DNBN Kuburkan BN : Returning the judiciary to the rakyat

Posted on November 23, 2010


As a young 7-year old child, sitting on the stairs of a double-storey government quarters and listening to legal practitioner-uncles narrate their tales, no doubt embellished, that would put many a Bollywood drama today to shame, of court room battles , my imagination was fired.

Still too immature to fully understand notions of justice, yet childishly grappling with a somewhat unrefined understanding that words, buttressed with raw, unpretentious passion, could inspire men and women to greater things, I saw these uncles, not as men of the law, but as gladiators reminiscing past battles to set right many wrongs.

From then on, there was no doubting what I wanted to do with my life.

Last Saturday, that 7-year old, now a greying 51-year old man, flew into London where, some 22 years before, he had taken tutelage to ready himself for the gladiator’s role he had long dreamed of.

Those 22 years, though, had taught him an important lesson : that in the arena in which the gladiators of the law sought to right the wrongs of the land, one component was indispensable.

The impartial judge.

The judge who could rise above his or her own prejudices, honestly evaluate the evidence, faithfully interpret and apply the law, and, most importantly, in full knowledge that he or she, too, must one day be judged, endeavour to do justice, without fear or favour.

Since the case of the 4 apostates in the Kota Baru High Court in February, 2001, I have become increasingly conscious that our courts lack this vital ingredient.

In July, 2004, representing the women NGOs in the Shamala case, I sat dumbfounded as Justice Faiza ordered that the two children, then aged 2 and 4, be placed in the custody of the Hindu mother and, in the same breath, ordered the mother that as she raised and nurtured those two young lives, she was not to in any way howsoever, expose them to her Hindu faith.

I cannot imagine that there was anyone in court that day who, understanding the full purport of the order, did not envisage that before the same could be drawn up and affixed with the seal of the court, Shamala would leave the jurisdiction of the court, with children in tow, in search of justice and compassion.

She and her children found none in Justice Faiza that morning.

On 12th November, 2010, cross-appeals from both Shamala and her husband from the several decisions by Justice Faiza came before the Federal Court for consideration and determination.

Also before the Federal Court was the matter of the husband’s objection to Shamala’s appeals being heard, he contending that she having committed contempt of the orders of Justice Faiza by her having removed the children from the jurisdiction of the court, thus depriving him his visitation rights, she ought not to be heard on her appeals.

The husband’s argument was that none of Shamala’s appeals ought be heard until she has purged her contempt.

She should not have the ears of their Lordships whilst she was still in contempt of Faiza’s orders by remaining outside of jurisdiction, so the argument would have been.

Malaysiakini reports that by a unanimous decision, the Federal Court allowed the husband’s preliminary objection.

I do not know what arguments were taken to counter the stand of the husband, but I want to ask the five judges of the Federal Court and Justice Faiza this.

Please ask your mothers, your wives and your daughters if they would have done any differently from Shamala if they had been at the receiving end of an order like that of Justice Faiza’s?

If they had been allowed custody of their young children but ordered never to expose them to their respective way of lives, would they have submitted to the full force of such orders?

Or would they, too, like Shamala, have taken flight in search of justice elsewhere?

Malaysiakini reported on 12th November that, in the Federal Court, Chief Justice Zaki said :

“To grant her further opportunity would encourage persons like her to commit contempt against the court, with the hope that the court will give him or her the opportunity to correct it. There is no reason to defer any more time. The law and order of the court is meant to be respected, and complied with, and not to be looked down or disdained”.

The pronouncement of the Federal Court in Shamala’s case has served to confirm what I have felt for some time now : the average citizen can no longer look to the courts for justice.

I am convinced that the judiciary can only be returned to the people as their final bastion when an alternative government, led by a prime minister who is not motivated by hopes of re-election at the next polls, but by the need to put in place vital reforms during his tenure, is installed after the next general election.

I have therefore decided to hang up my robes, cease legal practise, and devote myself to working with the rakyat in the coming months to establish a new government and have installed a reform-minded prime minister after the 13th General Election.