Playing by the Rule of Law

separation of power

In the final days leading to Dato’ Sri Najib Razak’s final appeal against his conviction and sentence in the Federal Court, two schools of thought divided the country. One was convinced that “justice delayed is justice denied”, while the other reasoned “justice hurried is justice buried”.

When controversial blogger Raja Petra Kamarudin posted a leaked draft judgement on his website, and it became plenty apparent that the five-member panel of the apex court led by Chief Justice Tun Tengku Maimun was going to rule against Najib, it understandably caused an uproar amongst some people over perceived judicial bias.

Nonetheless, it still doesn’t justify deliberate attacks on the dignity of the Judiciary. A 30-year-old man reportedly even made death threats against Tengku Maimun. He was swiftly apprehended by the police, and rightly so.

In any functional democracy, the Courts must be allowed the room and independence — sufficiently insulated from the influences of the Executive, Legislative and political parties — to pass judgement without fear or favour. The separation of powers as enshrined within the Federal Constitution, i.e. the supreme law of the land, must be upheld in order to preserve a working system of checks and balances.

To many, Najib’s conviction lends credence that the third estate — the Judiciary — wields the ability to conduct a trial squarely on the merits of a case and evaluate it from the lens of the law.

However, set against the same backdrop, one could not help but wonder if it was someone other than Najib (say, Dato’ Seri Anwar Ibrahim, Lim Guan Eng or maybe Syed Saddiq) in the docks on July 23rd, 2022, would the same group of people who tout the impartiality of the Chief Justice still do the same?

Would they accord the same respect to the Federal Court then? Or would they take to the streets and protest?

The Importance of Judicial Independence
It cannot be overstated how crucial judicial independence is to the rule of law, the protection of human and political rights, and the praxis of justice. When the independence of our Judiciary is under threat, the nation comes under threat.

None of us wants a recurring of the 1988 judicial crisis, after all.

In 1988, the fourth Prime Minister Tun Dr Mahathir Mohamad grew increasingly unhappy with the Supreme Court for not ruling in his favour the Umno 11 lawsuit, and for releasing political dissidents detained under Ops Lalang.

He thereupon brute-forced constitutional amendments to weaken the powers of the Judiciary. He also suspended, then eventually removed Tun Salleh Abbas, the erstwhile Lord President of the Supreme Court, alongside five other Supreme Court judges in what was seen to be an improperly constituted tribunal

”Disappointed is not the word. Disgusted,” were the words Tunku Abdul Rahman, our Father of Independence, said to the New York Times as he expressed his dismay at Mahathir’s transgression against the Judiciary.

Naturally, Mahathir’s supporters bristled at Tunku’s remarks, but perversely, it was none other than the future face of the Reformasi movement, Anwar Ibrahim, who leapt to Mahathir’s defence by launching derogatory attacks against the founding father.

“A grand old man who has done his bit. But I don’t know if he’s even conscious of what he is saying,” Anwar told Tunku.

Ten years later, Anwar would fall out of grace with Mahathir and be charged with sodomy.

In the final hearings of his second sodomy case in 2015, Anwar would go on to address the bench of five judges and lament, “You have become partners in crime in the murder of judicial independence.” It’s not clear if he was trying to preempt a national protest to his political advantage, or if the irony of his words was simply lost on him.

The lesson here? Judicial independence must be safeguarded, and should not be reduced to an arbitrary concept beholden to certain desired outcomes. It means judges must be free to make impartial albeit politically unpopular decisions, and come hell or high water, we must respect it.

It goes without saying that such immunity and independence must be balanced with some form of accountability. In Malaysia, the avenue to hold judges accountable is ascribed to their written judgements which are transparent and open to the public.

However, we must not stop there. Where there is great power there is great responsibility. Members of the judiciary are fundamentally held to the highest standards of ethics. Quite often to the average citizen, it is not enough for judges to be accountable, judges must also be seen to be objective and impartial at all times. 

The number of people who are concerned about some of the decisions in Najib’s SRC trial shouldn’t be overlooked. In particular, the decisions to deny Najib’s new legal team the time to prepare, and also the decision to dismiss the application to adduce new evidence — these have regrettably led to supporters questioning if the judges were bound by favour. 

Whether justice has been dispensed without fear or favour should be the main contention. Exoneration comes from arguing the merits of the case itself, and not via a recusal of a sitting judge.

History should not repeat itself. Respect for the rule of law has to be observed in all spectrums and strata of our political fabric.

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