Law
Dismantling of justice
Lim Kean Chye
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Law
Dismantling of justice Lim Kean Chye |
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1988 and After - the dismantling of Justice - The first step 1988 WAS a disastrous year. It was the year when the back of the Constitution was broken. It was the 8th year in office of the fourth prime minister. He had started his regime with a constitutional tussle with the Sultans. His divisive drive split UMNO right down the middle, so much so that when, in 1987, Tengku Razaleigh challenged him at the UMNO elections, he managed to scrape through by just 43 votes. Had the unregistered and, therefore, illegal branches been properly denied the vote, the likelihood was that he might have lost. When the matter went to court, Mr Justice Harun Hashim declared UMNO to be an illegal body. The decision was a blow to newly elected president. It drew from him such a violent reaction that more than 100 people were detained in a swoop called "Operation Lallang.". But a nagging fear of the unknown remained. The UMNO battle was going on appeal, ultimately to a nine man panel, to be presided over by a man who could not be trusted - Tun Salleh Abbas, Lord President of the final court of appeal. That must not happen. This Lord President together with Mr Justice Wan Suleiman and Mr Justice Eusoffe Abdoolcader had in 1986 quashed the expulsion orders against the the correspondents John Berthelson and Raphael Pura of the Asian Wall Street Journal and ordered that the paper resume publication. These judges were from then on marked men. The opportunity fell into the prime minister's lap when the Lord President wrote a letter to His Majesty the Yang di Pertuan Agong complaining about the carping criticisms of the prime minister. Never mind that he had in fact written it on behalf of 20 judges. A "tribunal " was appointed to sack him because, it was said, the Yang di-Pertuan Agong had taken offence. Notwithstanding that there was nothing in the country's laws to allow for the removal of a Lord President, members of the board were appointed . And there were willing enough appointees. One was the speaker of Parliament, a former judge of |
| a few years standing
and an old friend and business
partner of the
prime minister; another was the judge who was in line to succeed the
Lord President if
he was sacked; one was a businessman and practising lawyer as
well as a
litigant in two current actions in court. When the "tribunal" sat, farce piled upon farce. The misdemeanour was pumped up to include two speeches made in 1988 as well as statements made after the victim had been suspended. Tun Salleh Abas was sacked. The prime minister's raging fury engulfed more victims. A second "tribunal" removed three more judges (including Mr Justice Wan Suleiman and Mr Justice Esoffee Abdoolcader) whose unforgivable crime was to try to prevent the unlawful flagellation of the Lord President. The second step The attack on judges rolled on to destroy the courts. "The courts," the prime minister had said in 1988, " have decided that in enforcing the law, they are bound by their interpretations and not by the reasons for which Parliament formulated these laws ... judges "often bend over backwards to award decisions in favour of those challenging the government." In November 1986 the prime minister told " Time" magazine: "... we will have to find a way of producing a law that will have to be interpreted our way ."(1) And found a way he did. Article 121 of the Constitution was amended to strip the courts of judicial power. Henceforth, they were only to " have jurisdiction and powers as may be conferred by Federal law." Former Chief Justice Fairuz explains: "... it will not be wrong to say that the Judiciary in Malaysia today is subservient to the wishes of the Legislature in which the Executive under the system of responsible government has to a large extent control of what legislation to enact. In other words its 'judicial power would amount to doing what you are told to do." (2) The heart was ripped out of the Constitution. No longer could it be said, as Tunku Abdul Rahman once did, that "Our judges are the guardians of the constitution and thus our democratic system of government." (3) The third step The third step was another amendment in 1988 to Article 145 giving the power to the attorney general to choose any court that he wanted to try offences. No wonder the late Tun Suffian, the former lord president said: "... When I am asked what I thought, my usual reply is that I wouldn't like to be tried by today's judges, especially if I am innocent." (4) |
| Shocking as they
were, these catastrophic events were but part of a
programme of the wresting of absolute power. The prime ministers
preceding
were men prejudiced in favour of a subservience to the constitution and
a
belief in judicial independence. Two were lawyers and the third a
former civil servant.
