The Federal Constitution establishes\nand protects the Judiciary. In turn, the Judiciary’s main task is to protect\nus, the Malaysian citizen. There are signs that its almost uninterrupted\ndecline from the debacle of the Tun Salleh Abas trial has been arrested. But\nthe fundamental liberties protected by the Constitution, from Article 5’s\nguarantee of a fair trial to Article 13’s guarantee of protection of property,\nrely on the Judiciary and its independence.<\/p>\n\n\n\n
For those young or foolhardy enough\nto not know about the Tun Salleh Abas trial, this culminated in the Prime\nMinister then dictating that the Lord President of the Supreme Court of\nMalaysia be sacked. This is not a good thing. It, along with other reforms made\nby the Mahathir administration, meant that the Judiciary is subservient to the\nExecutive branch of the government, which executes the law. Given that\nParliament and the Agung had already been shackled, it meant one of the last\ncurbs to potential abuse of Executive power was removed. And we’ve seen the\nresults, culminating in the farce that was Anwar’s trial. Talking about SMS\ndivorces is contempt of court, yet the spectacle of a dirty mattress being\nhefted to and from the courtroom is not.<\/p>\n\n\n\n
Of course, Anwar’s trial was not the\nonly decision that showed subservience of judiciary to executive. Lim Guan Eng\nwas sent to prison for publishing a pamphlet about a minor who was sent to a\n“home” after claiming that she had sex with a prominent politician,\nwho remained free. Besides being charged for spreading “false\ninformation” for using the word “imprisoned” when the minor was\nactually merely “detained”, Lim was also sentenced to 18 months for\nexciting “disaffection against the administration of justice in\nMalaysia”. On appeal, his sentence was extended, for having the gall to,\nwell, appeal. There were similar instances with the Defamation Act, where\nnewspapers who attempted to argue a public interest defence were told that they\nhad only made things worse for themselves.<\/p>\n\n\n\n
However, particularly since 2001,\nthere have been stirrings of unrest in the Judiciary. The first big indication\nwas during the habeas corpus<\/em> hearing\nof N Gopalakrishnan and Abdul Ghani Haroon. They were arrested under the\nInternal Security Act in April 2001. Their lawyers undertook a habeas corpus<\/em> case (to present the\nconvict in court to challenge his imprisonment), claiming that the detention\nwas in bad faith and unlawful. This is almost a routine measure, where the\nlawyers and families manage to keep the issue of the detentions in the public\neye for a short while, without any real hope that the judge will accept their\narguments. Even if the Judge does accept the arguments, the experiences of\nOperasi Lalang detainees showed that winning the case would not equal liberty.\nThe police re-arrested those released on the steps of the court.<\/p>\n\n\n\n Not this time. Not only did the\njudge order their immediate release, he also issued an order that they were not\nto be detained for at least 24 hours after their release. There was incredulous\njubilation, tinged, inevitably with cynicism. The real test would be what\nhappened to Justice Mohd Hishamuddin Mohd Yunus. It seems positive. He has been\ndealing with high profile civil cases, involving personalities such as Anwar\nIbrahim and Rahim Nor. Not exactly cold storage.<\/p>\n\n\n\n His decision was rapidly followed\nwith a Sabahan case, where soon-to-retire Justice Muhammad Kamil Awang called a\nby-election in Likas, after finding irregularities in the SN-controlled constituency\u2019s\n1999 election. The judge also alleged he was under pressure to find in favour\nof BN.<\/p>\n\n\n\n But it wasn’t all uphill. A bizarre\njudgement was handed down by the Federal Court in September 2004 on the\nremaining ISA detainees (those not detained in Selangor, but in KL), that\nalthough their arrest under the ISA had been in bad faith (mala fide) their\ncontinuing detention could not be considered in the same case. It was a\ndecision that appears to violate all legal norms, but helped the Judiciary\nnegotiate a sticky situation. They were not allowing the release of the\ndetainees, yet still showing some independence by not finding in favour of the\nGovernment. It was a worrying precedent, but it did show that there was a hint\nof change in the air. Possibly. For the die-hard optimist.<\/p>\n\n\n\n However, the die-hard optimist is\napparently being proved right. Land rights cases for Orang Asli and Orang Asal,\nin the Peninsula and Sarawak respectively, have seriously undermined the\nGovernment’s carte blanche<\/em> to\nrelocate indigenous communities. The pledge to halt mega-defamation suits\n(though undermined by a RM4.5 million award to Anwar last year) are one way of\nhelping to defend freedom of expression.