By: Kim Quek

If some one tells you that Mahathir's shock 'resignation' is linked to the long running Anwar Ibrahim saga, you would probably be surprised and puzzled. Mahathir is at the peak of his power, while Anwar is languishing in jail on consecutive sentences of 15 years. So, why should Mahathir resign because of Anwar?

However, when you put the 2 seemingly unconnected issues together - Mahathir's inexplicable behaviour through his shock 'resignation' and the imminent explosive development of the Anwar trial - and ponder over the chain of events emanating individually there from, you may begin to see the hint of a relationship between the two. Could it be that Mahathir's shock 'resignation' is in fact a strategy to strengthen his hand so that he can put the entire Anwar Ibrahim saga into the dustbin of history through riding rod shod over a judiciary that is still struggling to regain its independence from long years of domination by the Executive? And wouldn't this move (if successful) have ensured the removal of the only potential threat to his career, whether in retirement or otherwise?

To put the pieces together, let us begin with the Anwar trial. Hearing on Anwar's final Appeal to his first conviction (on corruption, 6 years jail) was completed on 2nd April 2002, and the judgment is now overdue from the Federal Court (the highest court).

That Appeal mercilessly exposed the earlier Anwar trial as the most shameful and the most naked transgression of justice in the history of this Country. And the no-nonsense and unrelenting questioning of the prosecution by the judges during the proceedings leaves one with no room for imagination as to the verdict on this Appeal.

In fact, the case is so one-sided that one would have expected the judges to give an instant oral verdict, followed by a written judgment soon after.

Instead, the panel of 3 judges headed by the Chief Justice has not even delivered the judgment to date, in spite of a lapse of 3 months, which is well beyond the time limit of 8 weeks set by the Chief Justice himself when he took office at end 2000 for a 2-year term.

Considering the heavy political intrigue behind this case and the immense political impact the expected verdict may impinge on the ruling clique, in particular the Prime Minister, such an inordinate delay on this legally simplistic case cannot but cause the greatest alarm to the Nation.

Intensifying this alarm is another final Appeal in the same Federal Court, where 5 Reformasi leaders detained under the Internal Security Act (ISA) is making a Habeas Corpus Appeal against the ISA detention on the ground of mala fide by the police.

The hearing of this final Appeal was completed on 28th February 2002, and the judgment is therefore also well overdue, this time by 10 weeks.

Throughout the hearing of this Habeas Corpus Appeal, the prosecution has not produced even an iota of evidence to substantiate the ground on which these Reformasi leaders were detained - that they were mobilizing an armed rebellion with armaments such as bombs, guns, grenade launchers etc. to overthrow the government. On the other hand, the appellants have given ample evidence that the only purpose of the detention was to thwart their legitimate political struggles. Significantly, none of the detainees has been interrogated on their alleged crime - the amassing of weapons to overthrow the government.

The case is so clear-cut that none with a conscience can fail to conclude that ISA has been abused to suppress a legitimate political reform movement by putting its vocal leaders behind bars without trial.

With such a simple legal case, why should the panel of learned judges (headed also by the Chief Justice) find it so difficult to come up with a judgment that the Chief Justice has to break its own rule by not producing a judgment on time?

Looking back over the current Chief Justice' reign, one recalls with joy the series of judgment in the mid 2001 which unprecedentedly went against the wishes of the ruling power but which displayed high judicial integrity and independence. These illustrious judgments have brought hope to the Malaysian public as well as the international community that the newly installed Chief Justice might finally be on course to fulfill his vow to restore respectability and confidence to the tattered Malaysian judiciary.

Alas, the path of judicial reforms is not one of smooth sailing, as evidenced by a series of dubious appointments of notorious legal personalities to key positions in 2001. These are the promotion of Ahmad Fairuz from Appellate Court Judge to Chief Judge of Malaya (now acting President of the Court of Appeal), the appointment of former Attorney General Mohtar Abdullah to Federal Court Judge, and finally towards the end of 200l, the promotion of senior prosecutor Abdul Gani to Attorney General. All these appointees played prominent roles in the infamous trials of Anwar Ibrahim, and were objects of reprimand by the Federal Court in its judgment on 28th June 2001, which quashed an earlier conviction on one of Anwar's lawyers for contempt of court.

The above appointments are obvious set back to Chief Justice' reform agenda and point to the fact that the black hand of the Executive may be gaining the upper hand in the tussle between the righteous and the evil in our justice system. This has been partially manifested in the totally unjustified indefinite delay to the hearing of Anwar's Appeal against the second conviction (on sodomy, 9 years jail). This second conviction took place on 8th August 2000, but almost 2 years later, Anwar has not been able to secure a hearing date for his Appeal, in spite of numerous written requests. The acting Court of Appeal President, i.e. the abovementioned Ahmad Fairuz, has also failed to respond to any request from Anwar's lawyer to discuss the matter.

And now, with the overdue judgment from the Federal Court on the abovementioned 2 final appeals dragging on (one from Anwar and the other from the Reformasi 5), one fears that the clock may be ticking for a showdown between the Executive and the Judiciary. This fear is well founded, as on another day not many years ago, under the reign of the same Prime Minister (Mahathir), the rock foundation of the Malaysian judiciary was shaken to the core and cracked up, in an incident Malaysians will remember as the days of infamy for the Malaysian judiciary.

