JUDICIAL CRISIS 1988- A TRAGEDY STAGED BY THE BAR

images Ambiga

Independent Committee into Dismissal of Judges in 1988.

INTRODUCTION

“The myth about existence of things only scientists can find and only things theories predict, is just that, a myth. Out of an infinite number, diversity and variety of myths made possible by the mystery of existence, atheists arbitrarily choose to believe in one pessimistic myth about existence of only things scientists can find; and only things theories predict” (Kevin M. McDaniel).

Lawyers likewise have settled upon us their myth that only lawyers are able to distinguish between the truth and fact on the one hand, from fiction and lies on the other, as a rational default position. And there are those who insist, a belief in such myths is necessary in order to be rational, law abiding, fair, just or simply sane.

However because the truth is just that, a myth is also a myth, it is also perfectly reasonable therefore to choose the most optimistic ‘myth’ about their (lawyer’s) version of the law as a rational default position.

Such a rational default position when pushed hard enough with other well worn urban myths, anecdotal evidence of corruption, and the perceived dominance by one person in Malaysia’s politics), in this instance their bette noir former prime minister of Malaysia Dr. Mahathir Mohammed, it leads inevitably to acceptance of the myth about the law and the Malaysian Bar’s interpretation of it;

“that lawyers can find things that legal conventions and theories predict; and everything else that enables us to have the highest esteem in their beliefs and their purposes”. (my emphasis).

I will refrain from quoting or paraphrasing Kevin M. McDaniel any further. The impact and the dimensions of his thoughts as expressed are nonethless critical to understanding at the introductory level, any analysis of the Report of the Panel of Eminent Persons to examine the 1988 Judicial Crisis in Malaysia (“the Report” and “the Panel”).

A proper and balanced analysis of the Report and the events that give rise to it may be undertaken without embellishment or adornment of the facts as they are now known.

THE MYTH OF “Terms of Reference

The Panel of its own material was a self serving forum. The composition and authority by which it came into existence was equally a manifestation of that same self serving interests of the sentient mind behind the Panel at all times, the Malaysian Bar.

In an effort to lend legitimacy, a cosmetic semblance of dimension and depth to the Panel and its purpose, the Malaysian Bar pulled together a raft of loosely knit interest groups referring to these as ‘various other groups’ in support of its Star Chamber.

However on closer examination it could hardly be said that these various other groups were in any way representative of the broader community; or that they were independent or impartial to legitimise the inquiry. And finally for good measure in its list of cohorts the Malaysian Bar adds the media, but is careful to be non specific of this fourth estate.

INDEPENDENCE AND LEGITIMACY 

By the Malaysian Bar’s involvement in the inquiry, the Panel and its findings are deprived of the character of independence it craves. Not that removal of the Malaysian Bar’s involvement would have in any way have necessarily cured that defect.

One merely has to consider the mix, the political complexion and position of the Malaysian Bar -and those of the other named groups driving the inquiry- had already adopted against the undisclosed target and object of their purpose. One Dr. Mahathir Mohammed.

More important, one is left wondering what the real purpose of the exercise was; considering the Panel lacked judicial, quasi judicial, legal or moral authority. It lacked  the coercive force of law that could in its wake have prescribed, pursued or enforced the legal remedies the Malaysian Bar had claimed to be pursuing by the Panel.

The Panel was incapable of recommending prosecution or referring its findings to a higher tribunal with powers of reviewing the events of 1988. The Panel had no capacity, powers, coercive force or influence to affect its desired outcomes, whatever these may have been. The real legal objectives of the Panel were obscured by the heat of vengeance. Though this was not quite stated in these same terms in its reference. In short the resulting Report is of little legal, jurisprudential,moral or legal significance.

More damaging to the credibility of those behind the idea to set up this Panel are the statements of the Malaysian Bar delivered through its then president Ambiga Sreenivasan. Her statements ridicule the Malaysian Bar’s claims of upholding the virtuous principles of fairness, equity, justice and transparency in its endevour to bring closure to a matter otherwise long dead and buried.

The Panel it seems turned out to be nothing more than a tool designed to exact vengeance from an individual not of its ranks. To them it appears he made mockery of their professional incompetence and the arrogance of their ignorance.

BALANCE 

An answer to the legal and public interest challenges confronting the Malaysian Bar in its pursuit of this adventure, lies in the dichotomy of the perceptions of law and justice. These concepts as perceived by the Bar as legal practitioners and as officers of the courts on the on the one hand : and the perception of those same concepts by consumers of legal services including the executive on the other, appears to be where the real problem lies.

The problem though for the Malaysian Bar, appears to have arisen from its inability to draw the distinction between justice as a process and justice as an outcome.

The absence of a consultative process to include opposing points of view may forever remain a blemish on the credibility of the Malaysian Bar unless of course its members who understand the flaws in the proceedings speak up about it sooner rather than later.

The Panel’s findings appear to have been pre determined judging from the selective nature of evidence put before it and accepted by it from one interested party to these proceedings alone.

In the absence of any countervailing evidence or a contradictor submitted by any of the other interested parties, the subject of Inquiry, either in terms of written or oral submissions, the entire purpose of the Inquiry, beginning with the process of submissions down to the selection of the Panel, was conceptually flawed from a legal, constitutional and moral standpoint.

