Thursday, November 6, 2008

Martin Jalleh on the new Chief Justice

“Imagine having two Umno men at the top of the judicial hierarchy, one as AG and the other as CJ. You will be able to literally get away with murder." - Raja Petra Kamarudin


Of Pretentious Promises, Parachuting Promotions & Pressured Praise

By Martin Jalleh | 5 Nov 2008


The Palace of Justice has a new “prince” – Zaki Tun Azmi. He was promptly sworn in as Chief Justice (CJ) soon after the Conference of Rulers went through the procedural motions and provided consent to his extraordinary elevation.

His Lordship had leap-frogged from the legal profession into the Federal Court last September. Two months later he was proclaimed Court of Appeal (CoA) president. Now (almost a year later) he is proudly perched on the highest post in the judiciary.

Zaki’s political “parachuting” has no precedent. But be not perturbed. Did not the PM promise (especially after his party had quickened his passage into the sunset) that he would produce profound changes in the judiciary?

Indeed, before he packs his bags and participates fully in Umno's early retirement plan for him, Pak Lak would prove to the whole of Bolehland that he still has the penchant to produce the very opposite of what he initially promises.

In April this year, at a Malaysian Bar Council dinner where he paid tribute to former Lord President Salleh Abas and four former Supreme Court judges all of whom were sacked in 1988 by Dr M, Pak Lah had promised the setting up of a Judicial Appointments Commission to help the PM choose judges.

Pak Lah had also very proudly declared then that such a step was to “renew the people’s trust in the judiciary” and to “make the process of nominating, appointing and promoting judges more transparent and representative.”

In his perfect closing the PM pleaded poignantly, pointedly and so passionately: “Let us move on... The rakyat wants movement and progress, not continuing strife... Let us write this proud and new chapter together!”

About five months later, the PM picked and plucked out an Umno lawyer from the Bar, parked and planted him in the Court of Appeal for a while, so as to place him at the pinnacle of the judiciary at the opportune time!

The PM’s preference of the most junior judge in the Federal Court to take the place of the outgoing CJ implied that it was the government’s perception that there were no senior serving Federal Court judges qualified for or worthy of the job.

It also implied that the government had practically no confidence in the judiciary... and ironically in itself! What a proud new chapter! In fact, Pak Lah was writing a whole new book by himself – on how to catapult a lawyer into the CJ’s chair.

The PM who had made plenty of pious pronouncements on collaboration, consultation and commitment towards what he had called a “judicial renaissance”, looked very pleased when his controversial candidate received his papers from the King to be crowned the new CJ.

At the opening of the 21st LawAsia conference in Kuala Lumpur recently, Pak Lah presented Zaki as "a man who likes reforms" – just like the PM himself – who loves to talk and take the rakyat for a ride on reforms?

Predicted


Many had predicted Zaki’s promotion to CJ. When the latter was made CoA president, Lim Kit Siang (who was then the opposition leader in parliament) called the appointment “a prelude” to Zaki becoming “Umno's Chief Justice.”

Activist lawyer Haris Ibrahim (left) who runs the popular The People's Parliament blog had sent two petitions to the King, the latest containing 25,700 signatures urging His Majesty to appoint the seniormost judge of the Federal Court to the position of CJ.

Pakatan Rakyat had also sent a memorandum urging the King to defer the appointment of the CJ and to consider public opinion. Aliran was “shocked that a person who is so junior in rank with nothing outstanding about him should now outrank all the senior, serving judges...”

Can anyone be more accurate than [political blogger and ISA detainee] Raja Petra (left)?:

“Imagine having two Umno men at the top of the judicial hierarchy, one as AG and the other as CJ. You will be able to literally get away with murder (as if they are not already getting away with it).”

Writing before Zaki’s amazing ascent, Kim Quek, a well-known political commentator, had described Zaki as “the person planted to the highest court to succeed Fairuz.” He listed the reasons why Zaki would be “a poor candidate for any judicial appointment.”

Zaki was a key player in Umno. He was chairman of the party’s election committee, deputy chairman of its disciplinary board of appeal, party legal advisor, etc. As Umno’s legal man, he was involved with “the party’s myriad scandalous financial misadventures that were bailed out by the government (of Dr M)."

“Apart from acting as Umno’s nominee, Zaki also has held directorships in scores of major companies. Even if he has the superhuman capability to totally severe his umbilical cord to the ruling party and his commercial interests to eliminate conflict of interests, there is still the insurmountable problem of public perception.”

Kim Quek had also questioned Zaki’s “moral integrity arising from his controversial marriage and divorce from his second wife Nor Hayati Yahaya,” who was half his age and whom he married in a ceremony conducted by a kadi from Thailand in a textile shop in Perlis in March 2005.

“They separated three months later. In the messy divorce that ensued, it was revealed that Zaki burned the original marriage certificate to hide the marriage from his first wife. Further, the marriage was ruled by the Syarah court as illegal.

“Following the revelation of Zaki’s marital troubles, he resigned as deputy chairman of Umno’s disciplinary board, for which he told the press: ‘Considering that members of the disciplinary board are of the highest integrity, I have made this decision following reports in the media...’”