During those fateful days in 1987, the then Lord President (Salleh Abas) and his fellow judges in the then Supreme Court were sacked for daring to defy the wishes of Prime Minister Mahathir, in another political power play not dissimilar to the current one. On that occasion, Mahathir was facing another political rival (Tengku Razaleigh), and Lord President Salleh Abas was then convening a full tribunal of the Supreme Court to hear a dispute within UMNO, the outcome of which might ultimately decide who the new UMNO leader would be. As the case was not in favour of incumbent Mahathir, the latter directed that the tribunal be postponed. But Salleh refused, resulting in a purge that cleansed the top hierarchy of the Malaysian judiciary of independent minded judges. To this day, the judiciary remains cowed, until the ascendancy of the current Chief Justice, when budding signs of judicial independence re-surfaced.

While it is easy to see that Mahathir was fighting for his life when he took the drastic action to sack the top judges en masse, is he also facing the same threat with respect to Anwar's legal cases? The answer is yes.

Imagine we have a genuinely independent and competent judiciary. Then, it is almost a certainty that Anwar will regain his freedom in a relatively short time, and become active in politics again.

The next question: if a referendum is held among the Malay masses to elect their supreme leader (after Anwar is set free in the near future), who will get the most votes? Probable answer: Anwar.

In view of Mahathir's intention to retire soon, can he retire in peace, if a kicking Anwar is rallying the Opposition to face off UMNO? Is there any one in UMNO who is heavy enough to successfully fight off the challenges from Anwar?

Or alternatively, if Mahathir has no intention to retire soon, is he prepared to face a freed Anwar in the political arena, keeping in mind the age factor as well as the political fatigue factor (as displayed most recently by Mahathir)?

Honest answers to the above questions will point to the necessity to put Anwar away permanently, and that cannot be done if the judiciary is independent and competent. To the dismay of the Executive, the judiciary does exhibit signs of independence and competence.

There is no doubt that a contest of will power has been going on ever since the assumption of office by the Chief Justice, as evidenced from the intermittent and contradictory display of exemplary judgments that defy the Executive, dubious appointments to key judicial positions that undermine judicial reforms and inordinate delays to hearings and judgments on critical political cases such as those involving Anwar and his reformists.

The question is: does Mahathir feel strong enough, that he can make a repeat of the 1987 purge without undue risk to his political future, if the judiciary is adamant to make judgments it considers fair and judicious. The answer is negative, due to vastly changed circumstances, chief among which is Mahathir's vastly dented popularity among the Malays due to his unjust humiliation of Anwar. Hence, the necessity to stage theatricals such as the shock 'resignation' which may bring the multiple benefits of recharging his popularity, strengthening his leverage over a defiant judiciary thereby putting the Anwar issue to rest, and paving the way for a peaceful retirement or alternatively a prolonged political career free of lethal threats. It will of course also bring the added benefit of a stronger hand to carry out reforms that may find resistance from certain Malay nationalists, but essential for the economical survival of the Nation, such as the gradual phasing out of Malay privileges and re-induction of the English language to our national life.

Television viewers who watched Mahathir's shock 'resignation' live should be able to vouch on the immense emotional impact a 'shock therapy' can exert on the human psyche. Human nature is such that when a close one is lost suddenly, the sense of lost is exaggerated, accompanied by a disproportionate amount of grief, such as the outpouring of grief and sorrow that follows a plane crash that one sees in the TV. In that respect, the greater the shock the greater the exaggeration of loss and grief.

The shock element in Mahathir's 'resignation' is complete, as he was the only one in this whole wide world who knew of his impending announcement. Not even his wife or children or his closest political confidant had the slightest inkling that he was going to resign suddenly. Needless to say, under such complete secrecy and in circumstances that least likely to expect his resignation, the 'shock therapy' effect he administered to his followers and the Nation at large is at its optimum. Corollary to that, the exaggeration on the sense of loss and grief at his departure is also at its maximum.

Nothing else can satisfactorily explain his queer behaviour. In fact, his 'explanations' upon return from his oversea holidays only belied the truthfulness of his version.

He claimed he wanted to resign while he was on top, and sudden and immediate resignation was the only way out for him, as otherwise his colleagues might dissuade him from resigning. At his colleagues' request, he initially agreed to postpone his resignation by one month. On the next day, just before he departed for his 10-day holidays in Italy, he had a meeting with his top colleagues and decided to postpone his resignation to after the Organisation of Islamic Conference in October 2003. He then expressed satisfaction at his successor's willingness to wait for another 16 months before taking over the reign of power, as that interim was deemed necessary to provide a smooth transition for the handing over of power to the next leadership

The loopholes to the above story are: One, if 16 months interim is considered necessary for a smooth transition, why resigned immediately in the first place? Two, sudden and immediate resignation without forewarning will certainly create a power vacuum and throw UMNO's top hierarchy into a panic. Such an abdication of power is the height of irresponsibility of any incumbent leader. Is it conceivable that our Dr. Mahathir is such an irresponsible leader? Three, considering that the Anwar trial is reaching a critical stage, is it believable that Mahathir was willing to relinquish power immediately, and be oblivious of the impending threat posed by a revived Anwar?

The question is then asked: Why the interim of 16 months to October 2003? Answer: A certain minimum period is needed to bring Anwar's second trial to the final conclusion, which is the anticipated final appeal at the Federal Court. At this moment, it has not even been heard in the Court of Appeal. The choice of OIC as a marker for Mahathir's future resignation is just a convenient excuse to justify the prolonged power transition. After all, no date has been fixed for the resignation after OIC, and only God knows how far away that date will be.

At this moment, our attention must be focused on the hidden drama in our courts, for therein lies the future destiny of the Nation. A judiciary triumphant over undue interference from the Executive will keep the hope alive of a better future for all of us. On the other hand, a judiciary browbeaten into submission to the will of the Executive may spell disaster to our budding judicial reforms, and condemn this Nation to a prolonged dark age with no silver lining in sight.

- Kim Quek - 06.07.2002

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