One was royalty, one was an aristocrat close to royalty and the third
another
from an old Pahang aristocracy with a hereditary title of "Dato."
The new
prime minster, however, was an upstart from Penang who, as all
immigrant children are,
was determined to do better socially than his humble private school
teacher
father. Feudal deference for Sultans was alien to his culture and it
was
reflected in his rude opposition to the rule of Tunku Abdul
Rahman and the uncouth propaganda
he was later to launch against the Sultans. Concentrating on becoming a doctor, he was impervious to the great events that unrolled about him and at home. The great Indonesian and Indo-Chinese wars of liberation and the anti-colonial movement here seems to have left the young student cold. He claimed the UMNO inheritance late in life without either "Hidup Melayu!" or "Merdeka!" credentials. His writing reflects no democratic or anti-colonial stirrings but instead depicts a conservative who liked the British for their "benevolence." He parroted the white colonialist and orientalist sneering description of the Malays as a people winning by "stealth and cunning" and prone to run "amok," views which have been demolished by Syed Hussein Alatas and Edward Said. A shocked Dr Bakri Musa thought his discovery that the Malays had "dumb genes" an outrageous conclusion and condemned his advocacy of racial intermarriages as means of introducing "superior" genes into the community. His boldness however brought no retribution. He got away with it. He saw the country as dominated by selfish, chauvinistic Chinese shopkeepers who controlled the economy (it did not occur to him to ask why if that were so the British handed over the administration to UMNO and to ask in whose interests they sent soldiers over to fight a long war). His populist attacks on Tunku Abdul Rahman for being "soft" on the Chinese brought him instant popularity in UMNO and to eventual power when he took over the prime minister's job 7 years after he was expelled from the party. His extreme right wing views inclined him to envisage a world of autocratic rule by an unchallenged ruler. The judges were only a branch of service, he said when in 1987 he criticised Mr Justice Harun Hashim for discussing the constitution at a seminar on law at the Universiti Kebangsaan. He attacked judicial "indiscretion." (5) "A branch of service such as ... the judiciary should not interfere in the jurisdiction of another." (6) The accepted view well enunciated by Sultan Azlan Shah speaking at the University of Malaya the same year. "A judge plays the role of watchman to the constitution and to the property and interests of society, and he has to ensure that everyone follows the rules." (7) These ideas are simply repugnant to such a man as Dr Mahathir. Nor did he care much about human rights. At an ASEAN meeting in 1997 he called the Universal Declaration of Human Rights it an oppressive instrument by which the United States and other countries tried to impose their values on Asians. |
| The building of power The measures taken from 1983 to 1993 to limit the powers of the Yang di-Pertuan Agong and the immunities of the Sultans must be seen as moves to ensure that his one-man rule would remain uncontested and unquestioned. Article 150 of the Constitution was amended to give the prime minister, instead of the Yang Di-Pertuan Agong, the prerogative to declare an emergency which was not to be challenged or called in question in any Court on any ground. Once a government is in power, he often repeated, it has a mandate to rule without criticism for the term. 54 amendments have been done to the constitution. The list includes curtailment of procedural rights of preventive detainees and arrestees, withdrawal of the principle of jus soli in citizenship cases, application of sedition laws to parliamentary proceedings, removal of the statutory guideline in determining weightage in favour of rural districts and of parliamentary controls over emergency powers. (8) The record of the strangulation of democratic discussion is not pleasant reading. In 1981 The managing partner and a journalist of WATAN, Martin Jalleh was arrested. In 1983 PAS leaders were detained under ISA The Official Secrets Act was amended to impose a mandatory jail sentence. Also amended were the Elections Act, 1985 and the Election Offences Act, 1954. In 1986 the publishing permits of the Parti Socialist Rakyat Malaysia's monthly, the Mimbar Socialist, was suspended.. Muhammud Shafee Abdullah, a lawyer representing two expelled foreign journalists, was detained. The Societies Ordinance was amended to bar a member of a society from taking his grievances to court. In October 1987 Tunku Abdul Rah man was silenced when his critical column died with the closure of the Star newspaper along withe the Sunday Star, Sin Chew and WATAN. That was during "Operation Lallang." The Printing Presses & Publication Acts of 1984 was amended to stop applications to court. In 1991 Mingguan Waktu licence was revoked. In 2001.4.10 Tian Chua, Mohamad Ezam, N Gobalakishnan, Haji Saari Sungib, Hishamuddin Rais, Raja Petra Kamaruddin, Abdul Ghani Harun, Dr Badrul Amin Baharom, Lokman Mohd Nor, Badaruddin Ismail were arrested, accused of plotting to overthrow the government.. |
| The deputy Prime
Minister and Home Minister Dato Abdullah Ahmed Badawi
explained that the activists would not be released because the
government had ordered their detention on the basis of valid security
concerns.
