Millions of Judges out there

The Guan Eng and Anwar cases have brought into sharp focus the question as to the role and responsibility of the courts in promoting and protecting human rights in the country.

By Ramdas Tikamdas

The court cases involving Lim Guan Eng and Anwar Ibrahim more than any other have resulted in intense public interest, and caused a serious search for the meaning of law and justice and a reappraisal of the role and responsibility of the courts for setting the jurisprudential foundations of society for human rights.

The court proceedings have taken their own legalistic course meandering through the web of the technical rules of evidence and procedures which have confounded the best lawyers and flabbergasted a large section of the public. But riveted public attention throughout was guaranteed because of the highly combustible combination of sex and politics, which formed the plot for both the cases.

But the real reason why the general public took on the role of the de-facto jury in both these cases - in fact Justice Augustine Paul's remark about " millions of judges out there" should properly read a million jury - is because in their essence both the cases are quite simple and straightforward and, from the public viewpoint, easily judged.(The Star, 6 October 1998)

Take for example, the Lim Guan Eng case. He was first charged with falsely and maliciously publishing pamphlets in the following words: (Lim Guan Eng v Public Prosecutor (1998) 3 MLJ 14.)
"The Tan Sri Rahim Tamby Chik sex scandal. Wither justice and women's rights. Victim imprisoned, criminal free."

But the fifteen old year schoolgirl had not been "imprisoned" but merely "detained" by the police. The statement in the pamphlet was therefore false and held to be malicious.

Second, Lim Guan Eng was held to have uttered the words, "that he was dissatisfied with the fact that the court had ordered the minor to be detained for three years whereas Rahim, who should have been imprisoned for violating the law, was instead set free".

It is important to note that while the accused was held to have published the word "imprisoned" he had uttered in his speech the word "detained".

In any event, this utterance was held by the court to be sedition because it had the tendency "to bring into hatred or contempt or .. excite disaffection against the administration of justice in Malaysia..."

This, in a nutshell was the case against Lim Guan Eng, the Member of Parliament for Kota Melaka. This is the reason he is serving a sentence of imprisonment for 18 months at Kajang Prison and has been disqualified from holding office. The million-strong is left wondering and at a loss about the constitutional oath of office of a Member of Parliament and the right and duty of an elected parliamentarian, and indeed all citizens, to comment on a matter of public concern without fear or favour. The million-member jury will no doubt long ponder over the difference between 'imprisonment' and 'detention', especially since the girl had in open court testified that she had tried to escape from the Rehabilitation Centre but was caught after she had escaped.

The jury is also left to wonder why an elected Member of Parliament is denied the freedom of expression enjoyed by a newspaper columnist Marina Mahathir who in her article captioned Whither Justice published in the Star on 9 November 1994 prior to Guan Eng's pamphlet had stated that:

"There are injustices in the law which are mind-boggling ... a gross mockery of justice ... As a woman, especially a Muslim woman, I am angry, disgusted and ashamed ... As a mother, I now have real fears for my daughter. What protection can we hope for our daughters if, in the interests of politics, a minor can be so easily sacrificed?"

The Anwar case, minus the political and police conspiracy and the mattress, is simpler still. He was alleged by two persons to have committed various acts of sexual misconduct. He allegedly 'requested' or 'instructed' or 'directed' - choose what you will - the Special Branch of the police to get retractions from his accusers of the sordid salacious sexual allegations, which the prosecution initially with much fanfare set out to but did not prove in court.

The prosecution finally amended the charges and rested its case on the proposition that the truth or falsity of the sexual allegations was irrelevant. It merely had to establish that the police did at the direction of Anwar get the retractions of the allegations against him of things he did not, in law, do, for obviously Anwar like any other person is entitled to the presumption of innocence. But this was "corrupt practice" by the Deputy Prime Minister meriting imprisonment for six years, commencing from the date of his conviction. The seven months spent in Sungai Buloh Prison while on remand because bail was denied him, would not count because according to the Judge, "the accused has been here (in court) all the time". (New Straits Times, 15 April 1999)

Anwar in his mitigation in open court referred to this interpretation of corruption as "ludicrous". In the context of mitigation, this must mean that at most the consequence of his "corrupt practice" was saving himself from embarrassment from allegations of sexual misconduct - which were in any event not true and which the prosecution itself had at the outset set out to prove only to abandon after the evidence adduced collapsed under the weight of its own absurdity.

Since after 78 days of trial, the truth or falsity of the sexual allegations has been held to be irrelevant to the charges before the court, the jury begins to wonder how it was that the Deputy Prime Minister and Deputy President of UMNO was summarily removed from office for sexual misconduct with the promise that a fair trial in a court of law would justify the political decision. The million people jury therefore ask, Whither Justice? Just as the article in The Star rightly predicted that the case of the unfortunate 15-year-old from Malacca "will simply not go away", similarly the case of Anwar will also not go away as "people are shocked dismayed and deeply disturbed by how the whole matter was handled". (The Star, 9 November 1994)

The lesson to be drawn from the public outrage to the Lim Guan Eng and Anwar Ibrahim cases is that political issues should be resolved in the political arena and the courts should, as far as possible, be left alone. Dragging the courts into political battles can only diminish the integrity of the judicial process. The judiciary on its part should be ever mindful that whenever the conviction of an elected representative of the people results in disqualification, the court is in effect overturning the decision of the electorate. And where the offence is more of a technical nature rather than a serious case of abuse of power or corruption or moral turpitude, the judiciary's axe ought not to strike to remove an elected representative from the legislature.

The courts serve as the moral conscience of society and society expects the courts to imprison "criminals" who by their misconduct have deserved the scorn and derision of right-thinking members of society. In the case of Lim Guan Eng (even after the completion of the appellate process) and in the case of Anwar Ibrahim to date, it is obvious that the circumstances of their conviction and the judicial grounds of the same have not convinced a large section of the public that they are indeed "criminals".

Instead, the perception of a large section of the public is that they are victims of the gigantic and inscrutable instruments of the state. The public's confidence in the judicial process is thereby undermined and what in fact festers is the sense of injustice captured by Anwar's mitigation in open court that he had been dealt a judgment that "stinks to high heaven".

The Guan Eng and Anwar cases have also brought into sharp focus the question as to the role and responsibility of the courts in promoting and protecting human rights in the country. When faced with illegality, the courts would of their own motion take cognisance of it and do justice according to the case. (Re Mahmoud & Ispahani (1921) ALL ER 217)

What then is the responsibility of the courts in terms of human rights and as constitutional guardian of fundamental liberties when faced with violation of human rights? when faced with a shivering, perspiring accused person? when faced with a direct complaint of police brutality? when faced with a bruised and beaten detainee? when faced with a photograph in the media of a bloodied and beaten remand person in respect of whom the police apply for further remand? when faced with a quick request by the police for a confession session with the police standing guard outside the court chambers ready to escort the prisoner back from where he was brought? when faced with an allegation that the detained person is in a dungeon with a rat hole and without windows in a place unknown? when faced with the confession of a convicted person that he allowed himself to be sodomised and the doctor who examined him testifies that he was not? One can go on and on with such questions unless of course the courts themselves pronounce them as irrelevant.

The question therefore arises should the judiciary not be more pro-active in discharging its constitutional duty as the guardian of fundamental liberties and the rule of law.

Although we do not have the jury, indeed we have "millions of judges out there" judging.

Ramdas Tikamdas is president of the Malaysia Human Rights Society (HAKAM)