A fatal flaw in the integrity of the Panel and its findings lay in its composition. It was an appointment by one side. Being a little unkind I would go so far as to suggest it bore all the hallmarks of a Kangaroo Court or a Star Chamber. 

THE ISSUES

It is yet to be determined (20 years on form date of the event of 1988 and from publication of the Panel’s Report in 2008) what grievous offence so vital to the integrity of Malaysia’s judiciary or its constitution was committed by the sacking of former justice Salleh Abbas and his colleagues?: What was it about the sacking that was so radically different to similar events that occurred in other commonwealth jurisdictions, for it to be so doggedly pursued by the Malaysian Bar and its allies?

There are three branches of government recognized in the traditions of the Westminster system of constitutional government. The executive, judiciary and the legislature. And like the father, the son and the holy spirit, they are not three gods but three persons in the one godhead. And as it occurs in that other holy trinity, the trinity in government vests much power in one of the three. That one being the prime minister.

Standing between these like a geographic border, an imaginary line between states, is the equally invisible and sometimes illusory doctrine of the separation of powers. As fictional as any other doctrine (or law) sometimes may seem in practice, the fact remains that these doctrines and laws are fundamentally recognised more in the breach than for their observance at anytime anywhere.

THE OPENING SALVO- A BROADSIDE AT THE WRONG SIDE

In 1988 a powerful and impatient executive, sick of the ‘cap in hand’ culture so inimical to a rapidly developing Malaysia, burdened by  sycophants and interlopers in the civil service (and the judiciary), confronted what was perceived to be the omnipotence of the judiciary. In doing so the executive appears to have uncovered a nascent conspiracy within a covert political group operating by stealth in the darker corners of the courts and the legal fraternity.

Not laid before the Panel however, was the missing and critical evidence that, certain elements of the judiciary then attempting encroachment into the role of the executive and legislature through other forums, was discovered and confronted.

The legislature by its chief chose to rise up to the challenge. He called the bluff of the guardians of that seemingly invincible doctrine and crossed that proverbial proscribed line of the constitution. Interestingly no one died as a result. The country did not collapse and the sky did not fall in as predicted by the legal fraternity in Malaysia.

Malaysia instead went on to attract record foreign investment.It rid itself of much of its third world status, except of course in the minds of those who blindly worship the west and all of its institutions. 

In examining the relevance, the importance and the impact of this seminal legal event which has farcically grown into a modern day Spanish inquisition, one needs to take a closer look at the conventions, doctrines and laws that govern the conduct of the three branches of government.

To make proper sense of the Report it would be useful to understand the various constitutional conventions, doctrines and laws in the context of the doctrine of the separation of powers first. 

A next logical step would be an understanding of the individual powers and roles of each of the three branches of government, their intertwined relationships and the difficulties that arise with maintaining the separation of powers whilst running government effectively.

Precedent, comparable situations within the commonwealth and lessons on how more mature systems have confronted and disposed of similar difficulties are all necessary tools in understanding the constitution of Malaysia, the structure of which  Malaysia inherited from Britain at attaining its independence.

BACKGROUND IN BRIEF

In this whole saga of the Inquiry there are two protagonists. One being a former prime minister of Malaysia, unrepresented before the Panel and without any input to controvert or to contribute to the terms of reference. The terms of reference broadly speaking in this instance is a road map created by the other protagonist, prominent members of the Malaysian Bar.

To add to the farce, neither the Panel nor its Report were either independent or impartial, evidenced in this sense by a statement attributed to the president of the Malaysian Bar following release of the Report.

BIAS PERCEIVED AND ACTUAL

The president of the Malaysian Bar Datuk Ambiga Srinivasan unfortunately and perhaps recklessly appears to confirm what has long been suspected as bias in the minds of elements of the Malaysian Bar as protagonist.

It appears from the evidence that the Malaysia Bar, either on its own, or acting as a conduit of the former Lord President Tun Salleh Abbas and other disgruntled elements within government wanting to ventilate their anger on Dr. Mahathir created the Panel of Inquiry to exact a form of revenge against him.

That part of Ambiga’s speech that seeks to convey the Malaysian Bar’s settled position prior to the appointment of the Panel and its Report appears to be contained in the following quote from her speech;

the bar has been steadfast in supporting the judges whom we knew had suffered a gross injustice in 1988”.

The operative words in that statement above being “whom we knew had suffered a gross injustice in 1988.

By what means and how did Dato Ambiga conclude she”knew” the events of 1988 resulted in a “gross injustice (to the judges) in 1988” she clearly fails to establish.  

Any evidence to support such a bold prescient statement and the claim behind it should have been placed not before the Panel but a properly constituted tribunal or court within Malaysia for it to have been examined in light of all “evidence” put earlier before the Panel.

It is easy to draw the inferences by reference to that particular element of Datuk Ambiga’s speech, that perceived bias can be said to have been present within the minds of the Malaysian Bar (and by implication their stalking horse the Panel) prior to empanelling the so called assembly of Eminent Persons.

