Restoring public confidence in the institutions of state

Posted on May 15, 2018

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many-colours-one-dreamIMG-20180512-WA0040“A fish rots from the head down” – used to express the idea that all problems in a company or country can be traced back to its leadership. The buck starts and stops at the top.

Lets say it like it is.

must go

The constitution has put in place many institutions of state to ensure that governance of the nation by the executive, government agencies and the civil service is, at all times, truly in the best interest of the rakyat.

And when that governance is perceived to be failing or, worse, serving to oppress the rakyat, then the citizen must have his recourse to a remedy.

I want to look at three such institutions put in place by the constitution, in two contexts.

The Election Commission, the Attorney General, and the judiciary.

In the context of the recently concluded 14th GE, and the ongoing 1MDB scandal.

These institutions, to be effective in their intended role, must enjoy the fullest public confidence that they will discharge their duties without fear or favour.

What might undermine that public confidence?

For present purposes, I will offer only two.

One, a failure to discharge their duties, either through sheer incompetence or by nefarious design.

Two, the circumstances of their appointment is shrouded in such controversy that whether that appointment is truly in the public interest is widely called into question.

Take the EC chairman, Hashim, as an instance of the first.

On polling day, he apologised that postal ballots to overseas had gone out so late that many, if not most, could not get their marked ballot papers back on time.

Incompetence or by design?

At 5pm, many voters who had queued for hours to vote were told that it was past voting time and that they would not be able to vote. Voters who were present at polling stations were denied a constitutional right.

Incompetence or by design?

After 6pm, he announced that ballot papers that did not bear the official stamp of the EC could still be counted as valid votes cast.

Incompetence or by design?

Consider the AG, Apandi’s, appointment, as an instance of the second.

His predecessor, Gani Patail was removed from office on grounds of health, 3 months before he was due to retire. Yet he is now in private legal practice, running his own firm.

Health issues, or were there other reasons?

Around that time, it was rumoured that charges were being framed by the AG’s chambers against Najib relating to the 1MDB scandal.

Was this the real reason for Gani’s removal?

If so, how did Apandi take office and then clear Najib of suspicion?

The general public have found it hard to believe Najib’s explanation that the RM2.6 billion that went into his bank account was a gift from a Saudi prince.

Apandi, though, without offering a shred of evidence, will have us believe this is true.

Fullest public confidence in the Attorney General?

Let me turn now to the judiciary, the institution that is closest to my heart.

In a post here on 23rd November, 2010, to explain why I was leaving legal practise, I described my notion of the ‘impartial judge’, indispensable in a system of judicial administration that enjoyed the fullest public confidence as follows : “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”.

Judges of the superior courts, that is, the High Courts right up to the Federal Court, take oath to “bear true faith and allegiance to Malaysia, and will preserve, protect and defend the Constitution”.

We, the rakyat, are entitled to hold them to this oath and, when the public perception is otherwise, this severely erodes confidence on the part of the general public that the courts are here to serve the ends of justice, without fear or favour, and to preserve, protect and defend our constitution.

In that post mentioned above, I stated my reasons as to why I had come to lose confidence in the system of administration of justice, and said as follows :

“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.”

In January, this year, in the Indira Gandhi case, the Federal Court made an important pronouncement of the law in relation to the effect of ouster clauses on the jurisdiction of the courts. This was in relation to the effect of Article 121(1A), introduced by an Act of Parliament, the argument being that it ousted the jurisdiction of the superior courts with matters regarding thereto.

Justice Zainun Ali, delivering the unanimous judgment of the court, said this : “…the amendment inserting clause (1A) in Article 121 does not oust the jurisdiction of the civil courts nor does it confer judicial power on the shariah courts. More importantly, Parliament does not have the power to make any constitutional amendment to give such an effect; it would be invalid, if not downright repugnant, to the notion of judicial power inherent in the basic structure of the constitution.”

The words in bold and red, in my view, are all-important.

Parliament does not have the power to make any constitutional amendment to give such an effect

So said the Federal Court in January, 2018.

Go to the matter of the redelineation carried out by the Election Commission that was rushed through parliament before the 14th GE.

The Selangor state government sought to challenge the exercise.

The Court of Appeal dismissed the challenge, on the grounds that the EC’s redelineation exercise could not be challenged by way of judicial review. The matter then was taken up to the Federal Court. The Federal Court upheld the decision of the Court of Appeal, that the redelineation exercise in parliamentary and state constituencies was not amenable to judicial review.

In the Indira Gandhi case, the Federal Court flexed its muscles in the face of an argument that an ouster clause precluded the jurisdiction of the court.

In the Selangor redelineation case, there was no issue of an ouster clause.

Here was a case that put before the court a case of wholesale gerrymandering, in violation of the spirit and intent of the constitution that the EC should strive to achieve approximate equality between constituencies.

The Federal Court ruled that this was not amenable to judicial review.

Preserve, protect and defend the Constitution?

No?

Why?

Incompetence or by design?

1MDB.

Najib sued Tony Pua in defamation. It related to Tony making allegations with regard to Najib and the 1MDB scandal. Najib obtained an injunction to restrain Tony from continuing with those allegations pending the trial in the matter. Tony appealed against this injunction to the Court of Appeal.

The 3-man corum of the Court Appeal  took judicial notice of the fact that Najib had been said to have been cleared by the Public Accounts Committee, AG, police, MACC and Bank Negara on the 1MDB scandal.

Without seeing any evidence, the Court of Appeal treated Najib as cleared of this allegations!

What of the investigations in the numerous foreign jurisdictions on the 1MDB scandal? The proceedings commenced by the US Department of Justice where a top Malaysian government official, referred to as MO1, is said to be implicated in the kleptocratic theft of 1MDB funds? That a federal minister, Rahman Dahlan, had confirmed Najib as MO1? That Najib had admitted that RM2.6 billion had been banked into his account?

No judicial notice here?

No?

Why?

Incompetence or by design?

Let us also not overlook the controversy hanging over the re-appointment of the Chief Justice and the President of the Court of Appeal.

Were these done in the interest of the public?

If not, then in whose interest?

Public confidence in the judiciary has never been at its lowest.

We now have a new non-BN government.

Led by a prime minister who, I now believe, 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.

He is working to restore public confidence in the institutions meant to serve the rakyat.

To that end, we have, in the last few days, seen heads roll.

Mr Prime Minister, sir, please treat this as a matter of some urgency.