms, then what are the reasons for his stand? could it be that such reforms inevitably uncover the powers that were responsible for such transgressions?
our nation continues to be held hostage if there is no will amongst all peoples of our land to stand up against such travesties. the rakyat in the cities and in the 5 states and 1 ft have made a start. we pray that many more of our fellow citizens apart from the 5 states and 1 ft will continue the transformation and rejuvenation of our country, come ge 13.

Daniel said...

Excellent column. Lingam blew things out of the water, but lawyers every day face postponements and delays and missing files and hours standing waiting to cabut dokumen.

peng said...

A filial son carrying on the father's legacy, that's all I can conclude. Seems like no one is going to get the reforms ahead. It's all up to us people to decide in the next GE.

Anonymous said...

"His reasoning in this instance is however sorely misconceived." Surely a grown man - much less a politician - can say something about the objective merits of reform, quite apart from the related slurs against his father. To expect any less of the MP e.g. calling it a 'misconception' is uncharacteristic of you. Why?

Anonymous said...

Dear MIS,

Another great piece, as always.

I can't see why those in power would want a strong and independent judiciary. After all, it serves their purposes best when law and justice continue to be applied in a rather flexible manner.

Best regards,
CPK

Joe Rakyat said...

REJECT RACIST POLITICIANS, REJECT THE RETURN OF MAHATHIRISM, REJECT ISA — RETURN INDEPENDENCE TO OUR EXECUTIVE, LEGISLATURE, JUDICIARY & MEDIA.

Malik, my concern is that since Mahathir became PM until today, the separation of powers needed for a true democracy in Malaysia has been compromised. Our executive, legislature, judiciary and media are supposed to be independent but thanks to Mahathir, all kena meliwat and now UMNO has one ring to rule them all. Today, there are very few checks and balances, hence all the corruption and scandals.

I think the bigger threat the Rakyat needs to be aware of is the real possibility of Mahathir coming back and ruling by proxy via Najib. Then all bloggers will be in Kamunting, no joke. Pls warn the Rakyat.

Longer term, the Rakyat will only benefit if there is a return of independence to our executive, legislature, judiciary and media. The best scenario is to have a two party system based on issues, not race, that has equal power in parliament. Only then will there be checks and balances, and good governance.

If Pakatan Rakyat comes to power and there are no checks and balances in place, we can expect another BN-like rule, because history shows that power corrupts and absolute power corrupts absolutely. Humans will be humans. Therefore, the Rakyat needs to become more proactive and always keep pressure on their MPs to be accountable, honest and proactive in protecting the rights of the people.

The first step for the Rakyat is to FREE RPK & ALL THE ISA DETAINEES. JR

Pratamad said...

Take the Jerlun MP's words as benchmark of UMNO the party - it is only interested to safeguard it's power for as long as possible, at the expense of the country and rakyat in general. The current sorry state of Judiciary is the making his father and UMNO, and this stand of his is merely to prolong their selfishness.

His naivety lies in his thnking that UMNO and himself do not need the Judiciary to safeguard justice for them, with the assumption that they will continue to be in power. We shall see...

marjie said...

I am afraid, very very afraid, that Tun M will use his son as a mouth piece if he fails to get a position (a powerful one of course) when he rejoins UMNO....

shah9 said...

Thursday 16th October, 2008.

Every Man A King

"Every man a king. Every man to eat when there is something to eat; all to wear something when there is something to wear. That makes us all sovereign.”- Huey P. Long- 1934

1. The problem with this country is that we have nominal and displaced persons on the fringes of mainstream society that try to make a name for themselves by taking pot shots at upright citizens. Malik Imtiaz Sarwar is one such person who hopes to gain some selective notoriety by not only displaying his bias for all to see but has also resorted to personal attacks against Mukhriz Mahathir.

2. In his piece entitled ‘All The Kings Men..” published by the Malay Mail (14th October 2008) he has stooped to cast negative aspersions against this grassroots leader and newly elected Member of Parliament and acts in a manner that makes one believe that he is an elected official or one whose views are much sought after.

3. The writer’s thoughts about whether the judiciary and the wider system of justice are in need of reforms are moot is but his personal opinion. There are many other members of the public, legal practitioners and politicians alike who hold a different view to this subject.

4. Mukhriz Mahathir’s opinion as reported in The Sunday Star and referred to by the writer is a practical and realistic assessment of the whole issue. To put it into context in the bigger picture of nation building; the Malaysian judiciary has long been established and put into place and followed before and after the second world war .This system has been severely tested and has gone through trials and tribulations heretofore. This system has yet to crumble.

