Suhakam chief Abu Talib Othman - a former attorney-general - has expressed his dissatisfaction over the conduct of judges who were involved in the controversial trials, and subsequent appeals, of former deputy prime minister Anwar Ibrahim.
In a hard-hitting interview with malaysiakini yesterday, Human Rights Commission (Suhakam) chairperson Abu Talib was surprisingly frank and open over the shortcomings of the judiciary in Malaysia.
"As far as the court is concerned, I think it is very important that judges conduct themselves in such a way as to enhance public confidence in the administration of justice. There cannot be two clearly different decisions on a similar case," he said when asked to comment on Anwar’s appeals.
The judiciary has come under scrutiny for dismissing Anwar’s first appeal against corruption charges although in a previous decision the Federal Court had cleared the former deputy premier’s lawyer Zainur Zakaria of contempt of court charges arising from the same case.
Zainur was charged with contempt by High Court judge Augustine Paul in 1998 after he filed an application seeking the removal of prosecutors Abdul Gani Patail and Azhar Mohamad for allegedly ‘pressurising’ a witness to fabricate evidence of sexual misconduct against Anwar.
The Federal Court judges found that Paul had acted "as though he was arguing on behalf of the two prosecutors" and subsequently overturned the high court decision.
In addition, the same matter was raised by Anwar’s lawyers in his second appeal against sodomy in the appellate court which was unanimously dismissed last Friday.
Judges to self-examine
Abu Talib added that the courts should have been transparent in giving reasons for their decisions in matters involving public interest.
"For these judges (in the Anwar Ibrahim appeal case), I think they should examine themselves and be sure that justice is not only done but seen to be done in all cases," he asserted.
The Suhakam chief said during his 14-year stint as attorney-general from 1980 to 1993, judges very rarely did not provide judgments for their decisions.
"For cases of public interest, I had occasion to raise it in a trial. I had told the court straight that it owed a duty to the public to give reasons for its decisions. I had said this when I appeared before the Court of Appeal. The bench was chaired back then by the late Tun Suffian (Hashim) and he agreed.
"In those days, we very seldom had judges not writing judgments and not giving reasons for their decisions. Today, I am sorry to say that it would appear to be the fashion (to do so). So, I think the new chief justice (Ahmad Fairuz Sheikh Abdul Halim) should look into the performance of the judges," he said.
Nevertheless, Abu Talib lamented that successive chief justices have failed to fulfil their promises to improve the judiciary.
"But after they are appointed, things go by as they did before. Now we hear the new CJ (chief justice) also making statements (pledging) to improve the judiciary. We hope it will happen...."
The Suhakam chief, while expressing hope that there should be more open debate on the conduct of the judiciary, was also mindful of "the weapons in the hands of the court such as contempt of court proceedings".
In the past, one major complaint against the judiciary was the liberal use of contempt proceedings, especially against lawyers, over any action considered as tarnishing the image of the judiciary.
Stipulate offences
The Suhakam chairperson also explained the commission’s recent call for the abolition of the Internal Security Act (ISA) in favour of a new security law which clearly stipulates the types of offences which require preventive detention.
"We met with the Deputy Prime Minister (Abdullah Ahmad Badawi) while we were going through the review as well as during the inquiry into the conditions of detention under the ISA. He is very concerned about the allegations...(and) said he would wait for our recommendations.
"We have not heard anything so far," he said.
Speaking from his experience as AG during the controversial arrests of over 100 politicians, activists and religious leaders during the 1987 Operasi Lalang, Abu Talib said the difference between then and now was the role that public prosecutors played in effecting ISA detention orders.
"I have retired some 10 years ago but during my time, the public prosecutor played a leading role in determining whether a person should be detained or not...
"I personally argued for (the detentions). Yes, I recognise that. But we presented the evidence," he said.
The judicial review provision of the ISA was repealed after the Operasi Lalang arrests, to deter detainees from filing applications in court against their arrests. This was the result of a successful habeas corpus application by senior lawyer and opposition member of parliament Karpal Singh.
The new amendments only allowed for the detainees to question the procedural defects in the arrests and not the arrest itself.