by Martin Jalleh
14 Sept 2011
Zaki Azmi, the “Judiciary’s Renaissance man” has left behind a legacy of a judiciary scandalously compromised, shamelessly cowed and a slew of shocking contradictory and convoluted judgments. Below are some examples.
“Creatures of the Government”
In Dec. 2009, Abdul Aziz Bari, a constitutional law expert, declared that the judiciary has been reduced to one that “takes its cue from the government”.) But it has been the then CJ’s belief that since the 1988 judicial crisis “the confidence in the judiciary has improved a great deal” (The Nut Graph, 26.03.10)!
Zaki called those who criticized the judiciary for its lack of independence “a small group of vociferous people out there, who go onto the internet and blogs and Facebook and all that and make comments without knowing the proper background. Many are not even lawyers.”
A few months later lawyer Edmund Bon, who was then the chairman of the constitutional law committee of the Bar Council revealed that “the perception that the judiciary is executive-compliant still remains till today” (Free Malaysia Today, 17.08.10)!
According to former Federal Court judge Gopal Sri Ram: “… the judiciary has become so ‘executive-minded’ and that “the judges have become creatures of the government” (Malaysiakini, 16.09.10).
The NST quoted Zaki on 12 May this year that feedback from lawyers showed that they were happy with the integrity of the judiciary and had not heard anything negative since 2008. He added: “I am sure many, if not all, agree that the Malaysian judiciary is now free from any criticism or accusation of bias or partiality.”
Very apparently he had not listened to N H Chan who had often pointed out that the “Perak crisis has brought out a host of cases that showed that the judges gave the impression that they were one-sided. The perception of the people is that they sided with the BN government.”
Cowardice & Cold Feet in the Courts
The less-than-three-year tenure of Zaki Azmi saw the Federal Court shirking its responsibility to execute justice by declining to answer burning constitutional questions especially those related to conversion issues.
There were instances when it chose not to make a ruling but preferred to dismiss the case on technicalities instead. There is no better example of this that the Shamala Sathiyaseelan appeal. The glaring truth is that the court of last resort in this country is not the Federal Court, but political expediency.
Commenting on the issue, the Bar Council said that “the Federal Court failed to be decisive and abdicated its role as the ultimate arbiter in disputes involving constitutional questions and jurisdictional conflict.”
Respected lawyer Art Harun concurred: “I have lost count of the number of cases which involve inter-faith conflicts arising from conversion and re-conversion of a person from one faith to another — often from one faith to Islam and back to the original faith — where the Federal Court had chosen not to make a ruling, preferring to dismiss the case on technicalities instead.”
On 28 July 2010 Zaki shied away from explaining why the Court of Appeal has yet to set a hearing date for the controversial “Allah” court case more than a year after it was filed. (The Catholic Church, which had initially agreed to stay publishing the word after a series of attacks broke out nationwide following the ruling on 31 Dec. 2009, has grown anxious at the extraordinary delay.)
On 8 Sept. this year, a three-member panel of the Federal Court led by Zaki, an unanimous decision, dismissed a crucial appeal by five Sarawak native customary rights landowners, a decision which will adversely affect more than 100 similar cases (Malaysiakini).
Both Zaki and another member of the panel, refused to interpret the constitutional question affecting native customary right land in Sarawak with the excuse that the issue of unconstitutionality was not raised or properly canvassed before the Court.
Baru Bian, one of the lawyers for the natives pointed out that there were in fact oral and written submissions on the matter. The judges “were evading the practical problem on the ground”. Law professor Abdul Aziz Bari opined that by refusing to deal with the constitutionality issue, the Federal court has abdicated its duty.
Contradictions
Zaki’s cowed judiciary took its cue from the government and this resulted in the courts being riddled with self-contradictions or courts contradicting one another, at times to a ridiculous extent! Below are some examples.
On 9 Feb. the Federal Court in the case of whether PR’s Mohammad Nizar Jamaluddin or BNs Zambry Abd Kadir is the rightful Menteri Besar of Perak ignored (and contradicted) the established precedents.
set in the Stephen Kalong Ningkan case in Sarawak in 1966 and the Pairin Kitingan case in Sabah in 1985.
