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Posted by admin
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Friday, 17 October 2008 13:17 |
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"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
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