Wednesday, May 13, 2009

A Most Courageous Judge - A High Court Judge Succeeded Where The Federal Court Failed

By Matthias Chang
Tuesday, 12 May 2009 09:24

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The pressure on the High Court Judge to do what is “politically correct” must have been intense. There is a culture prevalent among some members of the judiciary that it is better to make “politically correct” decisions so as to secure one’s career than to do justice on the spurious ground that there are appellate courts which should bear the weight and responsibility of such controversial decisions.

It is the passing-the-buck syndrome. These judges would surmise that if they handed down a judgment which is not politically correct and on appeal, the judgment is overruled, it is as good as ending their career – cold storaged till retirement age. Better that the Federal Court (the Apex Court) being the final authority, bear the brunt of the Executive’s wrath as they have the advantage of strength in numbers, as the corum of the Apex Court can be enlarged to nine. There is safety in numbers.

Therefore, credit must be given to the Honourable Justice Datuk Abdul Aziz Abdul Rahim for handing down this historic judgment.

Lawyers are officers of the court and like judges, must likewise be courageous in the discharge of their duties. They must not pander to the whims and fancies of their client, no matter how powerful.

If a case is crystal clear and the client is wrong, it behoves the lawyer to advice the client accordingly so as not to pervert the course of justice.

A courageous lawyer in such circumstances will also lend assistance to a Judge to arrive at a just decision and not succumb to the temptation to do what is deemed “politically correct”.

The observation of the Judge as to the conduct of the State Legal Adviser, Datuk Ahmad Kamal illustrates the above principle. It was reported in the Sun newspaper and I quote:

“On the issue of the affidavit by Perak State Legal Adviser Datuk Ahmad Kamal Md Shahid, Abdul Aziz ruled that he was not a neutral and impartial witness. ‘It was his own admission that he was instructed by the respondent’s counsel to affirm the affidavit. The word instructed is a very strong word. To me, he is not a neutral or impartial witness; his testimony was coloured by the instruction that he received,’ said Abdul Aziz.

“Kamal is the State Legal Adviser and his duty is to advise on all legal matters referred to him, including advising Nizar on the draft proclamation…”

Given the above observations by the said Judge, it seems to me not right for the Counsel for the respondents to “instruct” the State Legal Adviser to affirm an affidavit in the manner in which it was done.

It has been indicated by the Prime Minister that Barisan Nasional would be appealing to the Court of Appeal against the judgment handed down by the High Court.

If, the Prime Minister is sincere in his comments that politicians must be humble and gain the trust of the rakyat, then he must practice what he had preached. And if he has the confidence and trust of the rakyat, he should have no qualms in agreeing to the dissolution of the Perak State Assembly, have a snap election and let the rakyat be the ultimate judge as to which government they want to rule over them in the state of Perak.

If the Prime Minister insist that might is right, he will be the first one-term prime minister in Malaysia. While Badawi has the ignominious distinction of having wrecked the Barisan Nasional, it would be Najib who will be vilified for burying UMNO under the rubbish heap of history.

Members of UMNO, you better ensure that Najib makes the right decision or your “gravy train” will be derailed for good.

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