"... I am aware that the questions that were asked during the
period were also questions
relevant to security matters and not just a case asking about personal
questions,"
Mr Badawi said. But the Federal Court was to say that "clearly,
from the
affidavits ... , the questions that were asked were more on the
appellants' political
activities and for intelligence gathering." In 2001 "Aku janji" required public university academics, students and civil servants to sign a pledge of submission to government. (9) Violence Violence became the political norm. In 1986 UMNO Youth demonstrated at a mass meeting to protest against Chinese schools rejecting the appointment of Malay headmasters to their institutions and even called for blood to flow (10) In 1996 Sixty local delegates and organisers Second Asia Pacific Conference on East Timor (APCET II) held in KL with a police permit were arrested and 40 foriegn delegates deported. (11) UMNO Youth even stormed the conference and wrecked it. In 2000 UMNO Youth demonstrated at the KL Chinese Assembly Hall threatening to burn down the building. A humble 17 point election petition appeal received by the prime minister as a constructive document, had become an "arrogant demand" overnight. Even the former deputy prime minister was not immune. It will be recalled that In 1998 Dato Anwar Ibrahim appeared in court with a black-eye, the result of a severe beating of a prisoner by the head of police, and also denied medical attention for five days. The Memali incident saw the detention of 36 persons under the Internal Security Act. The unmaking of Malaysia Ahmad Mustapha Hassan, a nephew of the prime minister and former civil servant, scathingly calls Dr Mahathir's endeavours "the Unmaking of Malaysia." "Tun Razak had laid a solid foundation for the country so that Malaysia will remain united, prosperous and harmonious. The elements that form the foundation were secularism, liberalism, unity, religious tolerance, the respect for the judicial system, ethical behaviour, checks and balance, the respect for the constitution, fair distribution of wealth, transparency and a level playing field and progress in all spheres. "Dr. Mahathir for political and other reasons had caused cracks in this foundation. From a secular state, Malaysia was announced as being an Islamic state. Most institutions are now being dominated by fanatical religionists. The "tudung" has become compulsory attire for women in most institutions. The open tender system has been replaced by so-called negotiated tenders. The judiciary was made to be |
| subservient to the
executive. These are some of the
major cracks
in the foundation. These cracks will naturally cause the structure to
crumble.
