Amid the Gloom and Darkness Clouding Much of the Malaysian Landscape.
There is some HOPE yet if more Malaysians in the realm of High Court Judge Yang Ariff Justice Hishamudin Mohd Yunus truly dedicate themselves to doing what they are paid to do -- performning their duties without fear or favour, according to their professional responsibilities, with the primary conscience subsume to the larger interests of The Malaysian Nation and society.
Sunday Interlude this tme around can do with one more Rumination because the Justice delivery system in NegaraKu has come under pretty close scrutiny the past few decades, and it's the little candle-lights of Hope that flower in the gloom that truly lift us up as a community. May we hope these candle lights will blaze into full fires to burn bright and glorious Malaysia's Judiciary that was once our national pride but brutally mangled by less than judicious minds sitting as magistrates, judges and Chief Justices? Oh yes, they have had as ace Accomplices well-placed politcians... as their masters, not the Malaysian people and taxpayers who actually pay their salaries and perks.
MALAYSIAN JUDGE MADE HISTORY
Guest Blogger: KIM QUEK
For the first time in history, a Malaysian judge heavily punished the government for gross abuse of its draconian law – the first big slap on the face of the Executive, long accustomed to unrestrained and unconstitutional persecution of political dissidents with virtual impunity from compliant attorney general and judiciary.
In a judgment that is bound to illuminate the Malaysian judiciary for a long time to come, High Court Judge Hishamudin Mohd Yunus ruled on Oct 18 that the state has violated the Constitution and awarded political detainee Abdul Malek Hussin RM 2.5 million in total compensation.
Malek was arrested by the police under the dreaded Internal Security Act (ISA) in Sept 1998 in the tumultuous days of Reformasi (reform movement) following the sacking and imprisonment of former deputy prime minister Anwar Ibrahim. During the 57 days of detention, Malek was subjected to - in the words of Judge Hishamudin - “vile assault, unspeakable humiliation, prolonged physical and mental ill-treatment”, and completely deprived of legal counsel.
In Mar 1999, Malek filed a civil suit, citing a police special branch officer Borhan Daud, the then Inspector General of Police Rahim Noor, and the government as correspondents.
In his judgment, Hishamudin found no evidence of Malek posing any threat to national security but every indication that the detention and torture was politically motivated arising from Malek’s support to Anwar Ibrahim and his reform movement. As such, Malek’s detention was unlawful, and a violation of his constitution right under Article 5(3).
In hard hitting language, the judge described the defendents’ behaviour as “inhuman, cruel and despicable”. He awarded an exemplary damage of RM 1.0 million “to show the abhorrence of the court of the gross abuse of an awesome power under the Internal Securtiy Act, and to ensure that the extent of abuse is kept to the most minimal, if not eliminated completely.”
In his 41-page judgment, Hishamudin pin-pointed several police officers for breaching the law and concocting evidence. He also expressed displeasure at the Deputy Public Prosecutor for having implicitly colluded with police officers in thwarting Malek’s complaints.
Justice Hishamudin is no stranger to human rights watchers, who have been impressed by his consistent record in delivering independent and impartial judgment - a remarkable feat in a judiciary perceived to often bend to the wishes of the high and mighty, in scant regards to the Constitution. His most notable judgment is perhaps his decision in May 2001 to free two Reformasi activists – N. Gobalakrishnan and Abdul Ghani Haroon – arrested under ISA at the height of repression against the Reformasi movement under former autocrat Mahathir Mohamad.
In the present judgment, Hishamudin’s courageous and righteous act has undoubtedly brought cheers to a nation long dismayed by unrelenting decline in judicial integrity and most recently shocked by the stunning revelation of the Lingam video clip. In this latest scandal, lawyer VK Lingam was allegedly conspiring with present Chief Justice Ahmad Fairuz in a telephone conversation to “fix” judicial appointments, apparently inspired by their personal loyalty to then premier Mahathir Mohamad in 2002. Subsequent events had turned out to tally with the scenario outlined in the Lingam-Fairuz conversation, thus strengthening the credibility of this tape.
Such subjugation of judiciary to political manipulation has in fact been common knowledge, as evident from many cases of glaring perversion of justice whenever the interests of the ruling power so dictate. The deterioration of our judiciary has however hastened in recent years as seen in the rapid promotion of judges of dubious records in a process shrouded in secrecy. Some of these promotions are seen as rewards for having “delivered” in the shameful Anwar trials and appeals.
SKEWED JUDICIAL SYSTEM
A prominent example of this skewed system of promotion is seen in the contrast of fortunes between Justice Hishamudin and Justice Augustine Paul (of the infamous Anwar trial fame). While Paul, newly promoted to high court judge to handle the Anwar case in 1998, had leapfrogged to the nation’s highest court (Federal Court) by 2005, Hishamudin has remained stagnant as a high court judge since 1995, despite his illustrious judicial record. Another example is Court of Appeal judge Gopal Sri Ram, the most senior judge who has made Malaysians proud for his many impartial and courageous judgments, has been by-passed for promotion to the Federal Court 14 times by his juniors since his direct appointment to the Court of Appeal in 1994. Some of these promoted on the express train had stayed in the Court of Appeal for only one year, notably those who were seen to have “delivered”.
The moral of the story in our judiciary is obvious: fortune only smiles on those who are obedient and submissive, but woe to those who are steadfastly principled. Under such a system, is there any wonder why our judiciary has been traveling on a downward slippery way?
While our spirit is buoyed by the Hishamudin judgment, we must temper our joy with the realization that the likes of Hishamudin and Sri Ram are rare gems that numerically could not influence the course of our judiciary. As they say, one swallow does not a summer make. Judicial reform is a long journey, and we haven’t even started yet.
But start we must, as the Hishamudin judgment has already opened our eyes to the immense benefits that a just judiciary can bring to the nation.
JUDICIAL REFORM A MUST
Imagine our courts are filled mostly with judges of Hishamudin’s integrity – from high courts to court of appeal to federal court – and led by a chief justice of impeccable honesty and competence, wouldn’t that be the best deterrent against the rampant breeding of corruption and abuse of power that is raging in every strata and section of our government – the cabinet, judiciary, attorney general’s chambers, police, government departments, anti-corruption agency, election commission, statutory bodies and GLCs (government linked corporations)? In fact, a competent judiciary can act as a powerful agent to cleanse our political and administrative systems of corruption.
Corollary to that, wouldn’t a revamped judiciary bring about a more level playing field for political contests through restoration of citizens’ constitution rights while suppressing similar infringement by the incumbent power? Through such restoration of democracy, we will surely see the natural replacement of the corrupt and the incompetent by the bright and the dedicated to lead the nation.
In summary, a cleaner administration in a more vibrant democracy, served by a competent judiciary, is certainly the right recipe to restore investors’ confidence, which has seen steady decline in the last decade.
Judicial reform is therefore a crucial move that will bring about a turning point in our history - arresting the present decline in government quality, rejuvenating the leadership, while serving as a major catalyst to boost our economy.
It is for this reason that we cannot afford to compromise on our quest for a royal commission of enquiry to look into the judicial rot revealed by the Lingam video clip, as a first step towards full reform.
And you can contribute towards making this objective a reality by supporting a petition to the Yang di-Pertuan Agong to set up such a royal commission. All you need to do is to email your name with IC number to: firstname.lastname@example.org. The full text of the petition can be read at: http://harismibrahim.wordpress.com.