<\/p>\n\n\n\n As a micro-case, though important,\nthe Judiciary recently upheld the right to criticise. Architect Lilian Tay had\ncalled an office shop building an ‘eye-sore’, and had been sued for defamation.\nThe High Court upheld her right to criticise, according to The Sun report, on\nthe grounds that “in law, criticisms of public works of art and\narchitecture are not actionable”. Those are strong words in a country\nwhere an artiste is pursuing a defamation suit against a journalist who she\noverheard telling another person that her show had been a ‘failure’. The right\nto criticise is perhaps one of the most fundamental rights within the freedom\nto express. Because, simply, all art and policies can only improve with\nfeedback.<\/p>\n\n\n\n More importantly, though, is that the\nJudiciary is our bulwark against state power. The banning of Lelaki\nKomunis Terakhir<\/em> <\/em>could be considered unconstitutional not only on grounds of limiting\nfreedom of expression (Article 10) but also on grounds of equality (Article 8).\nLikewise the 33 books banned under the Printing Presses and Publications Act\nsince May, the censorship forced onto arts productions, and every other freedom\nof expression violation that has happened in the last ten years.<\/p>\n\n\n\n And without the Judiciary taking a\nstance, there is little room for any optimism, of the diehard variety or\notherwise. The State has shown not only that it treats these liberties with\ndisdain, but that it is willing to curtail these liberties if there is the\nthreat of violence. It has given the mob all the arms it needs to dictate\nGovernment policy. And the mob has not shown itself to be particularly\nprogressive. The Judiciary is what stands between the artist and the mob. Only\nif our Judiciary is strong and independent do we have a hope of prevailing\nagainst the encroaching darkness.<\/p>\n\n\n\n ~~~ <\/p>\n\n\n\n Sonia Randhawa is the director of Centre for Independent Journalism <\/p>\n\n\n\n First Published: 18.08.2006 on Kakiseni <\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" 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 […]<\/p>\n","protected":false},"author":11,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"iawp_total_views":2,"footnotes":""},"categories":[34,3538,3540,3543],"tags":[4084,3976,3598,4090,4089,4080,712,4092,4095,3792,3597,3793,4088,4093,4091,4085,4087,4083,4081,4094,3306,3798,4086,4082],"language":[7523],"writer":[7635],"class_list":["post-27584","post","type-post","status-publish","format-standard","hentry","category-articles","category-censorship","category-film","category-politics","tag-abdul-ghani-haroon","tag-anwar-ibrahim","tag-article-10","tag-article-13","tag-article-5","tag-article-8","tag-censorship","tag-defamation-act","tag-equality","tag-federal-constitution","tag-freedom-of-expression","tag-internal-security-act","tag-judiciary","tag-lilian-tay","tag-lim-guan-eng","tag-mohd-hishamuddin-mohd-yunus","tag-muhammad-kamil-awang","tag-n-gopalakrishnan","tag-operasi-lalang","tag-orang-asal","tag-orang-asli","tag-printing-presses-and-publications-act","tag-rahim-nor","tag-tun-salleh-abas","language-english","writer-sonia-randhawa"],"acf":[],"_links":{"self":[{"href":"https:\/\/myartmemoryproject.com\/ms\/wp-json\/wp\/v2\/posts\/27584","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/myartmemoryproject.com\/ms\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/myartmemoryproject.com\/ms\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/myartmemoryproject.com\/ms\/wp-json\/wp\/v2\/users\/11"}],"replies":[{"embeddable":true,"href":"https:\/\/myartmemoryproject.com\/ms\/wp-json\/wp\/v2\/comments?post=27584"}],"version-history":[{"count":2,"href":"https:\/\/myartmemoryproject.com\/ms\/wp-json\/wp\/v2\/posts\/27584\/revisions"}],"predecessor-version":[{"id":38721,"href":"https:\/\/myartmemoryproject.com\/ms\/wp-json\/wp\/v2\/posts\/27584\/revisions\/38721"}],"wp:attachment":[{"href":"https:\/\/myartmemoryproject.com\/ms\/wp-json\/wp\/v2\/media?parent=27584"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/myartmemoryproject.com\/ms\/wp-json\/wp\/v2\/categories?post=27584"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/myartmemoryproject.com\/ms\/wp-json\/wp\/v2\/tags?post=27584"},{"taxonomy":"language","embeddable":true,"href":"https:\/\/myartmemoryproject.com\/ms\/wp-json\/wp\/v2\/language?post=27584"},{"taxonomy":"writer","embeddable":true,"href":"https:\/\/myartmemoryproject.com\/ms\/wp-json\/wp\/v2\/writer?post=27584"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}