And by virtue of that element of perceived bias, now confirmed in her speech which turns out to be actual bias, participation by the Malaysian Bar in the process at any level of the Inquiry has clearly tainted the integrity and independence of the Panel.

It appears conclusive that the Panel was clearly stacked. This therefore now begs the question; “should the Panel have continued with the process, in the absence of any input from any other party to its proceedings?” perhaps inclusion of a party that could have reasonably and validly represented the interests of Dr. Mahathir or the government at the Inquiry; or even a party appearing Amicus who could have validly assisted the Panel or provided evidence to controvert the assumptions laid before the Panel.

And finally, was this a witch hunt by the Malaysian Bar as it appears to be.And if so, for what valid reasons was the Malaysian Bar seeking to proceed with the Panel of Inquiry 20 years after the event?

Considering the distinct possibility that with the death and ageing of many of the witnesses, the quality of the evidence available could have well been eroded if not rendered unreliable and compromised for those very same reasons of the effluxion of time was it safe to proceed with the Inquiry?

REMOVAL OF JUDICIAL OFFICERS 

There is ample evidence and a plethora of material from all over the commonwealth including nations from wherein members of the Panel were selected to show clearly that removal of judicial officers is not as sacrosanct or rare as is made out to be by the Panel and the Malaysian Bar in their findings.

In fact a lack of understanding of the conventional doctrine of the separation of powers appears to be where the real problem lies.

Examples of Breaches of Doctrines and Conventions 

In 1975 the popularly elected government of Edward Gough Whitlam in Australia was sacked by the then governor general of Australia the late Sir John Kerr on the advice of members of parliament with the concurrence and written opinion of a High Court judge, Sir Harry Gibbs.

There was much debate that followed at every level of Australian society. Recriminations followed. But the debate remained at a mature and although emotional level relevant where valid arguments given the opportunity to be ventilated, controverted and argued fairly won the day. The winner was in the end a more politically mature Australia.

The incident it was later discovered with the benefit of some research by scholars not to have been unprecedented. A previous government in the 1930’s in the state of New South Wales had also been sacked in similar circumstances by the governor in breach of a convention.

INTERFERENCE IN THE OFFICE AS OPPOSED TO THE EXERCISE OF POWER

Interference in any of the three arms of government by the other is generally perceived as being detrimental to the independent and efficient functioning of government. It has the potential to erode the independence of each of the three arms of government producing potentially undesirable outcomes that in theory could lead to a dictatorship.

There is an attempt and a convenient one at that to re cast the events of 1988 into an act that was illegal or unlawful perpetrated by one individual, that being the prime minister of Malaysia during that period, an event for which its is implied there were disastrous consequences for the integrity of the judiciary and the doctrine of separation of powers.

What’s not understood or clearly explained is the fact that even if Dr. Mahathir did sack the judge, his actions in doing so was neither unlawful, unprecedented nor one which the prime minister (assuming he did it alone) did not have the legal power at his disposal to carry out. Even if he did sack the judge and failed to follow procedure as laid out in the constitution there is nothing to suggest that he may not have cured the procedural defect subsequently or retrospectively. The fact remains that the power did lie with his government to remove members of the judiciary even if that meant doing it without an address to both houses of parliament.

50 WAYS TO LEAVE YOUR LOVER

There are many instances where judges have been removed by the executive simply making the tribunals in which judges sit or the individual positions of a sitting judge redundant. A particular case in point which occurred in Australia in the 1990’s, Australian (now retired) High Court Justice Michael Kirby in his foreword contribution to Tun Salleh Abbas’ book “May Day” makes reference.

A judicial officer of the Industrial court in Australia was practically removed from office in this way. There was no reference to both houses of parliament no tribunal to inquire into his conduct. Just simply a redundancy of his position was declared and the judicial officer was thus removed from office.

In doing so the executive and the legislature had simply overcome the burden of having to carry out the task through the conventional means of having to proceed through the cumbersome exercise only after an address to both houses of parliament.

COMPOSITION OF THE TRIBUNAL

More recently of course there was the case of the sacking of the chief justice in Pakistan which resulted in rioting and mass hysteria by the bar in that country and by supporters of opposing political parties.

One notes that Pakistan which since its independence from Britain in 1948 has remained a defacto theocracy or military dictatorship, has had limited experience as a democracy. The events referred to recently there occurred under a military dictatorship in a fractured lawless society which Malaysia is not.

The Panel member from Pakistan therefore may not have been a good choice considering her limited exposure to the practical application of conventions, the rules and the workings of an independent bench and a government in a democratic environment.

The notorious case of the sacking and jailing of former Queensland Chief Magistrate Di Fingleton is, another case in point. Australia has had a number of high profile incidences of reported judicial misconduct (apart from Di Fingleton and Justice (former) Angelo Vasta both of the state of Queensland there is the celebrated case of Federal Court Judge and Human rights activist Justice Marcus Einfeld and others like the late NSW Supreme Court Justice Shaw).

The majority of these  cases of judicial misconduct were settled when the judges concerned typically resigned rather than have to face the prospect of an ignominious trial by media and government exposing their misconduct with the exceptions of those named above or were jailed as happened to Di Fingleton former Chief Magistrate of Queensland .