This is the Unmaking of Malaysia." (12) Out of the woodwork The destruction of the courts and the ascent to high office by" yes" men of the prime minister led to an atmosphere if disquietude in the corridors of the courts. In 2000, Tun Mohamed Suffian Hashim, the well-informed former lord president, commented, "Judges who joined in downing their boss have been rewarded by promotion. Judges who did not, have been cowed into silence. Judges are at sixes and sevens. Some daren't speak to each other. While there are judges whose integrity and impartiality have never wavered, the public perception is that the judiciary as a whole can no longer be trusted to honour their oath of office." (13) A climate of desolation descended on the courts. A few examples. The Ayer Molek case. In Insas Berhad v Ayer Molek Rubber Co Berhad (14), a court perversely refused to allow an application by the defendants to set aside an order which violated the Companies Act and had allowed wrongdoers to register themselves as owners. A federal court decision not only affirmed the wrongdoing but comically 'expunged' the shocked Court of Appeal's comment that something was 'rotten in the state of Denmark.' As if that were not flagrant enough Mr. Justice P S Gill, a judge of the high court, was made a member of that federal court. Mr Justice Mohammed Hishamudin Mohd Yunus was later to point out that it was an illegal act to appoint a high court judge to the court. My report of this case would not be complete without adding the fact that Dato V K Lingam, of the video tape fame, was the successful counsel before the Federal court. In 1994 Raphael Pura, a correspondent, in the case of Insas Berhad against Raphael Pura, alleged that the judgment awarding RM10 million to the plaintiff Tan Sri Vincent Tan for libel, was written in part by counsel for the plaintiff Dato V.K. Lingam. The proposed amendments to Pura's defence also said that a copy of the draft judgement bearing amendments in the lawyer's handwriting would be provided to the court. These statements in Raphael Pura's proposed amended defence were made to raise a defence to a claim of libel by Insas Berhad with regard to a published statement that "Malaysian justice was up for bid". The proposed amendments also included allegations that " the same lawyer Dato V K Lingam cultivated inappropriately close relations with the Honourable Chief Justice of Malaysia Tun Eusoff Chin whom he has placed in his debt notoriously, inter alia, by getting the said Honourable Chief Justice and his family on a New Zealand holiday together with his family from 22.12.94 - 30.12.94. The amendments also spoke of photographs of both families during this holiday at expensive skiing and fishing resorts in New Zealand. That the High Court refused the amendments. In 1996, Dato Lingam filed three defamation suits for a total of RM190 million against lawyers, journalists and several others over an article in the International Commercial |
| Litigation (ICL)
magazine. The article
"Malaysian
Justice on Trial" published in the November issue of the
British-based magazine had
suggested that Dato Lingam and Tan Sri Tan had connections with
judges, namely
in the controversial Ayer Molek case and Tan Sri Vincent Tan's action
against M G G Pillai for
libel. Last year Mr Justice Hishamudin Yunus dismissed the action and said it was Lingam's wrongful conduct in the Ayer Molek case that had led to the publication of the article. The judge said Lingam was guilty of abusing and manipulating the process of court in filing the action in the appellate and special powers division of the High Court instead of the commercial division. Dato V K Lingam A mention must be made here of the rise of Lingam of the tape because it epitomises what the courts had become. This is the man who is alleged to be the man in the video clip released by Anwar Ibrahim - on September 18, revealing his influence in brokering judicial appointments. By inference, the conversation appeared to involve current Chief Justice Ahmad Fairuz Sheikh Abdul Halim. The claims made in the tape have not been denied, although the judge is said to have reported to the de facto law minister Mohammed Nazri Abdul Aziz. Kanagalingam Veluppillai, 56, started life with United Motor Works' Dato Eric Chia, the same Eric Chia who was later appointed to head the scandal ridden Perwaja Steel Holdings. He studied law in England and qualified in 1985. On his return, he re-joined UMW as its group legal advisor in 1985. In 1989 he started his own practice. This young lawyer in 1994 spent a holiday in New Zealand with the Chief Justice Eusoff Chin. He had a holiday in Italy with Tan Sri Vincent Tan and then attorney-general Mohtar Abdullah (later appointed Federal Court judge). In 1996 this seven year old lawyer was senior counsel for Tan Sri Vincent Tan and led in several highly publicised cases. He acted for Tan Sri Vincent Tan's Berjaya group in a defamation suit against the well known journalist M G G Pillai winning a staggering RM10 million in damages. Pillai's appeal to the Federal Court was heard by a three-member panel led by Tun Eusoff Chin who upheld the finding but were compelled to reduce the ridiculous damages to RM2 million. Lingam's VIP clients include Dr Mahathir Mohamad, who was once sued by Anwar for defamation. Dato Limgam had the case struck out. V K Lingam is the same man who achieved a record RM600,000 for getting up costs in an appeal case. Lingam was well rewarded for his services. An audit report by PriceWaterhouseCoopers into the Perwaja's RM6.9 million debts in 1996, ordered by former deputy premier Anwar Ibrahim, disclosed that Lingam had been paid |
