In independence we trust

Book on Muslim women no longer banned

THE High Court has been demonstrating their ability to be independent over the past few weeks in striking down several decisions by government institutions. On 22 Dec 2009, the High Court censured the police for wrongfully arresting participants of the Asia Pacific Conference on East Timor II (Apcet II) conference. Barely a week later, it quashed the Home Ministry’s restriction on the use of the word “Allah” by a Catholic publication. And most recently, on 25 Jan, it overturned a Home Ministry ban on a Sisters in Islam book.

Malaysians may have been surprised to witness this display of sustained independence from a judiciary still struggling to establish its impartiality after the persistent executive assaults on it. Surprising or not, we should get used to it and expect nothing less.

The judiciary in these cases was in fact performing the very function it is meant to play in a democracy — being a check and balance against possible government abuses of power.

How it works

If a country’s judiciary were independent, it would actually be as commonplace for the courts to overturn government institutions as it is to affirm them. This happens frequently all over the world.

Shrine to Jean Charles de Menezes, shot seven times
in the head by the London Metropolitan police
(© Caroline Ford | Wiki Commons)Some notable examples:

When the London Metropolitan police shot dead Jean Charles de Menezes in July 2005 in the London Underground after mistaking him for a terrorist suspect, the court convicted the police of health and safety failures. The police were fined £175,000 and also ordered to pay £385,000 in costs.

When a woman in Maryland, US was assaulted and maced by the sheriff’s deputies after they forced their way into her residence, the court convicted them for police brutality. The woman was awarded $261,000 in damages.

When the Australian government revoked an Indian doctor’s work visa in 2007 even though terrorist charges against him were declared “a mistake”, the court overturned the government’s decision.

By no means does the government always lose. A protester in Brighton, UK, who was grabbed by the arm after reacting angrily at police filming him during a demonstration, was denied any compensation. He was also made to pay £20,000 in costs.

These are all examples of how the court arbitrates between the government and the public by applying the law impartially and independently. The courts are not meant to bend the law to assist individuals. Nor should judges act like government servants and pander to the executive’s wishes. By performing an independent and impartial role, the courts are meant to act as a bastion against government abuses of power.

In Malaysia

If the courts do not adjudicate fairly when abuses of power occur, the executive would then be free to act without fear of censure.

The police arrested Apcet II particpants after protestors
broke into the hall and threatened the participants
(pic courtesy of Malaysiakini)

This may explain the police’s unreasonable behaviour when they arrested Apcet II participants in 1996. Members of the Umno Youth-led Barisan Bertindak Rakyat Malaysia had stormed the hall, broken down entrance doors and threatened participants, thereby disrupting the conference. When the conference participants regrouped in the hall, police ordered them to disperse and almost immediately began arresting all those in the vicinity. This was despite lawyer Sivarasa Rasiah, now a Pakatan Rakyat Member of Parliament, requesting for just two minutes to gather their belongings.

In his ruling against the police, High Court Judge Datuk Wan Adnan Muhamad said that although the police had discretion under the law, it had to be applied fairly and not arbitrarily. He said public officers were not allowed to exercise discretion according to their whims without having regard to the circumstances. He also said that in his considered view, it was not Parliament’s intention to give unlimited discretion to officials.

This decision however came 13 years after the suit was filed by the 36 plaintiffs, including The Nut Graph editor Jacqueline Ann Surin, who were arrested. The plaintiffs were awarded RM30,000 in compensation each but no award was made for aggravated or exemplary damages.

Different outcome?

If the police and government institutions knew that arbitrary and abusive use of power would be struck down and sanctioned by the courts, how differently would they behave?

Would the police still use tear gas on the peaceful Bersih protest if they would be held accountable for
violating human rights? (© Mohd Hafiz Noor Sham | Wiki Commons)

If the courts were consistent in holding the police and the government to account, could the following violations of human rights have been avoided?

The nude squat incident in 2005
  Police brutality at a demonstration at KLCC in 2006
The dispersal of peaceful Bersih protesters with tear gas by police in 2007
Police brutality at Bandar Mahkota Cheras in 2008
The arbitrary detentions under the Internal Security Act (ISA) of Teresa Kok, Raja Petra Kamarudin and Sin Chew Daily reporter Tan Hoon Cheng in 2008
Deaths in police custody such as that of A Kugan in 2009

Appeal Courts

The courts must continue to provide check and balance
against abuse of power by the government

For now, the court’s independent decisions are heartening and promises some hope that the judiciary is regaining some measure of impartiality. It however remains to be seen whether this spurt of independence will be continued in the Court of Appeal or Federal Court.

What is for sure is that if the courts allow the government to get away with abuses of power, then the government will surely continue doing so, for isn’t it well known that absolute power corrupts absolutely?

And if the courts do not do their jobs to sanction the government when it oversteps its boundaries, then isn’t the judiciary complicit when abuses occur?

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Ding Jo-Ann wonders why the separation of powers, as a critical component of a democracy, is not taught in schools.

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