The Di Fingleton matter is so radically different from any other and can draw no comparison or analogy to the Salleh Abbas matter. It is perhaps an example of where the judiciary in their arrogance can be so fundamentally wrong and ignorant of the most basic principles of law and the doctrine of the separation of powers, that they end up shooting themselves in the foot in the brutal unfettered exercise or of their near absolute powers.

In the Queensland case of Di Fingleton her sacking and subsequent jailing by her peers at the state level, before that shameful and erroneous decision was overturned by the High Court of Australia, was an act of arrogance and ignorance carried out at the expense of the principles of justice.

And from the ranks of Australia’s hallowed legal profession is selected a representative to the Panel to judge not the merits of the events of 1988 but to hang Dr. Mahathir instead.

THE EVENTS OF 1988 AND THE BERTHELSEN AFFAIR  

It is said that the Berthelsen affair was a catalyst in the whole affair which culminated in the sacking of the judges including Tun Salleh Abbas in 1988. Berthelsen, a foreigner on a work visa in Malaysia had his visa revoked and was asked to leave the country.

It is further alleged (a matter unfortunately up held by the court of appeal then) that Berthelsen was denied natural justice in that he was not afforded the opportunity to be heard in appealing the decision of the Director General of Immigration.

It is well settled principle of law that the physical presence of a defendant before a court in any jurisdiction including Malaysia is not a necessary pre requisite for that party to be heard or afforded justice. This is particularly so in matters concerning immigration law where the applicant/ appellant may be abroad (offshore) at time of the hearing.

Of paramount importance when weighing up the right of a defendant to be physically present at a hearing against the dangers of their presence onshore in the circumstances for whatever reason, is the opinion of the Director General of Immigration. This was the case in the Berthelsen affair which gave rise to the controversial finding of the court of appeal in Malaysia. There is no reference to this point or whether the court of appeal even dealt with such a point in considering the matter in arriving at its judgement.

There was no right to Berthelsen to remain in Malaysia. The grant of a visa to a foreigner (a non citizen) is a privilege granted at the discretion of the host nation, not an absolute right of the non citizen as Berthelsen was at the time.

The denial or revocation of his visa was a discretion at the hands of the Director General of Immigration who as was his right, exercised that discretion properly. And contrary to what the Court of Appeal by implication, decided in that matter, it was not the right of Berthelsen a non citizen in the circumstances to be present in Malaysia (onshore) to be heard in his appeal against the decision of the Director General of Immigration.

To illustrate the point,  Australia has excised many of its outlying territorial  islands in an effort to deny refugees landing on these islands the right to appeal ‘onshore’ and from these islands to then  establish their rights to remain in Australian as political refugees even though Australia is a signatory to the International Convention on Human Rights and the Refugee Convention.

Regardless of the hue and cry raised by every human rights group and the legal fraternity worldwide at the time, the High Court of Australia in its wisdom upheld the decision and the right of the Minister for Immigration to exercise the powers he possessed to do what he did in this regard. The islands have remained excised for refugee immigration purposes.

That matter was decided in the ministers favour inspite of Australia being a signatory to the International Convention on Human Rights and the Refugee Convention. The fact remains that unpopular decisions can be and often are not illegal or unlawful.

It appears the court of appeal not just erred in its decision but may have also misdirected itself and in doing so may also have been negligent in arriving at its decision thus fuelling the fire of a conspiracy theory which Dr. Mahathir then may have acted upon. Therein perhaps lay the mischief in a poor judicial decision.

JUDICIAL MISCONDUCT AND JUDICIAL MISBEHAVIOUR

Having considered the Berthlesen matter and the decision of the appeals court, one wonders whether or not it is necessary to labour the point that the other case of United Engineers could well have suffered the same fate of judicial incompetence in the hands of an anti Mahathir coalition of judges. And if that were the case, would it have constituted judicial misconduct or judicial misbehavior?

Professor Sallman in his paper on this subject refers to a number of cases of judicial misconduct, judicial misbehaviour on and off the bench which would be worth a read by the Malaysian Bar. The fact of removal of judicial officers and the legality or morality of the issue depends much on a number of factors including the legal and social environment in which they operate. Nothing happens in a vacuum.

Tun Salleh Abbas chose to make an issue out of the events of 1988 and to demonstrate his abject lack of understanding of the process by not resisting the Malaysian Bar’s conduct in empanelling the so called Eminent Persons Panel. It was a self serving Panel appointed to prepare a report he Tun Salleh Abbas so desperately saw necessary to vilify the former prime minster which act has served to reinforce the former chief justices apparent ignorance of how the system operates. The matter appears to have been purely personal.

This sorry saga in the history of the legal profession in Malaysia as represented by the Malaysian Bar or elements within it is an indictment on the profession. An indictment on its poor understanding of the law reflected in its unrelenting efforts to embed itself in the politics of destabilization of a country whose rank and file workers have achieved so much in such a short time under the leadership of Dr. Mahathir and his government however controversial and unpopular he may have appeared to some.