On 25 Feb. 2010 the Federal Court unanimously decided not to review its 29 Jan. decision barring Anwar Ibrahim from access to the documents “which would be tendered as part of the evidence for the prosecution” and “a written statement of facts favourable to the defence” which he is entitled to.
There had been 10 previous decisions since 2001, presided by four previous chief justices where the Federal Court allowed a review of its own decision. Further, a month earlier (21.01.10) the Federal Court, acting on an application by the CJ reviewed and revised its absurd and perverse decision made a decade ago. One of the judges on the panel was Zulkefli Ahmad Makinudin. He was also on the panel of the 25 Feb. hearing! In other words he contradicted himself about a month later!
On 5 Aug. the election court threw out Zaid Ibrahim’s petition to declare the election of P Kamalanathan as MP of Hulu Selangor on April 25 void, for Zaid failed to furnish details to back up his claims that the poll results were influenced by bribery and corruption.
In the Sodomy II case the court held that the details – police reports, list of witnesses, medical reports – of the prosecution’s ongoing case against Anwar Ibrahim for sodomy, details that are as a norm furnished to the defence at the start of a trial “have not been fatal to the prosecution’s case”.
In April, in a case between ousted Perak Speaker V Sivakumar and BN assemblymen in Perak, the Federal Court ruled that it was allowed to inquire into legislative proceedings. It departed from the precedent which gives respect to the doctrine of separation of powers.
On 22 Oct 2010 (in a case brought about by Puchong MP Gobind Singh Deo) the High Court ruled that legislative proceedings cannot be challenged in court. The constitution was supreme and that it cannot question proceedings of the Dewan Rakyat.
Other than introducing measures to speed up cases and ensure judgments are issued on time, Zaki has also been dogged by controversy during his time as CJ, the latest over amendments that allow him to get a full pension despite serving just a few years in the judiciary.
On the pages of history will be penned the public perception of a Umno lawyer picked by the Government from the Bar, parked in the Court of Appeal for a while, and placed at the pinnacle of the judiciary at an opportune time so that he and his cohorts could pander to their wishes and be paid a handsome price for bring prized lap-dogs!
He believes that he has done a good job and that is enough. In fact that is all that matters. All criticisms will be ignored or better still read as envy. Typical umno punya style. Shiok sendiri.
///In April, in a case between ousted Perak Speaker V Sivakumar and BN assemblymen in Perak, the Federal Court ruled that it was allowed to inquire into legislative proceedings. It departed from the precedent which gives respect to the doctrine of separation of powers.
On 22 Oct 2010 (in a case brought about by Puchong MP Gobind Singh Deo) the High Court ruled that legislative proceedings cannot be challenged in court. The constitution was supreme and that it cannot question proceedings of the Dewan Rakyat///–Martin Jalleh
It would appear that the decision of the court was made based on tossing of a coin. The only difference is that the judge decides to pick either head or tail rather than depending on how the coin lands. The choice of course depends on what pleases the political master.
Comes to a close? The damage that has been done since 1988 and further damaged under Zaki will take years to unwind after UMNO/BN is kicked out. In the meantime, the damages continue. Judicial systems don’t operate under exception – they are system – when you damage it systematically, it continue damaging again and again..
Go ask the Ten men of Seruan Gemilang Makmur in Kuantan undergoing hunger strike or the NCR land owners in Sarawak.. They will tell you the injustices keep piling up.
In Dec 2009 I was called to be a witness in a court case. On that day, I was told that the case has been postponed as the judge was called for an “emergency meeting” with the CJ. Next day I read in the papers that the CJ was addressing a “gathering” of judges to inform them that his method of fast-tracking cases had drawn admiration even from foreign jurists!! The judges had been called to attend a “syiok sendiri” meeting and all cases had to be canceled for the day!
Don’t we know the words judiciary and executive are used interchangeably in Bolehland?