“The question we must ask now is: If Zaki is morally unfit to serve in Umno’s disciplinary board, how could he be considered morally fit to be a federal court judge, not to mention his lightning elevation to the No. 2 position, and anticipated imminent rise to the top job in the judiciary?” Kim Quek quipped.

“Is this country so poor in legal talent and integrity that we have no choice but to appoint someone so glaringly unsuited for such an important judicial position arising from his multiple conflicts of interests and questionable integrity?” Kim Quek quizzled.

(In an attempt to placate the growing protests in parliament against the parachuting of Zaki, Minister in the PM’s Department Nazri Aziz (left) portrayed Zaki as “a straight fellow” and that the “only reason we roped him in was due to his past performance and his character”! Nazri was at his very na├»ve best!)

As it turned out, the PM chose to ignore the very pointed issues and pertinent questions that Kim Quek and the public had posed regarding Zaki’s then imminent ascension to the apex court. There were no consultations with the “primary stakeholders” – in spite of Pak Lah’s promise in April.

Pleasantries


The public pooh-poohed Pak Lah’s preference of Zaki as the new CJ. Lim Kit Siang (left) described it as “the most controversial appointment of the head of the judiciary in the nation’s 51-year history.” Din Merican, an Anwar Ibrahim aide, called it a “retrogressive move” in the PM’s reform agenda.

After the swearing-in ceremony of the new CJ, and hard-pressed by the press, a rather resigned Bar Council president Ambiga Sreenevasan (below, right) extended the pleasantry that “Zaki must be given a chance to prove he can bring about the much-needed change to the judiciary system.”

“There had been concerns in relation to Zaki’s political affiliations and business connections (and) these concerns can only be dispelled by him through the conduct of his duties and by a demonstration of independence and impartiality at all times,” Ambiga added amiably.

Alas, in Bolehland many things function on the reverse. What had in fact to be proven by the Government was whether Zaki was "worthy" or qualified in every way, to occupy the CJ’s chair. And such proof had to be provided – PRIOR to the appointment, and not after.

The search for the "right man" for high office begins with a process of discernment to ascertain, as far as possible, whether he fits the criteria of the job – and this is done prior to making a final decision. Further, the CJ’s Office being a public office, the public has the right to know and critique the proposed candidate.

Ambiga’s implied request, therefore, that the office of the CJ is an "opportunity" for Zaki to prove himself does not make any sense at all. It is like "putting the cart before the donkey (horse)." (But then again very little makes sense in Bolehland these days!)

Pretense

The NST had for its headline on Zaki’s maiden speech at the Palace of Justice: "Zaki shows he means business." Perhaps it would be more accurate if it had been: "Zaki says he means business."

According to The Star, Zaki had “vowed to get tough on errant judges,” whom he said formed a small group and of whom he accused of besmirching the image and reputation of the judiciary.

“Such errant judges should consider leaving the judiciary. I will not hesitate to take tough and drastic action against this small group (of judges) if the occasion calls for it. And for those in the practice of toadying (currying favour), I say ‘stop it’,” Zaki added more zing into his warning.

Ambiga, who attended the ceremony, praised Zaki for having delivered a “hard-hitting” speech (Malaysiakini): “I think it was a no-nonsense and tough speech... He is off to a good start with that speech.”

It was more humdrum than hard-hitting. Zaki’s mundane maiden pronouncements were in fact practically the same as that made by one of his predecessors – Ahmad Fairuz Sheikh Abdul Halim (left), who had said that “judges should resign if they cannot lead a judge's life.”

Sadly, the tenure of Fairuz was “full of sound and fury, signifying nothing.” It ended as a flop, a farce and a fiasco. The verdict of the Royal Commission of Inquiry on the Lingam tape scandal reduced his appointment as CJ to a first-class joke. Will Zaki Tun Azmi meet with the same fate?

Will our nation be “cox-zakied” (coxsackie is a hand, foot and mouth disease) by a tough-talking Chief Justice? Will we see real, rapid and radical changes in the judiciary or will we be regularly reassured by the CJ’s reiterated rhetoric accompanied by a rudderless leadership?

Will the PM stop the Umno warlords from pulling the strings as he plays their puppet, preaching judicial reform but practising the very opposite? Will the judiciary – the very "portal of justice" – continue to be a playground of political expediency where the-powers-that-be persecute their foes by a perversion of the rule of law?

Business executives in Asia make no pretence about their worsening perception of Bolehland’s judiciary – as revealed recently by a Hong-Kong based Political and Economic Risks Consultancy. Local lawyers in a Transparency International Malaysia interview shared the same or even greater corroding perception. Genuine change is crucial.

Time is not on Pak Lah’s side. What kind of legacy will he leave behind in terms of the judiciary? Will he be remembered for his pretentious resolve for judicial reform or will he be respected as a courageous and committed PM who translated into reality his talk given in April this year: Delivering Justice, Renewing Trust (in the Judiciary)?



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