Justice and the Law
In the midst of all the noise emanating from East Malaysia last week, I came across an article in The Malaysian Insider that caught my attention, entitled “Ministers squabble over Judicial Commission”:
The Malaysian Insider understands that the Umno ministers were not in favour of the proposed composition of the commission, citing the presence of former judges or lawyers. They also believed that the commission as proposed could result in the powers of the prime minister to appoint and promote judges being usurped. “The sentiment was that Umno members could not accept the Judicial Commission in the form that was presented to the Cabinet. They support the need for a commission but want Zaid to re-look the commission proposal and come up with some changes,” said a government official, referring to Datuk Zaid Ibrahim, the country’s de facto law minister.
The proposal, in a capsule, is this:
Under the plan put forward, the commission would consist of 13 members. After deliberations, they would offer the PM a list of candidates for appointment to the Bench. This is a marked change from the current system where the list of candidates is drawn up by the chief justice.
As the Royal Commission on the V.K. Lingam video clip revealed, the current system of appointing judges can be manipulated and abused, allowing power brokers outside the judiciary to influence the CJ and pull the strings on the choice of candidates elevated to the Bench.
But the concern of the Umno ministers was this:
But there has always been a nagging feeling that not many of his (Badawi's) Umno colleagues are on the same page with him on judicial reform. They fear that the setting up of a Judicial Appointments Commission will eventually lead to the loss of Malay control over a key institution.
They have argued that as long as the selection of candidates to the Bench is in the hands of the CJ – traditionally a Malay – there was no chance of top posts in the judiciary falling into the hands of a non-Malay.
But that equation could change drastically if the Judicial Appointments Commission comprised a significant number of non-Malays. Umno ministers and politicians have also been lukewarm about judicial reform because it is not an issue that has much traction on the ground with the rank-and-file.
As far as branch and division officials are concerned, any move to alter the status quo in the country is a threat to the party’s supremacy and Malay political power. Everything is seen as a zero sum game.
The whole idea of the Judicial Appointments Commission is to make the appointment and promotion of judges objective and transparent. To ensure that justice will be free of political and personal concerns. But in the discussion on the formation of this Commission, the stumbling block is precisely political and personal concerns: that of Malay control over a key institution.
What I find ominous is this assurance that concluded the article:
Still, government officials told The Malaysian Insider that they are confident that the judicial commission will be approved by the Cabinet once the framework is re-worked. “There are concerns by some people and these concerns need to be addressed before the commission is set up. This is a consultative process,” said the government official, who requested anonymity because he is not authorised to be speak on Cabinet matters.
The next day, The Star carried this news entitled, “Judicial reform plan put on hold”:
Neither the proposal to amend the Federal Constitution to set up the Judicial Appointments Commission (JAC) nor that to reinstate Article 121 to its pre-1988 position will be tabled in Parliament next week.
De facto law minister Datuk Zaid Ibrahim, who had presented his proposals to the Cabinet last week, said it needed more time for it to be tabled.
“Some people agree. Some people do not agree,” he told reporters yesterday after presenting ex-gratia payment to retired Federal Court judge Tan Sri Azmi Kamaruddin for the pain and loss he suffered during the 1988 judicial crisis.
Zaid thanked Chief Justice Tun Abdul Hamid Mohamad for supporting the restoration of Article 121, adding: “I just need to convince other parties who are equally as powerful as I.”
http://thestar.com.my/news/story.asp?file=/2008/6/21/nation/21614657&sec=nation
Another article that caught my attention is headlined, “Court ruling gives hope to ISA opponents.” The article was about a public forum titled “ISA: Abolish or Review” and quoted the Bar Council President as saying, “The recent judgment has given us hope to pursue the removal of the ISA.”
In October, Kuala Lumpur High Court judge Datuk Mohd Hishamudin Mohd Yunus awarded RM2.5 million damages to political activist Abdul Malek Hussein after ruling that his arrest and detention under the ISA were made in bad faith under Article 5 of the Federal Constitution.
The judge had added that the nature of the interrogation was clearly for a political purpose, and was not based on genuine concern for national security. Ambiga said the big award was in view of the torture that Abdul Malek was subjected to during detention.
http://www.sun2surf.com/article.cfm?id=23310
While we are assured that the ISA is needed to combat terrorism and other threats to national security, we have here a situation where a judge clearly concluded that the ISA was used for a political purpose. Much more, the person was tortured for that political purpose.
Christians are generally called upon to be law-abiding citizens. And we are called to respect the law of the land, and uphold the authority of the government. Because of this, we rarely question the structures enacted by law through the parliament. We tend to give the benefit of the doubt to the government. However, the domination of the ruling party over parliament since independence, and the complete power that they possess in enacting and amending laws, have given rise to a situation where critical decisions are now legally made at the complete discretion of the executive government, without the need to explain and inform, and without recourse to external examination and redress.
I believe that we do not need to give up our natural inclination to be law-abiding. But we must at the same time insist on laws that are transparent and objective. We must insist on decision-making processes that are open, and subject to the scrutiny of other stake-holders. The bible clearly tells us that man is sinful. And it requires no stretch of the imagination to see that politicians are sinful too and should not be handed absolute power and discretion.
For further reading:
Judicial reforms must be addressed in the context of administration of justice
Setting Up Of Commission To Help Clear Backlog Of Cases – Zaid
Models of Judicial Appointments Commission (Commentary by Param Cumaraswamy)
The independent Judicial Appointments Commission (UK)
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