Judiciary still in winter of emasculation

— by Bob Teoh
The Malaysian Insider
Jan 12, 2012

JAN 12 — Let’s not be beguiled by Prime Minister Najib Razak’s claim of the judiciary’s independence following the High Court’s full acquittal and discharge of Anwar Ibrahim from the charge of sodomy. As succinctly put by an international civil liberties watchdog, the Opposition leader should not have been charged in the first place.

Anwar’s three trials over 20 years were simply an abuse of due process; nothing more than Umno’s dirty and sordid politics to rid itself of its arch nemesis involving all three prime ministers in a row.

Don’t be misled, a swallow doth not a summer maketh. We are still deep in the winter of an emasculated judiciary frozen since the Mahathir ice age. We need more evidence of courage and boldness from our judges before we can hope to thaw into a new spring.

But credit must be given to where it’s due. Recent judgments indicate some judges are willing to go into early retirement or be put into the cold storage by going the extra mile in their adjudication. The High Court’s judgment against the government in the Allah case is a case in point. There are a few others that are noteworthy.

The Najib administration must undo what Dr Mahathir Mohamad has done to the judiciary for the 23 years he was prime minister. Najib’s predecessor, Abdullah Ahmad Badawi, made a feeble attempt by apologising to the former Lord President Tun Salleh Abbas and other judges sacked by Dr Mahathir in the late 1980s when they didn’t deliver the judgment that Mahathir wanted. Abdullah didn’t survive the wrath of Mahathir over this, among other things. In stepped Najib, Dr M’s original choice as successor.

But Najib must stand on his own now. One of Dr Mahathir’s muzzles on the judiciary was the removal of the power of judicial review of executive action. One by one, new legislations were introduced or existing ones amended by taking away the court’s inherent power. From the Internal Security Act to the Industrial Relations Act, this phrase was inserted: The minister’s decision shall be final and shall not be challenged in any court of law. Thus began our slide into a judiciary dictated by the whims and fancies of an increasingly autocratic executive branch of His Majesty’s government.

Najib must restore to the judiciary what is rightly theirs to act as check and balance in a parliamentary democracy by removing all anti-judicial review clauses from the country’s laws soonest possible.

Najib must also bite the bullet by reviewing the controversial amendment to Article 121 of the Federal Constitution curtailing judicial power in that “the (civil) courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”

The bone of contention is that this amendment impairs the sanctity of the Federal Constitution as in Article 4 (1) in that “This Constitution is the supreme law of the Federation and any law passed after Merdeka Day (31 Aug 1957) which is inconsistent with the Constitution, shall to the extent of the inconsistency, be void.”

This constitutional amendment has posed a serious problem to those seeking conversion and apostasy hearings to the extent that it infringes on their rights regarding fundamental liberties like freedom of religion provided under Article 11.

The Syariah amendment known as Article 121(1a) has served as a convenient escape clause for some judges to avoid hearing such cases and to hide behind the judicial sarong of their cowardice.

An increasingly arrogant and powerful Attorney-General adds to the maladministration of justice through selective prosecution and manipulation of due process like delaying or expediting hearings to suit the establishment’s convenience.

Take, for instance, the Catholic Herald’s Allah case, in which the High Court ruled against the government, saying it had no inherent right to prohibit others from using the word “Allah” to refer to God. There are two other similar cases filed much earlier than the Herald case but these have been held in abeyance because the AG has filed an application to the Court of Appeal for a review. But it has been more than two years now since the Herald judgment and yet the AG is in no hurry. This robs plaintiff of their judicial victory. Justice delayed is justice denied.

In the interim, people of other faiths, particularly Christians, are still prevented from using the Allah word. This is a travesty of justice considering that two thirds of the Christians in Malaysia are Bumiputeras who use the Alkitab or Malay Bible where God is referred to as Allah. Dr Mahathir banned the Alkitab in 1981 five months upon coming to power as PM. He claimed that it posed a threat to national security. It is still under a restricted ban through various extra-judicial decrees and even under Najib’s ludicrous 10-point solution to the Alkitab problem. The Alkitab remains a threat to national security.

Make no mistake about it; the judiciary is still in the winter of emasculation. But my prayer and hope is for a new spring. I remain optimistic it will come — sooner than later.