| RM12 million
for his services. Lingam is now on the board of directors in Cosway Corporation Bhd, a subsidiary of Berjaya Group. Another shocker was the Boonsom case (15) Section 340 of the National Land Code reads as follows: 340. (1) The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible. (2) The title or interest of any such person or body shall not be indefeasible (b) where registration was obtained by forgery, or by means of an insufficient or void instrument; or .... (3) Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in sub-section (2) (a) it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and (b) any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested: Provided that nothing in this sub-section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a purchaser. The Federal court held that the taker of a forged document had a good title despite sub section 2 and instead applied the proviso to subsection 3 which did not apply to sub section 2 at all. It gave no cogent reason for ignoring the court of appeal reasons. This perversity has drawn from Professor Teo Keang Sood the unprecedented call not follow the judgment (16) The decision has been described bluntly as the most outrageous injustice by Mr. N H Chan, a former court of appeal judge, in his recent book "Judging the Judges." He bluntly wrote that Tun Eusoff Chin, the Chief Justice, in the Federal Court "spoke like Humpty Dumpty in Lewis Carroll's "Through the Looking Glass." "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean - neither more nor less." |
"The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master - that's all." We have also to add to the dismal list the conviction of contempt, in 1999, of the Far Eastern Economic Review correspondent Mr. Murray Hiebert. And all he done was to write an article reporting a court case by the wife of a judge, Mr. Gopal Sri Ram, who sued the International School of Kuala Lumpur for dropping her son from a school debating team. Mr. Hiebert's offence was that he had noted the unusual speed with which the case had proceeded. The writer had "scandalized the court," the court of appeal said. He went to prison. The case was reported to be the first in which a journalist has been sentenced to jail for contempt in the ordinary course of his duties. And what is one to make of such arrogant statements of the chief justice that he would in future appear in all leave applications. That was after the journalist M G G Pillai obtained leave to appeal from the Federal Court. The trials of Anwar Ibrahim The shameful "trials" of Dato Anwar Ibrahim, former deputy prime minister, which made a laughing stock of our courts, needs special mention. The man was denied bail, which in our courts is granted as a matter of course. Someone, surely, was pulling the strings. Just one sample will illustrate how the court made a mockery of justice. One of the charges the accused faced involved an offence in a certain building. But the evidence proved that the building had not even been occupied then. But voila! The court simply allowed the date of the offence to be amended to sometime when the building was occupied. Had the accused been before a genuine court of justice with traditional counsel from the attorney-general's office, the prosecutor would have withdrawn the charges and apologised to the court for wasting its time. He would have placed a black mark against the investigating inspector's record of service, which would have the consequence that he would never get promoted for five years. Unbelievably, while the trial was going on , Dr Mahathir himself even went on television to declare Anwar guilty of sodomy and homosexual acts. One man courts I want now to take you for one more quick look at the courts. Courts were practically reduced to one man courts. We lawyers all know that in the post-Salleh Abbas regime dissent was discouraged in two succeeding federal courts, in order to present a solid front against a critical Bar. Judgments of the top men acquired the sanctity of sacred texts. |
| Such courts are in
fact useless as authority. All judges are equal. The
reason why higher courts have authority to overrule lower courts is not
because
they are 'higher' but because there are more judges sitting. The
exercise of more minds
