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ATimes: Judicial Reform Hopes Handed Setback
By Anil Netto

29/11/2001 1:01 am Thu

Asia Times
28th November 2001


Judicial reform hopes handed setback

By Anil Netto

PENANG - Two controversial appointments to senior judicial and legal posts in less than three months have dimmed hopes for reforms in Malaysia's legal system that had flickered brightly only a year ago.

The choice of Gani Patail, a leading member of the team that prosecuted jailed ex-deputy premier Anwar Ibrahim, to succeed Attorney-General Ainum Mohd Saaid, 55, has provoked a storm of protests. The attorney-general serves as the chief prosecutor and acts as the government's legal advisor. Ainum, Malaysia's first woman attorney-general, is resigning ostensibly on health grounds mid-way through her two-year term. "I am not well but I am not at liberty to discuss my medical problems," she said. Her resignation takes effect in January.

A report in a foreign daily said that Ainum was forced to resign but Minister in the Prime Minister's Department Rais Yatim dismissed it as "baseless speculation".

News of Gani's appointment on November 19 immediately came under fire from rights groups and opposition parties. "It is an appointment that is not likely to enhance the prestige of our system of justice or encourage public confidence in the fairness of prosecution," said the social reform group Aliran. It pointed out that Gani was alleged to have been involved in a questionable attempt to elicit evidence against Anwar Ibrahim in a way that would prejudice his case. "It is suggested that Abdul Gani had wanted [Anwar's tennis partner] Nallakaruppan to bear false witness against Anwar Ibrahim," said the group. The Federal Court, in overturning contempt proceedings against Anwar's lawyer, Zainur Zakaria, never cleared or exonerated Gani and in fact raised very serious concerns about prosecutorial propriety, pointed out Aliran.

Gani's appointment is the second perceived setback for hopes for reforms. On September 6, Justice Ahmad Fairuz was named the new chief judge of Malaya after the incumbent was appointed the new president of the Court of Appeal. Judges are appointed by the king on the advice of the prime minister after consulting the conference of Rulers.

Former Bar Council chairman Raja Aziz Addruse, writing in the Bar Council's newsletter Insaf, pointed out that a more senior judge whose merit "was beyond question" had been bypassed in the process. "Many will recall Justice Ahmad Fairuz's involvement in the Court of Appeal decisions in the contempt cases of [foreign correspondent] Murray Hiebert [who spent a few weeks in jail] and Zainur Zakaria, the latter of which was recently resoundingly reversed by the Federal Court," he wrote.

It's all a far cry from the mood at the end of last year when Mohamed Dzaiddin Abdullah was appointed chief justice, the country's top judicial post, and Ainum assumed the post of attorney-general. Many felt that for the first time in years the winds of change would gust through the judicial and legal systems.

The crisis in the judiciary can be traced back to 1988, when the then top judge Salleh Abas was dismissed ahead of a politically sensitive case at a time when Prime Minister Mahathir Mohamad was facing a stiff challenge from his then archrival Tengku Razaleigh Hamzah. Five other top judges who tried to come to Salleh's defense were also suspended.

The judiciary never really recovered from that body blow. Last year, four leading international legal and judicial organizations released a damning report on the state of legal administration in Malaysia titled "Justice in Jeopardy: Malaysia 2000". In its conclusion, the report stated succinctly, "Overall, however, our clear impression is that there are well-founded grounds for concern as to the proper administration of justice in Malaysia in cases which are of particular interest, for whatever reason, to the government.

"The central problem appears to lie in the actions of the various branches of an extremely powerful executive, which has not acted with due regard for the other essential elements of a free and democratic society based on the just rule of law." It asserted, "There must be a truly independent judiciary, fully prepared at all times to do justice for all, whether strong or weak, rich or poor, high or low, politically compliant or outspoken."

Not surprisingly, the appointment of Dzaiddin, who some say has a mind of his own, was seen as promising after the uncomfortable controversies surrounding his predecessors. A string of surprising but welcome judicial decisions followed boosting hopes that reforms were under way. In particular, a judicial decision on May 30 of this year to release two prominent opposition activists held under the harsh Internal Security Act (ISA) raised eyebrows.

Another decision in Sabah, which nullified an election result in a seat won by the ruling coalition after claims of phantom voters and improper registration of voters, added to the air of expectation.

But the last two major appointments to the judicial and legal system have been seen as retrogressive.

But all is not lost and all eyes will be riveted on the Federal Court for a looming landmark case: Anwar's final appeal on his corruption conviction for which he was jailed six years. (His second conviction for sodomy landed him another nine years.) Another high-profile case is the January 2002 hearing in the Federal Court of an appeal by five ISA detainees (one of whom has since been released) against the dismissal of their habeas corpus applications.

Analysts will be closely watching these two cases to discern more signs as to the direction the judiciary is taking - in particular to see if hopes for reforms can be rekindled.