5. Our judicial system in its trials and tribulations throughout the years has met up with various “incidences” which has created unhappiness, particularly in respect of the 1988 judicial crisis- which the bar council and disgruntled lawyers have unilaterally spun as a crisis. It was actually a wind of change for the better under the prevailing circumstances during the premiership of Tun Dr. Mahathir whom had the unpleasant task and had to accept the unpopularity of disciplining the rebellious judges who had abused their positions thinking that they are all supreme– over and above the law- believing that no action can be taken against them.

6. It is undoubted that the judiciary in this country has carried out its functions in accordance with the laws of the country. We do not encourage Kangaroo courts or vigilante justice. Furthermore, there is no form of anarchy whatsoever in this country.

7. The writer then makes his case that the need for judicial reform is not due to speculative nor political spin but then makes the mistake of resting his ill-informed and biased views on the so-called “conclusions” of the Royal Commission of Enquiry on the VK Lingam video. The writer perhaps is unclear of the fact that the conclusions and recommendations made by the panel of enquiry was merely an opinion notwithstanding the fact that the panel itself were absolutely motivated by bias and a deviant agenda for reasons known only to themselves and to disrepute and smear Tun Dr. Mahathir Mohamad. This is not to mention the fact that the Royal Commission of Enquiry had acted out of their scope of terms of reference and stretched their minds and hands to the very limits to drag the former prime minister into the controversy by mere speculative findings. The writer has further chosen to ignore the fact that Loh Gwo Burne-the man responsible for making the video clip said that “the move to make public the Royal Commission report is politically motivated”...”and that he disagreed that investigations should include Tun. Dr. Mahathir Mohamad-“because he was victimised by the people who surrounded him and tried to influence his decisions.” (The Star,17/5/2008).
8. Perhaps the writer maybe interested to know that recently Justice Ian Chin, whilst sitting on the bench before hearing an election petition had made derogatory and callous remarks about Tun Dr. Mahathir as a sitting judge. It is common knowledge that judges should not and must not place themselves in a controversial position and abuse their powers. Strangely, a tribunal was not set up to try Justice Ian Chin for misconduct. Where was the writer then? At court with the King? In the event that Justice Ian Chin had been tried for misconduct; is the writer going to say that this is another judicial crisis? Is this the sort of reform you are looking for?
9. Furthermore, Anwar Ibrahim, has been charged in court for the alleged offence of sodomy, so far, things are going his way and for his counsel and all praise is levied on the presiding sessions judge. Had the situation been in reverse, it would have made a good bet to say that the writer, bar council and opposition parties would have alleged that there is bias and injustice. One cannot blow hot and cold at the same time... The writer should accept the system as it is, as long as everything being equal; it is a fair system.
10. The writer also conveniently forgets that the majority of the members of the bench are appointed from the judicial legal service and this includes His Royal Highness the Sultan of Perak who was then the Lord President of the Federal Court. The so called reforms that are being peddled by the writer have in fact put the judiciary under absolute attack, causing apprehension and putting the Judges and judicial officers in a distressing and uncertain future. The writer and bar council is creating a real judicial crisis now!
11. The writer also fails to look at the practical and realistic side to the issue. To the inexperienced it is indeed forgivable to fall prey to the mere rhetoric of reform. Not that we know exactly what so-called reform is intended other than grand pronouncements as reported in the local broadsheets. To reform and establish a system-it is not something which is done overnight. A lot of care and study has to be taken into account before whatever so-called reforms can be implemented. Perhaps what is required are adjustments that maybe made to the judicial system in terms of discipline, accountability and increased efficiency in the administration of justice as a precursor-before any reform can be looked into. It is better to be with the devil you know than the devil you do not know. For we do not know if these so-called reforms if at all they are reforms, will work for the benefit of not only the judiciary but also the Rakyat and members of the legal profession.
12. It seems to me that the so-called reforms are nothing less than political rhetoric to include the bar council in the process of selection and appointment of judges. The bar council which has for so long been sidelined now seeks to usurp the powers of the executive by cheering on its minions to remove the powers and prerogative of the prime minister and the Rulers in judicial appointments. This stripping down of the functions of the prime minister is supposedly justified based on the sanctity of the model known as trias politica or the separation of powers as propounded by Baron de Montesquieu. This is another fallacy that the writer may or may not truly believe in for in no country in the Commonwealth system is a prime minister precluded from exercising his powers in the appointment of high officials – judges included. An even more extreme example would be to look at the United States – where the President appoints Supreme court judges and where Public Prosecutors stand for elections with those candidates who are in line with current political thought being elected to office.
13. The writer should instead thank his lucky stars that Malaysia has not taken a page from Singapore, when MM Lee Kuan Yew slammed the Singapore Law Society (SLS) and diminished its role. Its past President, Francis Seow was detained under the Internal Security Act in a face-off with the Singapore government. Hitherto, the SLS and practising lawyers hardly make any comments on sensitive issues and refrain from playing politics.
14. If at all something is to be done with regards to the judiciary and as a practising lawyer I would to a certain extent agree with the writer that the standards of judicial incompetence are worrying. The writer whom I believe is also a practising lawyer should very well know that judgements given by judges are subjective, and it could be right or it could be wrong but there are legal avenues as provided for to seek an appropriate remedy by way of an appeal in the higher courts.
15. The writer also seems to rely on Zaid Ibrahim (former de facto law minister) to strengthen his arguments. For the record Zaid Ibrahim is hardly a maverick but a total political failure. He has prior to his appointment as a senator I believe, with the blessings of the outgoing prime minister and the bar council- due to the disastrous election results for the BN in the last election, used this present real judicial crisis to resurrect their political fortunes with the concurrence of the bar council and to delve into history of the 1988 judicial “incidence”. This whole saga has not benefited anybody the least except to propagate and popularise Zaid Ibrahim (ex-back door minster). Nobody knows really what reforms he intended to carry out in the first place. In this regard, the writer needs to be reminded that the outgoing PM and Zaid together with the bar council held a dinner in honour of the rebellious judges with the sole purpose to hit back at Tun Dr Mahathir and attempted to humiliate this great statesman. The act of paying compensation to the rebellious judges is an ultra vires act and it involves public money which was paid by the government not only for the dinner but also for the said compensation. No country in the world particularly a Commonwealth member country will resort to such an ultra vires and unlawful act.
16. Overall, it would appear that the writer is displaying his frustrations by condemning the judicial system and playing politics-while desperately trying to project himself by making personal attacks against greater individuals such as Mukhriz Mahathir and Tun Dr. Mahathir Mohamad.
17. Mukhriz Mahathir at least has thrown his fate together with grassroots Umno members and the ordinary citizens of this beloved nation. The Rakyat of all races, class and creed have thrown their support behind him. As far as I am concerned, figuratively speaking-Mukhriz Mahathir treats every single Rakyat and fights for them as if they were a King.

