Despite the controversies surrounding the Malaysian judiciary this year, the institution remained steadfast in its struggle towards reformation to set right public perception labelling it as corrupted and subservient to the Executive branch.
Events signalling a revamp kicked off with lawyer-cum-politician Datuk Zaid Ibrahim being made a senator and appointed de facto law minister in a move to re-build a trustworthy and transparent judiciary and re-capture public confidence in the judiciary’s integrity, which was severely tarnished by the exposure of the controversial “Lingam video clip”.
The clip, showing senior lawyer Datuk V.K.Lingam in a telephone conversation with former chief justice Tun Ahmad Fairuz Sheikh Abdul Halim over judicial appointments was found to be authentic by a Royal Commission of Inquiry.
To further strengthen the judiciary’s credibility, Prime Minister Datuk Seri Abdullah Ahmad Badawi proposed a change in the process of appointing and promoting judges to a systematic and a more transparent one with the setting up of an independent judicial appointments commission.
On Dec 10, Abdullah tabled for first reading in the Dewan Rakyat the Judicial Appointments Commission Bill 2008 to set up an independent judicial body to manage the appointment of judges of the Federal Court, Appellate Court and High Court, as well as the appointment of the Chief Justice.
The bill, if passed, will take effect at a date to be determined later.
The commission will be chaired by the Chief Justice and will comprise the President of the Court of Appeal, Chief Judge of Malaya, Chief Judge of Sabah and Sarawak and four others to be appointed by the prime minister.
The bill, among others, spells out the function of the commission, which is to appoint individuals as superior court judges based on their experience, integrity and firmness as well as the ability to deliver judgments on time. They must also be fair, of good morality and diligent in managing cases.
Pledges by the prime minister to implement other measures, including addressing the need to set salaries and compensation at the right level, had received a thumbs up from the legal fraternity.
The government also made amends to judges said to have been persecuted in the infamous 1988 judicial crisis, sparked by the then prime minister, Tun Dr Mahathir Mohamad’s tabling of a bill in the Dewan Rakyat to amend Articles 121 and 145 of the Federal Constitution seeking to divest the courts of the judicial power of the Federation.
The six judges — Tun Salleh Abas who was then the Lord President, Tan Sri Wan Suleiman Pawanteh, Tan Sri George Edward Seah Kim Seng, Tan Sri Wan Hamzah Mohd Salleh, the late Tan Sri Eusoffe Abdoolcader and Tan Sri Azmi Kamaruddin — who were sacked for misconduct for allegedly going against the then prime minister’s endeavor, were given ex-gratia payments totalling RM10.5 million.
The judiciary’s top post was taken over last year by Tun Abdul Hamid Mohamad, a no-nonsense man who is strongly against corruption and wrongdoings, after the retirement of Tun Ahmad Fairuz.
Justice Abdul Hamid took to the task of cleaning the judiciary’s deteriorating image which stemed from the video clip incident.
Transformation signifying its independence was also seen in the decisions of judges in court cases brought against the government.
One such case was that of blogger Raja Petra Kamaruddin who has been a thorn in the government’s side with articles published on his website revealing misbehaviour in high places and criticism of Islamic administration and interpretation.
The Shah Alam High Court on Nov 7 allowed his habeas corpus application and ordered his release from detention in the Kamunting detention centre under the Internal Security Act (ISA).
Opposition leader Datuk Seri Anwar Ibrahim, who had long accused the government of “interference” in the judiciary, hailed the decision in his first-round win in the Sessions Court which ruled as invalid the transfer certificate signed by Attorney-General Tan Sri Abdul Gani Patail, who is under investigation by the Anti-Corruption Agency (ACA).
The decision foiled the prosecution’s bid to transfer Anwar’s sodomy to the High Court and the matter is under revision.
The courts also proved that they would not capitulate to the Executive branch in their rulings in election petition cases, where the verdicts were crucial to the Barisan Nasional (BN) government which only won by a simple majority in the March general election.
One such case was the Sanglang state seat in Perlis in which the BN candidate was declared the winner against PAS commissioner Hashim Jasin. Following a petition filed by Hashim, the Kangar High Court declared the seat vacant and the case was brought to the Federal Court which subsequently ruled in favour of PAS.
The same was true in the recent judgment of the Special Court which ordered the Yang Dipertuan Besar of Negeri Sembilan, Tuanku Ja’afar, to pay nearly US$1 million (RM3.5 million) to a bank after deciding that Tuanku Ja’afar should honour his commitment in a letter of credit.
However, the judiciary continued to be pressured with conflicts and uncertainties with the sudden departure from the cabinet of Zaid, the man supposedly given the duty to oversee the judiciary’s renaissance, and the shocking outburst of a Kota Kinabalu High Court judge, Datuk Ian Chin, revealing the existence of boot camps for judges and the appointment of Tan Sri Zaki Tun Azmi, who was counsel to Umno, to replace Abdul Hamid who went on compulsory retirement.
Zaid created an uproar following his action to relinquish his post in mid-September in protest over the government’s use of the ISA on three civilians, which was contrary to his stand that the draconian law should only be used to stem activities of terrorists, communist subversives and those attempting to topple the government by force.
His controversial presence at Parti Keadilan Rakyat’s national congress and his meeting with Penang Chief Minister Lim Guan Eng in Penang, among other things, led to his sacking from Umno.
Zaid, who claimed that he was disillusioned by the resistance he faced in the cabinet when pushing for reforms in the judiciary, later announced that he would not be joining any political party despite intense courting by the Pakatan Rakyat coalition.
Despite this setback, Abdullah gave his word that the implementation of reforms would not be stalled.
Meanwhile, Zaki, upon his appointment, adopted Tun Abdul Hamid’s approach, vowing drastic action against errant judges and giving an assurance that he would not hear cases involving Umno until such time as the public perception of him changed.
He also brought good news to the public and legal fraternity by pledging improvement in the court’s delivery system and the clearing of backlogged cases.
This would certainly help dispel doubts as to whether he could be independent in discharging his duties.
With Islamic law becoming increasingly significant in Malaysia, the 12th chief justice also promised that the judiciary would seek ways to resolve conflicts of civil and syariah law to avert any misinterpretation. Zaki is still not out of the woods as veteran lawyer Karpal Singh has succeeding in getting 57 members of Parliament to discuss his conduct in in the Dewan Rakyat.