Meddling in the judiciary?

Perceptions of judicial interference are open to interpretation.

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.

Disrepute

The applicant said that the “statement by the respondent had scandalised the judiciary in the country, in that read as a whole, the words uttered by the respondent referred to, brought the judiciary into disrespect, disrepute, offend its dignity and was an affront to its majesty.”

It was said that the words were uttered by the respondent to needlessly embarrass the judiciary. The said words also amounted to a challenge to the authority of the judiciary and the doctrine of separation of powers guaranteed by the Federal Constitution. The said words amounted to threatening and intimidating the judiciary, it was argued.

Therefore, in the case of Lim Kit Siang vs Dr Mahathir Mohamad, the court had to decide whether the statement amounted to contempt of court.

Referring to the statement made, Justice Harun said: “The court should not be oversensitive to criticism. The impugned statement, read objectively, is not even a criticism of the court, far less scandalising it or a threat to the independence of the judiciary. In essence, it is the despair of a prime minister on the inadequacies of the law, and more particularly, the officials whose duties are to translate the policies and aims of the administration into the law to ensure a more effective government... I hold that the respondent’s statement ex facie does not amount to a contempt of court.” And accordingly dismissed the application.

The matter was taken up on appeal to the Supreme Court 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.