Imran Imtiaz Shah Yacob
Practising Lawyer

aiyomanaboleh said...

Ya, most appropriate title. Maybe it is a good idea that KJ wins the contest.

Is UMNO taking the old man back? After what he has done during the election, calling for people to vote opposition, they should shut him out if they have any inkling what having principles is all about.

Malik Imtiaz Sarwar said...

Response to Shah9/ Imran (I made this comment on Imran's blog):

Encik Imran,

thank you for having taken the time and effort to write this piece. I was hoping you would be able to contribute a piece to Project Malaysia (www.projectmalaysia.org) which is currently looking at the administration of justice. Your insights into whether reform are needed and, if so, how this reform is to be achieved would help us all better understand the matter. That is the aim of the initiative after all.

By way of clarification, I have nothing personal against Datuk Mukhriz. I have had the pleasure of dealing with him professionally and meeting him socially and, as I said in my article, I think he has much to offer this nation. I had not intention of personally attacking Datuk Mukhriz.

As for bias, I may not have been clear. My views are not based on what it is the Royal Commission concluded only or on Zaid Ibrahim's position. There is a wealth of opinion which points to the need for reform.

I am further not involved with the Bar Council or any of its sub-committees and have not been for some time. I too have my doubts about making the heads of the bar associations members of the proposed commission. In my view, the commission should be independent in the truest sense. I think the UK model is a good one.

I agree with Dharan Sea that we should be looking forward and looking to strengthening the rights of ordinary citizens. My view is that strengthening the judiciary would allow for this, but this is said on the basis that there is a need for such strengthening in the first place. I have publicly stated this to be my position at various forums in which I said we should look to the future. Though I do believe that some measure of reconciliation was needed for us to look to the future, the events of 1988 are relevant for appreciating context.

I hope you will are able to contribute a piece to Project Malaysia. A different viewpoint is always welcome.

Malik Imtiaz Sarwar

Anonymous said...

Malik,
the plain simple truth is that this upstart wannabe is trying to divert attention to judicial reforms for his father. That grand old man is really afraid that his days will be numbered once reforms starts.He has alot to answer to the people.

Hamzah said...

bapak borek anak rintik :-)

to Ketuanan Rakyat!

rocky said...

D.Mukhriz is his father's boy and he is in politics to defend his father's legacy it seems from how he goes about it. The man should know that a good clean judiciary is good for all regardless if they are Malay, Chinese or Indian.What does he mean is not good for Malay and UMNO.Why bring race into this? what does Islam say about justice?