Sleep tight, Mr Chief Justice
By: Kim Quek

Following is an article in malaysiakini.com, on Federal Court's judgment on Anwar's appeal against his corruption conviction. It vividly describes the sense of anguish, desperation and even panic among the legal fraternity on the serious adverse implications that such a degraded judgment in our highest court will have on our judicial system as well as on the Nation at large. - Kim Quek.

Sleep tight, Mr Chief Justice

The saddest reaction to the Federal Court’s decision in dismissing Anwar Ibrahim’s appeal did not come from his family members or his supporters. Instead, it came from a judicial officer who shed tears almost non-stop as she expressed her fear for the judiciary’s future.
 
“What’s going to happen to us? The judiciary’s credibility will be further damaged. How are we to work?” she said to a colleague who tried to comfort her.
 
Although her colleague shed no tears, her expression revealed that she was equally upset with the decision delivered by the highest court in the land.
 
“He has put himself in the ranks of Eusoff Chin and Hamid Omar (former Lord Presidents). In less than 20 minutes, he turned from hero to zero,” she said in reference to Chief Justice Mohamed Dzaiddin Abdullah who led the three-man bench to uphold the decision and rulings by Justice S. Augustine Paul on April 14, 1999.
 
It is believed that many senior judicial officers (present and retired — even those at par with Dzaiddin’s seniority) who had utmost respect for the man, had called each other asking what happened and why.
 
I believe their fears are also felt by many others in the legal fraternity and their cause has little to do with the fact that Anwar will continue to languish in the Sungai Buloh prison for the next six to nine years.
 
Binding precedent
 
It has a lot to do with the fact that the decision has now become a binding precedent, an authority which can be used as reference and guidance for Malaysian courts in making their decisions in the future on issues like bail, sentencing, relevancy and admissibility of evidence and credibility of witnesses.
 
Never throughout the eight years of reporting criminal court cases between the magistrate courts and the Federal Court, had I ever encountered such bizarre rulings on criminal procedural laws that go against the practice and direction paved by previous credible custodians of justice.
 
How does it affect us laypeople? Many do not realise that the binding precedent (with the irregular rulings and all) are applicable to any Tom, Dick or Harry who stands in the dock. Who knows what the future has for us and with the present political scenario, nothing is impossible.
 
Remember the jokes and sniggers from academicians, lawyers, government officers and even law students (let’s leave the politicians out of this) as they commented on Paul’s judgment which was different to the book he penned on evidence law years earlier.
 
No way were Paul’s rulings going to survive the Federal Court, they said. But, how wrong they were! I expect they (however naive they may be) are now probably grunting in frustration and shaking their heads in disbelief.
 
I concede I was rather naive myself to actually believe that one brave judge will make things right again, even if it was to be a dissenting decision especially after Dzaiddin was made the new leader of the judiciary in late 2000.
 
Most capable man
 
Then, many prominent personalities including retired Federal Court judges and former Bar Council presidents lauded his appointment, describing him as the most capable man to lead the judiciary.
 
I was further assured after a two-hour interview with the man himself. As I closed the door behind me to Daziddin’s chambers (after the interview which I did with my colleague Claudia Theophilus), I thought I saw a glint of light at the end of the judiciary’s dark tunnel.
 
The tunnel seemed brighter when many positive decisions were made such as the imprisonment of former Inspector-General of Police Rahim Noor, the acquittal of Anwar’s lawyer Zainur Zakaria, the release of  two ISA detainees Gobalakrishnan and Saari Sungib and the election petition decision by retired Justice Muhammad Kamil Awang who also revealed improper judicial interference when he claimed that one of his superiors ordered him in 1999 to dismiss the case.
 
Although Dzaiddin did not make these decisions, many believed that he was responsible for such positive developments. He became the man to watch.
 
After all, wasn’t it Dzaiddin who said that he wanted to restore public confidence in the judiciary? He also promised to ensure that the judiciary would discharge its duties within the confines of the Federal Constitution and declared that judges should be ethical, honest and must uphold the integrity of the judiciary
 
As the Human Rights Watch website reports:“... a number of developments (the cases as stated above) suggested that the appointment in Dec 2000 of respected jurist Dzaiddin Abdullah as chief justice was beginning to have a positive impact.....”.
 
No outside pressures
 
The United Nations special rapporteur on the independence of judges and lawyers Param Cumarasamy once told the WashingtonPost: “The judges now feel they are a little freer. With the new chief justice, the climate is more conducive for them to judge cases on the facts and the law without taking into account outside pressures.”
 
But after Wednesday’s decision, suddenly somebody decided to switch off the power cable for the tunnel and all I could remember was a line from a Malay movie, Ali Setan : “Tipah tertipu bang! Tipah tertipu bang!” ( I have been cheated)
 
Didn’t Lord Halsbury say,“Discretion means, when it is said that something is to be done within the discretion of the authorities, that something is to be done within rules of reasons and justice, and not according to private opinion; according to law and not humour. It is not to be arbitrary, vague and fanciful, but legal and regular."
 
Didn’t Lord Wrenbury say, "A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so.”
 
Live by conscience
 
As retired Court of Appeal judge Shaik Daud Ismail put it, a judge has to live by his conscience adding that he would not be able to sleep at night if he feels that he has meted out injustice on someone.
 
So, did Dzaiddin make those promises for public relations purposes as some had claimed? If he did, then he has done a wonderful job. Well, until now that is.
 
He will have a difficult task ahead to maintain the confidence he has so far gained from the public. If he was and still is sincere, then I’m sure Dzaiddin will have no problem sleeping at night.
 
As Dzaiddin and his two colleagues sleep soundly, I am slowly learning to accept that the decision, like everything else, is God’s will. I hope Anwar is able to do the same.
 
In the meantime, I have to pick up my shattered hopes and pray hard that I can patch the pieces together again.

- Kim Quek - 13.07.2002

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