than in the court below gives the appeal court authority. Moving judges Undesirable judges were summarily transferred. Mr. Justice K C Vohrah, the Criminal Division's senior judge, went to the Appellate and Special Powers Division to avoid, so it was said, his presiding over a certain trial. The judge was seen to be too proud a man to bow to the wishes of powerful politicians. Mr Justice Hishamudin Yunus was suddenly transferred to the Civil Division of the Kuala Lumpur High Court to bar him from hearing habeas corpus applications. The only explanation that offered itself was that, in May 2001, he had ordered the release of Reformasi activists, Abdul Ghani Haroon and N Gobalakrishnan from detention under the ISA. They had been detained along with Ezam Mohd Noor, Raja Petra and six others. He also made an order restraining the police from re-arresting Ghani Haroon and Gobalakrishnan for a period of 24 hours. Mr Justice Hishamudin still a High Court judge though appointed to the High Court bench in 1995. Datoships The accepted practice of conferring the Tan Sri honorific on federal or supreme court judges immediately following their appointments has been discontinued. Those not considered 'good boys' remained State Datos until they retired. Specially selected judges I will just take one case, the case pf Plenitude (17) For some unexplained reason none of the four judges in Johore was allowed to try this case although it was filed in Johore. Instead a judge from another state, Mr Justice P S Gill was flown in. One of the issues in that case was clause 19.1 of the agreement which stipulated that the agreement between the parties 'shall represent the entire agreement between the parties hereto except as otherwise provided herein and it may not be changed except by written agreement duly executed by the parties hereto.' The judge held that an oral contract made between the parties defeated the plaintiff's attempt to regain his piece of land and awarded the second defendant damages which included an item amounting to RM13 millions. On appeal (18) a court made up of Abdul Hamid LP, Gunn Chit Tuan CJ and Eusoff Chin SCJ, declared briefly that the court saw no reason to disagree with the lower court's findings of fact. In both cases the disgraced Wong Kim Fatt was the successful counsel. |
| Spite Not satisfied with prostituting justice the new era judges have acted vindictively and with spite against counsel not in their closed circle. When in 1989 the Bar Council instituted contempt proceedings against the new Lord President Tun Hamid Omar, who had replaced Tun Salleh Abbas, the Attorney General applied to commit Manjeet Singh Dhillon, the then secretary, to prison for contempt. Manjeet Singh was lucky to have been fined and not jailed. And there was more to come. Mr. Zainur Zakaria, one time president of the Bar Council, charged with contempt, was refused time to prepare his defence and call witnesses and was thrown into jail; bail pending an appeal was denied. Was it more than a coincidence that he was one of the defence lawyers for Dato Anwar Ibrahim? During the course of the second trial of Mr. Anwar Ibrahim, Mr. Karpal Singh, one of the defence counsel, referred in court to a medical report which showed that the damaging levels of arsenic in Mr. Anwar's body. He asked for an inquiry to be held. Even though both the trial judge and the Attorney General expressed their concern about the report and agreed that there should be an investigation, Mr. Karpal Singh was charged with sedition for having said that: "it could well be that someone out there wants to get rid of him..... even to the extent of murder...I suspect people in high places are responsible for this situation." The Lawyers Committee for Human Rights noted that "this is the first case anywhere in the world in which a lawyer has been accused of sedition for words spoken in the defence of his client. We believe that such a prosecution strikes at the heart not only of the immunities of lawyers in respect of the conduct of their professional duties but even more importantly at the right of an individual to fair trial. Our concern is so great that we have taken the unusual course of publishing an opinion setting out our views." Tommy Thomas, another lawyer, was jailed six months for comments he made as a litigant, despite an apology. Sultan Azlan Shah IS it any wonder that in 2004, a former Lord President, Sultan Azlan Shah wrote:: "Sadly, over the past few years there has been some disquiet about the judiciary. .... "Concerns have been expressed that some judges were not writing judgments, or that there were long delays in obtaining decisions or hearing dates in certain instances. Further, the conduct of certain judges was being questioned in public "Whether these allegations are true, is not for me to say. However, having been a member of the judiciary for many years, it grieves me when I hear of such allegations. Since Independence, the early judges have always cherished the notion of an independent judiciary and had built the judiciary as a strong and independent organ of government. The public had full confidence of the judiciary and accepted any decision then made without any question. Unfortunately, the same does not appear to be the case in recent years. ..... |
