That speech from the dock – Zaid Ibrahim

The decision on Datuk Seri Anwar Ibrahim’s case has drawn worldwide publicity and even condemnation in some countries.

In Malaysia, it would have drawn wider coverage and publicity, if not for the demise of a personality more towering than Anwar, Tok Guru Nik Aziz Nik Mat.

What many people did not comment on is the flowery and well-rehearsed statement from Anwar about the judges who convicted him. Did he know in advance that he was going to be convicted? Was his tirade against the judges on the spur of the moment, fueled by pain and fear of many more years of confinement, or was it prepared in advance by a good speechwriter who was preparing for posterity?

He attacked the judges in a flurry of well-chosen words. He described the judges as cowards bowing to the dictates of political masters.

He questioned why they had to take the “dark side” and drown their morals and scruples in a sea of subterfuge and falsehood.

He asked why they did not take the opportunity to redeem the judiciary, to right the wrongs of the past and put the judiciary on a clean slate. He lamented the lost opportunity by the Chief Justice and his brother judges to carve their names in posterity as defenders of justice.

The speech, although short, was crafted to sound like those historic speeches by Nelson Mandela, Mahatma Gandhi or Socrates. Anwar sees himself on the same level as those historic figures, a victim of continuous oppression but also a fighter extraordinaire. He needed to assure the public that he would not give in, hence borrowing Winston Churchill’s immortal words, “I will not surrender”, in the dock.

Here, I think, Anwar has gone too far. It’s one thing to disagree with the findings of the judges, or to criticise their sloppy reasoning, but to accuse them of being complicit and active players in the political scheme to imprison him is without basis and deserves condemnation.

If Anwar and the defence team had ample proof that these judges were planning in cahoots with the political leaders to oust and imprison him, then they should have applied to remove the Judges earlier. These judges could not possibly become traitors to the cause of justice in an instant, because of their decision against Anwar alone.

Our judges are decent and honest characters, and our Chief Justice Tun Arifin Zakaria is a man of the highest integrity and honour.

I believe all the five judges decided to convict because they honestly believed the evidence warranted such a decision.

We can find fault with their finding, but that does not mean they were colluding with the powers-that-be. The public needs to remember these judges were not responsible for deciding to frame charges against a 67-year-old man for consensual sex with another man. They had no say in determining if it was in the public interest to do so. They just had to decide based on what was presented to them.

Was there some kind of soft pressure put to bear on them to decide in a certain way? Perhaps so, and I would not rule out the possibility that such pressure existed, but I believe the judges were not influenced in any way by those political pressure if any.

I even heard suggestions that large sums of money were paid to persuade them to decide in a certain way. If the accusers have some evidence to support such allegations, then at least I can understand Anwar’s attack on the judges, but in their absence the attack was simply because the decision was not to his liking.

It’s true that our judiciary has suffered to some extent from judges lacking in expertise in some areas of the law. Their grasp of the law, especially in complex financial and business transactions, is sometimes wanting.

It’s also true that as humans they have their preferences and prejudices, stemming from their education and the environment they come from (as we all do). Many of them were from the civil service and naturally there is this tendency to view the thinking of the government more favourably.

They tend to allow greater latitude for government discretion and to be more sympathetic towards government decisions and actions. That, however, does not mean that they disobey the law or concoct false principles to justify their actions.

That’s why, when framing the Judicial Appointments Commission law in 2008, I wanted more judges to be appointed from the private practice, as in other Commonwealth countries, but I was not successful.

Those from private practice tend to experience law in its raw form and are therefore able to apply the principles to the cases more correctly. They tend to be more in tune with the practicalities of the law. They will make better judges from these experiences.

However, there are good people from the civil service as well and all we need is the right mix to improve the judiciary.

The danger of making incessant and unjustified attacks on the judiciary, as well as on other institutions of government, is the backlash the opposition will get from the civil servants. The more outlandish the accusations against them, the more severe the repercussions.

They might be ultimately willing to become agents and servants of the politicians. If now, say only 10% of them, are “agents and complicit partners furthering the agendas of the politicians”, reckless attacks on them will just bring more and more to the side of the government.

Even those who are proud to be professional servants of the country and distance themselves from the politicians will not be encouraged to remain neutral after this. The opposition must learn to respect the civil servants, even if they continue to expose the wrongdoings of some of them.

In any event, there have been many times when unpopular causes and cases involving the opposition have been decided by the courts in their favour. In fact, the record of success by the Attorney-General’s Chambers or the government has not been impressive at all.

It’s unfortunate if we decide to paint the judiciary in one broad brush, just because the decision on Anwar does not meet with our expectation. Anwar won on several occasions himself, and if the judges were all “tools of the government”, then there would not have been an acquittal at all.

Let’s work towards a better government and a better judiciary by making constructive and justifiable criticisms for the public good. The country will not be able to achieve good governance if we alienate good civil servants and destroy the trust of the people on public institutions simply because we ourselves are politically motivated. – www.zaid.my,

* Datuk Zaid Ibrahim is a lawyer turned politician and a former minister in the Prime Minister's Department in charge of legal affairs and judicial reform.