Med­dling in the ju­di­ciary?

Per­cep­tions of ju­di­cial in­ter­fer­ence are open to in­ter­pre­ta­tion.

The Star Malaysia - Star2 - - INSIGHT - BHAG SINGH star2@thes­tar.com.my

ANEWS re­port stat­ing that Tun Dr Ma­hathir Mo­hamad re­futed al­le­ga­tions that he had in­ter­fered with the ju­di­ciary, has drawn at­ten­tion from dif­fer­ent seg­ments of the pop­u­la­tion. Each has its own views on such a sit­u­a­tion.

Dr Ma­hathir has blasted the al­le­ga­tions that he had cowed the ju­di­ciary dur­ing his term as prime min­is­ter, call­ing such ac­cu­sa­tions “fit­nah” or defama­tion. Say­ing that he is pre­pared to swear on the Qu­ran that he did not in­ter­fere with the ju­di­ciary, Dr Ma­hathir adds that it would be a worth­less ex­er­cise to sue those in­volved.

Ac­cept­ing as true what Dr Ma­hathir says, the ques­tion arises as to whether there has been in­ter­fer­ence or at­tempts to in­ter­fere with ju­di­ciary at any time. With­out point­ing fin­gers at any­one, there are dif­fer­ent as­pects in­volved.

Some years ago, there was a per­cep­tion that cer­tain judges or regis­trars were told to de­cide a mat­ter in a par­tic­u­lar way. I cer­tainly know of one such in­stance, in which I felt as though the of­fi­cer of the court was ei­ther tak­ing in­struc­tions or mak­ing de­ci­sions to please a par­tic­u­lar party be­hind it.

How­ever, I must say that such in­stances are the ex­cep­tion rather than the rule.

But this is of lit­tle con­so­la­tion to those who are faced with such a sit­u­a­tion, and feel let down.

The ques­tion that arose in my mind at that time was whether the of­fi­cer con­cerned was act­ing in that man­ner be­cause he was di­rected to do so or out of his own ini­tia­tive to please some­one. Of course, I have never been able to find an an­swer to that ques­tion.

An­other ques­tion that arises is: What is meant by in­ter­fer­ence? Is this through the pass­ing of spe­cific laws? If such is the case, then the re­spon­si­bil­ity for that law lies with the Mem­bers of Par­lia­ment (MPS) who voted for such a decision.

In­tegrity

Such an as­ser­tion re­flects on the ca­pa­bil­i­ties and in­tegrity of the MPS. Such laws may have been passed by Par­lia­ment but how many MPS stood up against it? If in­deed there be laws that are deemed to have cowed the ju­di­ciary, then all the mem­bers of the leg­isla­tive body must bear re­spon­si­bil­ity.

If they voted out of loy­alty to their party or any other per­son, this does not jus­tify what they did. MPS owe a duty to the coun­try and its peo­ple.

Dr Ma­hathir has al­ways been clear about the stand he takes. In 1986, he made state­ments about the ju­di­ciary, among oth­ers, in an in­ter­view un­der the head­line, I know how peo­ple feel. It was pub­lished in Time Mag­a­zine and con­tained the fol­low­ing pas­sage on the courts: “The Ju­di­ciary says (to us), ‘ Although you passed a law with a cer­tain thing in mind, we think that your mind is wrong, and we want to give our in­ter­pre­ta­tion’. If we dis­agree, the courts will say, ‘We will in­ter­pret your dis­agree­ment’. If we go along, we are go­ing to lose our power of leg­is­la­tion.

“We know ex­actly what we want to do, but once we do it, it is in­ter­preted in a dif­fer­ent way, and we have no means to rein­ter­pret it our way. If we find out that a court al­ways throws us out on its own in­ter­pre­ta­tion, if it in­ter­prets con­trary to why we made the law, then we will have to find a way of pro­duc­ing a law that will have to be in­ter­preted ac­cord­ing to our wish.”

This re­sulted in an ap­pli­ca­tion to the court for an or­der of com­mit­tal for con­tempt of court by Lim Kit Siang. The mat­ter came up be­fore the High Court be­fore Jus­tice Harun Hashim, and then went to what was then the Supreme Court, the com­bined pre­de­ces­sor of our present Fed­eral Court and Court of Ap­peal. where Lord Pres­i­dent Salleh Abas, as he then was, re­ferred to the state­ment as a mere ar­tic­u­la­tion of the ex­ec­u­tive’s frus­tra­tion in not be­ing able to achieve its ob­jec­tives in mat­ters where the in­ter­ven­tion of the court has been sought to some avail. The way the po­si­tion was expressed was per­haps some­what in­ju­di­cious, in that it may not con­ceiv­ably be open to mis­con­struc­tion but it did not amount to an at­tack on the courts as to con­sti­tute a con­tempt but only stemmed, from a mis­con­cep­tion of the role of the courts. The ap­peal was dis­missed. To some, this could be per­ceived as the court be­ing proPrime Min­is­ter. How­ever, if the decision is care­fully con­sid­ered, it was con­sis­tent with the law and de­ci­sions made in other Com­mon­wealth coun­tries.

In the course of all those de­ci­sions, the courts have al­ways taken the stand that on such mat­ters, a min­is­ter or prime min­is­ter is to have greater lee­way to ven­ti­late such views.

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