| "It is
my earnest hope that the Malaysian judiciary
will regain the public's confidence, and that it will once again be held in the same esteem as it once was held. In democratic countries, it is an independent judiciary that brings pride to the nation. Members of the executive and the legislature come and go, but an independent judiciary must remain steadfast forever, fulfilling the aspirations and ideals of the people. In the judiciary, people place their trust and hope." (19) The future A reluctance What now? An announcement that the 1988 miscarriage of justice will be reviewed to clear the names of Tun Salleh Abbas and other wronged judges would have signalled the rejection of their awful inheritance by Dr Mahathir's successors. But this was not to be. There are other signposts as well. On 29th September 2001, during his opening address to the Gerakan Party, Prime Minister Dr Mahathir Mohamed announced:- UMNO wishes to state loudly that Malaysia is an Islamic country. Dato Hishammuddin, the son of Hussein Onn, warned the MCA leadership last July to stop saying that Malaysia is a secular state. The Syariah courts were subordinate to the high courts till 1988 but by Act A704 the courts were to have no jurisdiction in respect of any matter within the jurisdiction of the Syarish courts. So they now have equal constitutional status as the civil courts. But as Dr Shad Faruqi has observed, no one has defined who decides what is within the jurisdiction of the Syariah court, what happens when one party is Muslim and other a non-Muslim; and who decides when there is a mix of both laws and , Faruqi asks, in addition what happens when a Syariah law invokes constitutional law questions about fundamental rights or federal-state division of power, and what happens when remedy prayed for is unavailable in the Syariah court. In this climate it is not surprising that our courts are reluctant to be seen as unIslamic. Dr Shad Faruqi describes it thus: " In any case, with the slightest whiff of Islamic jurisprudence, our superior courts abdicate in favour of the Syariah courts even though momentous issues of constitutionality may be at stake or even if one of the parties is a non-Muslim." Haris Ibrahim, a lawyer, also writes that "the Syariah courts and Syariah law have been elevated to a status that was never intended by the framers of our constitution" (20) We cannot ignore the increasing influence of Saudi manners and morals. It is reflected in the ill-informed attacks on the common law. |
| The former Chief
Justice , Tun Ahmad Fairuz Sheikh Abdul Halim, in his
opening speech at Ikim's seminar entitled "Ahmad Ibrahim: His
Intellectual
Thought and Contributions", said that he was disappointed with the
captive
mentality that placed a high esteem on the English common law. Dr Wan Azhar Wan Ahmad of IKIM says: "For a common law system in our pluralistic society to become manifest, the basis should be Islam, and arguably to a lesser extent, Malay customs." These are flanking skirmishes. The main assault to establish the hegemony of Saudi manners and morals has yet to come. Dato Rais Yatim, the minister of culture, arts and heritage, has asked his people to remember that they are Malays. His is a lone voice. Perhaps he speaks like King Canute. When the tide comes in all talk of judicial independence and judges being the bastions of the rule of law will be so much idle chatter. NOTES (1) "May Day for Justice" page 11 (2) Speech in Singapore 13.3.2006 (3) Foreword :May Day for Justice" 1989 (4) In 2000, at the Reference held by the Bar Council for the late Mr Justice Wan Suleiman Pawanteh (5) May Day for Justice page 23 (6) May Day for Justice page 27 (7) May Day for Justice page 26 (8) Summary by Dr Shad Faruqi (9) Statutory Bodies Act (Discipline and Surcharge) 2000 Act 605. (10) May Day for Justice page 30 (11) Aliran 1997 17(2) (12) Ahmad Mustapha Hassan: The Unmaking of Malaysia SIRD 2007 (13) At a Reference held in 2000 by the Bar Council for the late Mr JusticeWan Suleiman Pawanteh. |
| (14) 1995 (2)
MLJ 833 FC Tun Eusoff Chin presiding and V K
Lingam, counsel for the appellants (15) 2000 MLJ (16) Demise of the Deferrred Indefeasibility under the Malaysian Torrens System? (17) (1992 (2) MLJ 68) (18) On appeal (18) (1993 (1) MLJ 113) a court made up of Abdul Hamid LP, Gunn Chit Tuan CJ and Eusoff Chin SCJ, (19) Sultan Azlan Shah in the postscript to his book "Constitutional Monarchy, Rule of Law and Good Governance" 2004 (pp 399, 401) (20) " In the service of the Law - Tun Suffian's legacy" by Salleh Buang 2007 p 58) 6.12.2007ection 340 of the National Land Code reads as follows: (from a SERI lecture) |
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| _____________________ The Penang File Issue 60 |