Gopal Raj Kumar

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Comments
11 Responses to “JUDICIAL CRISIS 1988- A TRAGEDY STAGED BY THE BAR”
  1. Are You Gonna Go My Way says:

    The bar council do understand the legality of the episode but choose to ignore it because the temptation is hard to resist..thier action and their mind are clouded with political preferences and their own brand of justice which derived from such movement as human rights, western democratic, western freedom etc. The right to appoint or sack any judge does not rest on the bar. There are legal procedure for that and Tun had fulfilled that requirement in accordance with the law of the land.

    We cannot accused that the leader of a communist or Islamic country of doing injustice if he takes legal action in accordance with the communist law or Islamic law although that law might contradict the western legal system. Thus, the bar council should only look at it within the ambit our Malaysian law and not within their wishes of what the law should be. I was practicing during that episode and Zaid Ibrahim supported Tun until he changed his political stance few years back and it is now proven that its not the law that they uphold but their political preferences.

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  2. ICE says:

    Law. What Law? Justice. What Justice? When the Appeals court can say the High Court judge erred and indirectly call him a fool, a Federal court rule to say the Appeal Court judge erred and indirectly call him stupid and when the Federal court erred there is nobody up there to say these Federal court judges are bloody fools….and we still call these doing JUSTICE, i would rather say JUST ICE, it melts under pressure and temptation…..

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  3. IT.Scheiss says:

    I’m no lawyer and what I’m interested to know is whether or not the sacking of Tun Salleh Abass and his colleagues in any way had permanently changed the relationship between the executive, judiciary and legislature before and after the sacking.

    Right now, I have only heard the casual coffee shop and bar talk mostly from people who are politically opposed to Mahathir and UMNO and over the years, I have become pretty wary of blindly accepting such casual talk as the the truth.

    Detractors claim that it “ended the independence of the judiciary by making the judiciary answerable or subordinate to the executive” – how true is this?

    Also, who or what was the judiciary answerable or sub-ordinate to before the sacking and after?

    Detractors has used the allegation that the Anwar’s first jail sentences for abuse of power and sex outside the order of nature (sodomy) was due to the judiciary being sub-ordinate to the executive (Mahathir) which allegedly dictated the court’s finding of him to be guilty; and subsequently to his second conviction for sodomy being due to the judiciary being sub-ordinate to the executive (this time Najib).

    I have read that the late Lee Kuan Yew, as well as foreign intelligence agencies, including Australia’s believe that Anwar was a victim of a honey trap involving Saiful and if this is indeed true, I feel that Anwar was an idiot to have fallen for a honey trap, since immoral as it may be, he had committed a crime on Malaysian soil and under Malaysian law, whether it be archaic or otherwise.

    This also leads to the question as to whether said piece of legislation related to “sexual intercourse against the order of nature” was applied selectively in Anwar’s case,since even a man who has anal intercourse with his wife or a woman or man who sucks the penis of another man, would have committed an offense under this same piece of legislation and subject to similar penalties.

    By this piece of legislation – i.e. “sexual intercourse against the order of nature”, homosexuality by itself is not illegal in Malaysia, until the said sexual act is committed. Also, by that lesbian lovers are off the hook, since they do not have any organ which can be inserted into a vagina, anus or mouth.

    Once again, that is just my laymen’s understanding of the law and welcome your professional opinion on this and other questions I have raised here.

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    • grkumar says:

      The sacking of Tun Salleh Abbas was the result of Tun Salleh getting himself involved in the politics of the other two arms of government, the legislature and the executive. The fact he had views that were at variance with government and that he had made it known to others in not too subtle ways whilst on the bench and not in the way judges would usually be allowed to express these views form time to time put him fairly in the cross hairs of the executive.

      To answer your question more directly, there is nothing that prevents the executive or the legislature from removing a judge from office. Sacking them directly is but one of these. Judges no longer hold tenure for life on good behaviour. The fact is that tenure is limited. Tenure being the critical element of that limitation, there is nothing stopping government from extending it either.

      In Australia, they make the position vacant thereby relieving the judge from his position. A less messy way f getting rid of a judge without breaching the rules. In other established cases they place pressure on the judge so that his senses will prevail and he will resign or bring disrepute to the office he holds. Regardless of how a judge feels he is treated in the circumstances, when the executive or the legislature express their loss of confidence in him he is required to put his personal feelings and views on the subject of contention aside and resign his position. Salleh Abbas decided to confront the government and conduct a back door defence. He fell for the trap Dr. Mahathir set for him.

      The judiciary, the legislature and the executive are said to be independent of each other. Thats a theory more often than not observed in its breach than for its observance. It has its origins in the separation of powers doctrine, a creature of American jurisprudence which originated in the UK.

      The judiciary is called in the Kings name, appointed by the executive and legislature in the Kings name and terminated in the Kings name. How is that independence then? The king and parliament can install a judge as it can remove him (for grievous misconduct or bad behaviour). But what law defines misconduct (At least removable misconduct?). Judicial misbehaviour is an amorphous and unclear sin with little definition in truth.

      The fact there are laws that compel judges from imposing mandatory sentences removes a judges most powerful tool which is his discretionary powers. Thats something the legislature has the power to impose on judges. So where is a judges independence from the legislature then?

