The Federal Constitution establishes and protects the Judiciary. In turn, the Judiciary’s main task is to protect us, the Malaysian citizen. There are signs that its almost uninterrupted decline from the debacle of the Tun Salleh Abas trial has been arrested. But the fundamental liberties protected by the Constitution, from Article 5’s guarantee of a fair trial to Article 13’s guarantee of protection of property, rely on the Judiciary and its independence.
For those young or foolhardy enough to not know about the Tun Salleh Abas trial, this culminated in the Prime Minister then dictating that the Lord President of the Supreme Court of Malaysia be sacked. This is not a good thing. It, along with other reforms made by the Mahathir administration, meant that the Judiciary is subservient to the Executive branch of the government, which executes the law. Given that Parliament and the Agung had already been shackled, it meant one of the last curbs to potential abuse of Executive power was removed. And we’ve seen the results, culminating in the farce that was Anwar’s trial. Talking about SMS divorces is contempt of court, yet the spectacle of a dirty mattress being hefted to and from the courtroom is not.
Of course, Anwar’s trial was not the only decision that showed subservience of judiciary to executive. Lim Guan Eng was sent to prison for publishing a pamphlet about a minor who was sent to a “home” after claiming that she had sex with a prominent politician, who remained free. Besides being charged for spreading “false information” for using the word “imprisoned” when the minor was actually merely “detained”, Lim was also sentenced to 18 months for exciting “disaffection against the administration of justice in Malaysia”. On appeal, his sentence was extended, for having the gall to, well, appeal. There were similar instances with the Defamation Act, where newspapers who attempted to argue a public interest defence were told that they had only made things worse for themselves.
However, particularly since 2001, there have been stirrings of unrest in the Judiciary. The first big indication was during the habeas corpus hearing of N Gopalakrishnan and Abdul Ghani Haroon. They were arrested under the Internal Security Act in April 2001. Their lawyers undertook a habeas corpus case (to present the convict in court to challenge his imprisonment), claiming that the detention was in bad faith and unlawful. This is almost a routine measure, where the lawyers and families manage to keep the issue of the detentions in the public eye for a short while, without any real hope that the judge will accept their arguments. Even if the Judge does accept the arguments, the experiences of Operasi Lalang detainees showed that winning the case would not equal liberty. The police re-arrested those released on the steps of the court.
Not this time. Not only did the judge order their immediate release, he also issued an order that they were not to be detained for at least 24 hours after their release. There was incredulous jubilation, tinged, inevitably with cynicism. The real test would be what happened to Justice Mohd Hishamuddin Mohd Yunus. It seems positive. He has been dealing with high profile civil cases, involving personalities such as Anwar Ibrahim and Rahim Nor. Not exactly cold storage.
His decision was rapidly followed with a Sabahan case, where soon-to-retire Justice Muhammad Kamil Awang called a by-election in Likas, after finding irregularities in the SN-controlled constituency’s 1999 election. The judge also alleged he was under pressure to find in favour of BN.
But it wasn’t all uphill. A bizarre judgement was handed down by the Federal Court in September 2004 on the remaining ISA detainees (those not detained in Selangor, but in KL), that although their arrest under the ISA had been in bad faith (mala fide) their continuing detention could not be considered in the same case. It was a decision that appears to violate all legal norms, but helped the Judiciary negotiate a sticky situation. They were not allowing the release of the detainees, yet still showing some independence by not finding in favour of the Government. It was a worrying precedent, but it did show that there was a hint of change in the air. Possibly. For the die-hard optimist.
However, the die-hard optimist is apparently being proved right. Land rights cases for Orang Asli and Orang Asal, in the Peninsula and Sarawak respectively, have seriously undermined the Government’s carte blanche to relocate indigenous communities. The pledge to halt mega-defamation suits (though undermined by a RM4.5 million award to Anwar last year) are one way of helping to defend freedom of expression.
As a micro-case, though important, the Judiciary recently upheld the right to criticise. Architect Lilian Tay had called an office shop building an ‘eye-sore’, and had been sued for defamation. The High Court upheld her right to criticise, according to The Sun report, on the grounds that “in law, criticisms of public works of art and architecture are not actionable”. Those are strong words in a country where an artiste is pursuing a defamation suit against a journalist who she overheard telling another person that her show had been a ‘failure’. The right to criticise is perhaps one of the most fundamental rights within the freedom to express. Because, simply, all art and policies can only improve with feedback.
More importantly, though, is that the Judiciary is our bulwark against state power. The banning of Lelaki Komunis Terakhir could be considered unconstitutional not only on grounds of limiting freedom of expression (Article 10) but also on grounds of equality (Article 8). Likewise the 33 books banned under the Printing Presses and Publications Act since May, the censorship forced onto arts productions, and every other freedom of expression violation that has happened in the last ten years.
And without the Judiciary taking a stance, there is little room for any optimism, of the diehard variety or otherwise. The State has shown not only that it treats these liberties with disdain, but that it is willing to curtail these liberties if there is the threat of violence. It has given the mob all the arms it needs to dictate Government policy. And the mob has not shown itself to be particularly progressive. The Judiciary is what stands between the artist and the mob. Only if our Judiciary is strong and independent do we have a hope of prevailing against the encroaching darkness.
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Sonia Randhawa is the director of Centre for Independent Journalism
First Published: 18.08.2006 on Kakiseni