Ya..Bolehland semua pasti boleh..boleh tipu,boleh flip-flop,boleh polish bola sampai kilat-kilat,boleh curi,boleh c4,boleh pakat-pakat,boleh cuti-cuti Malaysia dan boleh syiok-syiok sendiri.Wakakakaka
Zaki, Chief Jester?
Sounds mild.
In a way, Martin Jalleh’s ‘Chief Jester’s Circus and Charade’ though ‘sounds mild’ is quite apt description. Basically Zaki is down to earth guy trying to do his best but his best is hardly good enough per expectations of many others. A CJ has multiple roles – as (i) Administrator as well as (ii) Judge. On (i) administrative role he meant well when he introduced KPIs in courts. As a result some Judges just didn’t allow postponements applied for some lawyers. (One lawyer had 92 cases a day – taking on more than he could chew- another fainted in Court when his application for postponement was denied. Too many postponements is law delayed, justice denied). In some respects cases are more speedily disposed, so lawyers could get paid faster than before, perhaps that’s why Bar Council’s chief said some nice tings about him which incurred the ire of Karpal asking Bar Council’s officials to resign…
In role (ii) as judge in relation to public misgivings of judicial independence, he knew in beginning his appointment appeared “favoured” having inherited office direct from the Bar, jumping over the heads of many serving judges, and one time whilst practicing, was even UMNO’s lawyer, a record hardly helpful to rectify the gnawing misgivings about judicial independence after 1988 events. He didn’t cause 1988 events but under his watch, the judicial decisions (eg on Perak Constitutional crisis, Conversion or NCR cases) of cases of profound political implications, no spine has been shown to reverse the perceived trend of favouring Executive since the rot of 1988! Put it this way, if there were a judge activist and reformist who evinced zeal to address the 1988 rot, he wouldn’t have been appointed in the first place! So he juggles (like in NCR case) between conscience and other political constraints by ducking constitutional issue.
When a person is corrupt he tends not to hear anything except the sound of money. These judiciary prostitutes are nothing but a bunch of wide open legged whores to the ruling corrupt.
That’s how independent they are.
Against this background Martin Jalleh sees a “circus”. What does one see in a circus? Acrobatics & Juggling, stunts and breathtaking balancing and non-stop comedic stunts, choreographed against unchanging background political music that’s humming without change of beat – with him as ringmaster! So when time comes to leave, he said “I’ve done well” detractors, addressing the issue of judicial independence vs Executive, find it comedic. The “mild” aspect is because he’ not the type who went out of the way to do the vindictive, bad or the untenable (like a CJ going on a holiday in NZ), though PM did come to his tea party, held on the sidelines of the annual Conference of Judges! But really, he couldn’t be said to be lesser than his earlier 2 predecessors, esp when he tried do something with some results in his other administrative role. In that context Bar Council’s Lim Chee Wee lauded him as one who has “surpassed the Bar’s expectations in terms of implementing many positive changes and improving dialogue between Bar & Judiciary. Changing culture of political interference (since 1988) require an outstanding man willing to give up everything without juggling. The Ex Judges that talked independent, don’t forget that they do so only after they left office, with nothing to lose!
Can prof Keling please answer the following—
If malaysia has never been colonised, then why is it a member of the british commonwealth, and also hosting and taking part in the commonweath games? And why did it host CHOGM in 1988?
He is quite happy to have ‘visa free’ entry to UK removed. Of course others would have easily qualified as investors to enter any time they please.
Most of the Judges…especially Muslim Judges are not qualified.
Most involve politics in their judgements ..as we have seen so many times.
Most glaring of all is the Judgement by Perak Sultan who was Lord President.
He should not judge in the first place..and as Perak folks are split…he should be a fair and wise Sultan to let his people vote again…but he did judge in favour of UMNO b..for reasons many Malaysians have spoken
Most of our Judges…under UMNO b are playing to please the Govt…for personal benefits.
If they say anything that do not please the Govt…they will be demoted and “yes men” will replace them,
Nothing can be done to correct the situation…except to change the government.
With no change….Malaysians better be prepared to bribe and get away from troubles.
Corruptions are greatly encouraged for 35 years.
How to have fair minded judges when money rules everything.
Yo !!