      Mandatory sentencing long ago removed a judges ability to look at the circumstances surrounding a case and a criminal’s behaviour and apply his discretion as to how to sentence the offender. After the legislature passed laws imposing and enforcing mandatory sentences for judges to apply they lost a critical plank in their independence. If nowhere else therein lay the breach of judicial independence in its most egregious form.

      The Malaysian Bar and Judiciary failed to see that point and from thereon paved the way for more interference by a powerful executive and legislature on their powers.

      Crying wolf once too often when they don’t even know what the wolf looks like makes arguments by the judiciary, lawyers and ex judges turned lawyers into a farce and an embarrassment for us all.

      As for homosexuality it is the act of homosexual sex (between males only) that makes it wrong. I appreciate your analysis of that point. As for Lesbians they are not off the hook because Lesbians practice digital penetration as well as the use of tools on each other to derive sexual gratification. Once that occur it is unnatural by definition and falls within the ambit of the law and the legal definitions that constitute the offence.

      In Anwar’s case it is odd that the courts (and prosecution) did not see it fit to also charge Anwar with rape which if Saiful’s complaint was to be believed, constituted the offence of sexual intercourse without Saiful’s consent. That by any definition is rape.

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      • IT.Scheiss says:

        Thanks for your explanation and I agree that judges are not exactly independent of the executive, legislature or monarch.

        However, what I more particularly would like to know is whether it is true that the executive in Malaysia can now dictate to a judge on how he will rule on a particular case, such as that the judge must find the defendant either guilty or innocent, since this is what the coffee shop and bar ‘politicians’ I have the misfortune to be surrounded with say, as well as what the opposition alleges, with respect to the judgement handed down on Anwar.

        At least in cases which have mandatory sentences, the judge must first have to rule that the defendant is guilty before he passes the mandatory sentence on the defendant if he or she finds the defendant guilty, so in such cases, the judge still has the independence to rule on innocence or guilt of the defendant.

        My question is whether the judge can be instructed to hand down a particular verdict by the executive.

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      • grkumar says:

        Judges can’t be ordered or told by anyone how to decided the outcome of a matter if thats what you are suggesting. Neither can anyone tell them how to rule on a particular matter unless such a ruling is part of legislation. There may have been instances where such orders may have come from the executive which the evidence appears to be anecdotal than real.

        No one told the courts how to decide the Anwar matter. Thats gossip and ignorant gossip. If that were the case no one has put up any real evidence other than unsubstantiated gossip to support such a contention to date. If it dd happen then Anwar certainly played his role of walking into that trap by his and his lawyer’s conduct.

        In sodomy 2 for instance, Anwar gave notice of bringing in 13 alibis to rebut the evidence Saiful gave that he was in a particular building at a particular time. It was something Anwar denied and gave notice of rebuttal by evidence of 13 witnesses.
        None of them showed up, none of then gave evidence to that extent Anwar claimed they would.

        From this the court was entitled to draw a negative inference on the subject. At Australian law that negative inference in civil matters at least is referred to as the Jones vs Dunkel inference.

        In Anwar’s case although many so called “independent” observers like the ICJ (International Commission of Jurists- a CIA funded body which deliberately uses an acronym of the International Court of Justice which it is not) and other so called NGO’s claimed the trial was ‘fixed’ and that Anwar was ‘innocent’- backed out and said nothing of that particular judgment or trial. The problem here is that none of these NGO’s to date have produced evidence of wrong doing in any of the many far fetched claims they have made against government, the judges and all the other scandalous allegations they have made to date. If they produced any evidence of the the allegations they have made sufficient to take it to an impeachment process, many like me and thousands of others would have joined in the process and they would have secured convictions.

        A few years earlier when Anwar was ‘acquitted’ on the same sodomy charge -later appealed by the prosecution- Anwar went on Al Jazeera and thanked them for supporting him all along. The reporter live on Al Jazeera corrected Anwar and told him they had not supported him and had remained neutral. Anwar and his team remain a source of false information or exaggerated information and lie at the heart of these rumours of Judges being suborned to the government or the prime minister.

        Sir Ram Gopal and Tommy Thomas are two particularly ignorant and weak proponents of this theory.

        Finally I beg to differ with your approach to the penultimate point in your note. Removing a judges independence or discretion is vital to the argument of the idea of judicial independence which in any even does exist at least to the extent they are human and have political, social, moral and ethical views which will always in some way or the other colour their views and perhaps even direct the way they perceive something. But that can be corrected by their training and maturity. Not where it is legislated. You can appeal a decision of a judge based on his misapplication of the evidence and the law. But you can’t appeal to have the sentence reduced or set aside save in instances of a royal pardon where the sentence is mandatory.

        It is not a question of whether in some cases they have some independence whilst in others they do not.

        There is no such thing as a half pregnancy if you understand what I mean.

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      • IT.Scheiss says:

        Thanks Gopal,

        I agree that much of the coffee shop and bar rhetoric about the judges’ rulings being dictated by the executive is not based upon hard evidence but rather suppositions or personal political biases.

