Rule of law and role of judiciary paramount
Published on: Sunday, December 29, 2019
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The judiciary is the arbiter in disputes. This is basic sociology.
The end does not justify the means if it is against the rule of law. Robin Hood-type antics of robbing the rich to feed the poor will not hold water in a court of law. If a mother steals milk to feed her starving child, she is deemed to have committed a crime of theft. She will be convicted if the case is proven, beyond reasonable doubt, in a court of law
When viewed against this backdrop, the recent report of “Suhakam hailing withdrawal of appeal against Rafizi’s acquittal” is rather disconcerting. What are the values being espoused in this instance?
The Shah Alam High Court on Nov 15 discharged and acquitted two accused from charges under the Banking and Financial Institutions Act (Bafia) after allowing their appeal to set aside the conviction and sentence of 30 months’ jail imposed on them by the Shah Alam Sessions Court in 2018.
As a prelude, this episode had earlier earned the Attorney General (AG) a jibe from a politician relating to the former’s comment on not knowing that an appeal had been filed to the Court of Appeal on this case by his officers. This does not reflect well on the workings of the AG’s Chambers.
A Suhakam (Human Rights Commission of Malaysia) commissioner is quoted as follows: “This is about remedying a past Malaysia that actually utilised the power of the law to silence people or voices of dissent.
“There is a whole horde of bad practices that the new government is supposed to remedy and it is doing it, but in the interim, the AG has the discretionary power to try to remedy this on his level.
“So if the court has decided that it is actually giving respect and dignity to an individual who is doing a good thing, then not appealing would have been the natural choice.”
It appears politics has entered the fray! Interpreting a High Court decision with the use of such terminology – an individual who is doing a “good thing” – sets a dangerous precedent.
Of immense importance here is to comprehend the judgement of the learned judge who overturned the decision of the lower court. In no way did it contain articulations to reflect “giving respect and dignity to an individual who is doing a good thing” as a basis for the decision. The commissioner’s interpretation is hence a most deeply flawed interpretation.
The learned High Court judge in his ruling, in relation to infringements relating to Bafia, said that a specific exhibit and certain attachments were photocopied documents that failed to meet requirements under Section 65(1)(c) of the Evidence Act 1950, and were, therefore, inadmissible.
Witnesses called also could not offer explanations for the locations of the originals to meet the required standard of admissibility as evidence. Whether the Court of Appeal would have had a different ruling is now academic as the AG has withdrawn the appeal filed by his officers on the High Court decision.
What is crystal clear here is that the acquittal was based on a technicality. Stating otherwise is tantamount to second guessing the judiciary and it is mischievous to impute any other motive.
The burning question to the public at large now would be “what does one do to expose corruption and wrongdoing if one has specific information?”
The crucial point that has been glossed over by politicians and civil society groups is the adherence to the rule of law. What would have been the remedy in this case? We conveniently forget that the Whistleblower Protection Act has been enacted.
When one chooses voluntarily to take incriminating information to the media instead of the Malaysian Anti-Corruption Commission (MACC), then one loses any and all protection afforded under the Whistleblower Protection Act. It further undermines and compromises the investigative process.
The then MACC Chief Commissioner, who is now head of the National Centre for Governance, Integrity and Anti-Corruption, can add credence to this given that it occurred under his watch. The MACC was not the first to be in the loop in this case.
The rule of law and the role of the judiciary is paramount in civilised society. Human rights and other civil society groups that issue statements perceived to exalt breaking the law or sidestepping it for a higher cause need to examine the appropriateness of the messages that they are sending out. There should be a vetting process to ensure that opinions expressed do not undermine their credibility and independence.
Walter Sandosam
Former Operations Review
Panel, Malaysian Anti-Corruption
Commission (MACC)
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