COMMENT Since former prime minister Dr Mahathir Mohamad tampered with the judiciary in 1988, many Malaysians have come to doubt the independence of our courts and whether they can be depended upon to dispense justice.
And, over the years, judicial decisions in major cases, especially those involving the government, have deepened the doubts.
Confidence in the Attorney-General's Chambers (AGC) has also sunk to the lowest level. This has been compounded by its selective persecution of dissenters and opposition leaders; and suffers an oversight when it comes to favoured individuals.
For example, nothing ever came out of the VK Lingam case, despite the conclusions of the Royal Commission of Inquiry into Lingam’s involvement in judge-fixing; as well as the AGC’s decision not to appeal the acquittal of Abdul Razak Baginda, one of the prime accused in the Altantuya Shaariibuu murder trial.
Critics have even alleged that the AGC deliberately botched its prosecution of former minister Dr Ling Liong Sik for cheating the government in regard to the Port Klang Free Zone (PKFZ) scandal, so that he would be acquitted by the court.
Then of course there is the case of Anwar Ibrahim and his infamous Sodomy II trial. He was acquitted in 2012 but found guilty by the Court of Appeal on March 7, 2014.
The appeal hearing was rushed through, apparently to stop Anwar from standing in the Kajang by-election scheduled for March 23, reinforcing the widespread belief that the sodomy charge was trumped up and part of BN's political conspiracy to put Anwar away and destroy his political career.
After all, most people have become immune to BN's attempts to vilify him with two sodomy convictions and the release of a sex video or two; they don't care any more if Anwar is indeed guilty. They now perceive Anwar as victim and BN as persecutor. They see BN as a juggernaut afraid of one man.
It wasn't stopping at Anwar either. Four days after his Sodomy II conviction, on March 11, the High Court fined DAP chairperson Karpal Singh RM4,000 after having found him guilty of sedition on Feb 21.
Since the fine exceeded the constitutional limit of RM2,000, Karpal was automatically disqualified from continuing to be an MP. However, he managed to hold on to his parliamentary seat by filing an appeal against his conviction and sentence.
Subsequently, in early April, the prosecution filed a cross-appeal to impose a heavier sentence on Karpal. The Bukit Gelugor MP acknowledged that the prosecution was entitled to do that. He also said, "They want me in jail." A person found guilty of sedition may be sentenced to three years' imprisonment, a RM5,000 fine, or both.
And why was Karpal found to have committed sedition? Because he had said, on Feb 6, 2009, the black day in recent Perak history when Pakatan Rakyat was robbed of the state government by BN, that the removal of Mohammad Nizar Jamaluddin as menteri besar and the appointment of Zambry Abdul Kadir as his replacement by the Sultan of Perak could be challenged in a court of law.
What Karpal said is true. What is seditious about it? The sultan's action can indeed be brought before the Special Court. Karpal was merely stating a fact. His conviction is thus seen as an attempt to stifle freedom of expression and further persecute the opposition.
Karpal’s conviction on sedition was condemned by local and foreign lawyers' groups, including the Malaysian Bar Council and the Geneva-based International Commission of Jurists, which slammed the government for using a "draconian and outdated" law to deter lawyers from expressing their views freely on legal matters.
As it turned out, the prosecution would not have its satisfaction in court. Karpal died in a road accident on April 17, 2014.
Then the government went after the DAP's vice-chairperson and Seputeh MP, Teresa Kok. Kok had posted on YouTube in February 2014 the ‘Onederful Malaysia CNY 2014' satire, in which she played a talk show host interviewing a panel on what Malaysians could expect in the Year of the Horse. In May, she was charged with sedition for it.
Her charge sheet noted that she had allegedly insulted Malays, Islam, the monarchy, the security forces, Prime Minister Najib Abdul Razak and his wife, Rosmah Mansor.
Out to trample opposition
I have seen the video and can vouch that the video is not one bit seditious. By charging Kok with sedition, the government shows it doesn't understand the meaning of satire. It also shows it is obviously out to trample the opposition.
How can ‘Onederful Malaysia CNY 2014’ be considered seditious when Perkasa president Ibrahim Ali can get away with calling for the burning of the Bible and Isma (Ikatan Muslimin Malaysia) freely says the Chinese came to Malaya as intruders and conspired with the British to "oppress and bully the Malays"?
It is clear that the Attorney-General's Chambers needs to be revamped to truly serve the country, instead of the government.
At the same time, we need to restore the judiciary to its former position of glory and credulity. It should not be manipulated by the executive to serve its political purposes. The judiciary needs to be independent.
To make it truly independent, we have to reaffirm the principle of separation of powers and the system of check-and-balance that was originally entrenched in our federal constitution.
This model of governance allows the three branches of government - the legislative (in our case, parliament), the executive and the judiciary - to function independently of one another, each with its own separate and independent power.
In 1988, under the Mahathir government, Parliament amended Article 121 of the constitution and changed "... the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status ..." to "There shall be two High Courts of co-ordinate jurisdiction and status ..." (the two being the High Court in Malaya and the High Court in Sabah and Sarawak).
Mahathir and his MPs also replaced "... and in such inferior courts as may be provided by federal law" with "... and such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law".
This brought about the perception that the judiciary is subservient to the executive, deprived of its inherent jurisdiction, confined to merely interpreting and implementing acts of Parliament, no longer able to make and develop common law. In short, its power appears to have been subsumed.
But this may not be so in actuality. It seems to be because the 1988 amendment has given rise to confusion all round, to the extent that some judges feel, according to law professor Shad Saleem Faruqi, they have become "mere agents of Parliament" instead of "independent pillars of the Federal Constitution".
To dispel this confusion once and for all, we need to have the 1988 amendment re-amended. In so doing, we reinstate the original wording of Article 121 of the constitution and restore the principle of the separation of powers. Above all, we reaffirm that judicial power belongs to the judiciary.
But will the BN government move for such a re-amendment? Perhaps it will, when rabbits stop being randy and vultures turn vegetarian.
The article is extracted from KEE THUAN CHYE’s new book, ‘Can We Save Malaysia, Please!’ The book is dedicated to the memory of Zainon Ahmad, Irene Fernandez and Bernard Khoo aka Zorro, and also to those who are working towards a better Malaysia. It is available in all major bookstores.