        It’s like the notion being spread around and believed by quite a number of people that Najib was behind Altantuya’s murder but upon reading Sirul Azhar’s cautioned statement as published on The Asia Sentinel, Bala’s firstand second statutory declarations, Raja Petra Kamaruddin’s statutory declaration in which he urges the police to investigate what he was told supposedly by someone from Malaysian Military Intelligence, RPK’s subsequent media statement where he said that he actually did not think that Rosmah could have been at the murder scene and after watching that Al Jazeera 101 East report where they interviewed a supposed distant relation of Sirul with who he was stating but supposedly dis not know that had been convicted of Altantuya’s murder and was on death row, I could find nothing there which pointed towards Najib’s or Rosmah’s culpability.

        Sirul Azhar’s cautioned statement shows that there was an unnamed somebody who had engaged Sirul’s superior officer Azilah to do a moonlight job of stopping Altantuya bothering him or her for a fee, and Azilah got Sirul involved in the job.

        To me, that somebody looks most likely to be Razak Baginda, who was charged with abetment to murder but subsequently freed.

        Bala’s first SD mentions seeing Altantuya outside Razak Baginda’s home, demanding to see him and that Razak Baginda had told him (Bala) that Najib had introduced Altantuya to him and told him to “take care of her”, whilst Najib had stated that he had never met Altantuya.

        Assuming that Najib had lied, what crime had he committed, since he had not lied in a sworn statement in court and had he lied under oath on the Quran, that would also not be a crime under the penal code but rather a matter between Najib and Allah.

        Bala also said that Razak Baginda had shown him and SMS from Najib telling him not to worry as he (Najib) would be seeing the IGP and will “take care of it” but that did not happen and Razak Baginda was charged and had to go through the trial process.

        The only crime Najib could have committed here was to use his influence and position to interfere in police investigations, much like Anwar tried to do over police investigation into his alleged sodomy 1, for which Anwar was jailed for abuse of power.

        I cannot remember the source, though it could have been in Bala’s SD or subsequent reports that Razak Baginda was quite shocked that Sirul had murdered Altantuya.

        To me, this suggests that Razak Baginda had not instructed Azilah and Sirul to kill Altantuya but just to stop her bothering him, and that decision to kill her was Azilah’s and/or Sirul’s own way to stop Altantuya bothering Razak.

        Whilst I do not have information on the judges ruling which acquitted Razak Baginda, I can only guess that the court found that Razak Baginda had not instructed the two police men to kill Altantuya, so he was not guilty of abettment in her murder so was released.

        Raja Petra Kamaruddin’s statutory declaration introduces an element of doubt, where he said that he was told by his “reliable” source that it was an explosives specialist from the military, not Sirul which placed the C4 charges on Altantuya’s body whilst Rosmah and the specialists’ wife looked on.

        Whilst I am no lawyer, I am sure that if ever Najib or Rosmah are brought to trial, this inconsistency in evidence in RPK’s SD and Sirul’s cautioned statement would be grounds for doubt over Sirul’s culpability in blowing up Altantuya’s corpse.

        In Al Jazeera’s 101 East feature, Sirul’s darkened out distant relative, who spoke with a Australian accent, said that Sirul had told him that it was Razak Baginda who had shot Altantuya and he (Sirul) blew up her corpes.

        The relative said he asked Sirul why he did not just walk away and Sirul said that he was scared that he would have been killed if he refused.

        That itself throws another doubt into the soup.

        However, no where is Najib fingered by name in all the above.

        Moreover, in a You Tube video of Sirul in the Villawood Detention Centre, Sirul declared that Najib was not involved.

        What prompted my to do a more serious investigation into the Altantuya issue was a friend, who most probably is a DAP supporter who accused me over teh tarik of “not caring about Altantuya just because she is a Mongolian”, when all I said was that I really did not know the details related to Altantuya’s murder. So I decided to find out as best I can from available online sources.

        Quite frankly, I don’t think many of the opposition politicians, opposition supporters and pro-opposition NGOs also care about Altantuya. What they really want to see is Najib swinging from the end of a gallows rope.

        It was when I saw a documentary of Canny Ong’s murder by a lesser Najib, that it dawned on me how like Canny Ong, Altantuya would just have soon been forgotten by Malaysians had she been raped and raped and murdered by some ordinary person.

        Also in the case of any wrong doing related to 1MDB, neither the Swiss, Singapore of US DoJ have accused Najib by name, even though some other heads have rolled.

        Whilst the receipt of RM2.6 billion into Najib’s personal account will no doubt raise eyebrows, so far there is no evidence that a crime has been committed by Najib who claims that it was a donation from Saudi Arabia

        I have read somewhere, if I recall right in RPK’s blog, that 1MDB and the RM2.6 billion donation are two separate matters, which the opposition and those against Najib have conflated into one.

        Now with US state courts opposing civil forfeiture, plus plenty of public opposition to it, how will the civil forfeiture case against Jho Lo, Red Granite, etc stand a chance, especially if it is suspended or repealed.

        http://www.mcall.com/news/nationworld/pennsylvania/mc-pa-asset-seizure-0526-20170526-story.html

        I participate in two WhatsApp groups and from the nonsense posted or forwarded on these groups, it appears that social media is indeed making people lazy to find out more before forwarding and how social media has made people more ignorant.

        Like a month or some back, someone forwarded a post advising people to be careful because the Ministry of Interior was monitoring WhatsApp and other social media and would take action against people who posted stuff they did not like.

        That rang a bell in my head, since Malaysia does not have a “Ministry of the Interior” but a Ministry of Home Affairs and a Ministry of Communications and Multimedia which are responsible for communications and content, so I did a Google search and found that the Ministry of the Interior of the Republic of Ghana had denied the allegation.

        http://www.vanguardngr.com/2017/04/lai-mohammed-denies-reports-monitoring-calls-social-media-posts/

        So this rumour which began circulating in Ghana found its way to Malaysia and was forwarded uncritically by ignorant Malaysians who were too lazy to investigate it further or were incapable of doing that but swallowed it hook line and sinker, believing that it referred to Malaysia.

        The problem though is that since politics is a game of perception, the truth is not important as long as the right perception is created and nurtured to serve certain parties’ agendas.

        Like

      • grkumar says:

        A fraud on Dr. Bowling is an article we wrote uncovering the style of propaganda of lies these so called NGO’s perpetuate against a government who won’t kow tow to the US in the region.

        As to the rest of it, it is nothing more nothing less than a trail of lies manufactured by prominent members of the Malaysian Bar backed and financed by those who financed and supported Anwar Ibrahim’s failed putsch against the Barisan government in 1998.

        The claims against the prime minister and his wife were largely the work of a group of lawyers which includes Sivarasah Rasiah, Amrick Singh Sidhu and Manjeet Singh Dhillon to name a few.

        We (through an independent reporter) recorded an interview with Balasubramaniam after going through two youtube recordings of a press conference (2) in which Amrick Singgh Sidhu, Manjeet Singh Dhillon and Sivarasah Rasiah all implicate themselves in the so called Balasubramaniam affidavit. They don’t seem to realise it.

        Bala made admissions that Amrick and Sivarasah ‘assisted’ in the drafting of the affidavit (although in our view very poorly drafted affidavits) which used language that was not part of Bala’s vocabulary.

        Sirul admitted to killing Altantuya. There is no question he killed her and assisted in disposing of her body.

        Sirul’s attempts at using the “devil made me do it defence” is unacceptable and not a valid defence at law.

        There is no evidence (as you correctly observe) that Razak Baginda was behind the murder either. What baffles me though is how these clowns have spun stories surrounding the womans death.

        She was not pregnant and in Sirul’s own words (in a jurisdiction where he has nothing to fear in Australia) that Altantuya was already dead by the time her body was transported to Shah Alam to be destroyed. She did not plead or was she pregnant by the forensic evidence and Sirul’s own evidence.

        None of these people who made these claims will get away. Each will be pursued after the next general elections or before it.

        In desperation they are feeding the Hillary Clinton Soros backed Open Societies Foundation with more bile and vitriol o attack government and the PM.

        Adding to all of this is the incredulous Raja Petra statutory declarations which have no value because they are baseless and the man himself contrite for his lies.

        The Malaysian Bar and the opposition in general swallowed whatever the Raja had to say lock stock and barrel. It now tastes like a very bitter pill indeed especially where their credibility as an opposition is concerned. But they won’t give up. (the monkey with its hands in the coconut).

        The Mongolian government did a quiet investigation and had a little co operation from the Australian High Commission in KL. nothing much came out of what was known to be a fictitious tale of murder and mayhem.

        From what we are able to decipher out of all of this is that Altantuya was murdered in an extortion gone wrong by these two policemen.

        Like

      • IT.Scheiss says:

        The presence of Sivarasa in this video of Bala swearing on the Bhagadvagita is telling.

        Also, Suaram’s Ops Scorpene appears to have fallen flat.

        What these idiots don’t seem to realise is that when they raise expectations amongst opposition supporters that Najib will “soon be indicted” or accused and nothing happens, they are in fact discrediting themselves and people will begin to not take them seriously.

        These people, whatever political brand they claim to be (whether capitalist, liberal, socialist, neo-liberal, anarchist, human rights or whatever) have just one objective – i.e. to oust BN.

        I’m not pro-BN as such and never was. I regard myself as one of the rather amorphous Third Force as I really cannot see what the opposition is offering if they get elected, which is any different from the BN in terms of what they will do for the benefit of the people in terms of better and more affordable, higher quality public healthcare, a good, quality public education system, social security and old aged pensions for all (and not just retired civil servants), a better and more efficient public transport system.

        Pakatan has been ruling Selangor for nine years now and I see no real significant changes compared to the former BN state government.

        In fact, we have seen a rise in dengue cases, have had to endure water rationing, the roads are as congested as ever, high rise buildings are sprouting all over Petaling Jaya and the Pakatan state government is doing nothing to curb such development and I wonder what the traffic on the access roads wil be like during peak hours.

        They just want power for themselves and use us (or more accurately dupe us) to get them into power.

        Like

      • grkumar says:

        What you observe about the Pakatan in Selangor is noted and has been commented on but is highly relevant. What policies (alternative policies) does the Pakatan bring to the table? Nothing!

        Like

    • IT.Scheiss says:

      You can view the full proceedings o fthe forum on Tun Mahathir over here. It’s about two and a half hours long.

      Like

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