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M. Bakri Musa

Seeing Malaysia My Way

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Location: Morgan Hill, California, United States

Malaysian-born Bakri Musa writes frequently on issues affecting his native land. His essays have appeared in the Far Eastern Economic Review, Asiaweek, International Herald Tribune, Education Quarterly, SIngapore's Straits Times, and The New Straits Times. His commentary has aired on National Public Radio's Marketplace. His regular column Seeing It My Way appears in Malaysiakini. Bakri is also a regular contributor to th eSun (Malaysia). He has previously written "The Malay Dilemma Revisited: Race Dynamics in Modern Malaysia" as well as "Malaysia in the Era of Globalization," "An Education System Worthy of Malaysia," "Seeing Malaysia My Way," and "With Love, From Malaysia." Bakri's day job (and frequently night time too!) is as a surgeon in private practice in Silicon Valley, California. He and his wife Karen live on a ranch in Morgan Hill. This website is updated twice a week on Sundays and Wednesdays at 5 PM California time.

Sunday, December 16, 2007

A Legacy the Country Can Do Without

When the Council of Rulers did not even entertain former Chief Justice Ahmad Feiruz’s request for an extension of his tenure, it went beyond royal rebuff. It was a very public and equally royal repudiation of Prime Minister Abdullah’s judgment.

The Council went further. Traditionally it does not even announce details of its meetings, but on October 31st, 2007 the Rulers specifically stated that the item was not even on their agenda. Presumably they went out of their way to declare this fact openly to pre-empt anyone from “spinning” this royal snub into something else.

The immediate consequence was that Feiruz left office unceremoniously the next day, with no end-of-term “photo ops,” elaborate dinners, or the obligatory farewell tours. There was not even a parting interview or any dispensing of words of wisdom. It was the body language of someone drummed out of office rather than a dignified farewell of someone proud of his legacy. It was the image of a guard dog turned renegade, desperate to escape for fear of being shot, with its tail between its legs after it was found snatching one of the lambs it was supposed to protect.

On this point, Ahmad Feiruz had read the situation well; his legacy is not one that the nation should be proud of; neither should he.

Has Prime Minister Abdullah learned anything from this disgraceful saga? Sadly, no! In elevating recently appointed Judge Zaki Azmi to be President of the Court of Appeals, the number two slot and thus potentially in line to be the next Chief Justice, Abdullah has again demonstrated his incompetence as well as inability and unwillingness to learn from his mistakes.

This is the same Zaki Azmi who before his elevation to the bench grabbed headlines with his sordid divorce scandal. Press reports alleged that he might have instructed his bride to destroy their Thai wedding certificate, potentially an act that could be construed as obstruction of justice, a serious charge especially to an officer of the court.

Nonetheless he had the personal integrity then to withdraw himself from UMNO’s Disciplinary Committee investigating “money politics.” Thus we have the specter of a man who earlier felt himself unqualified to be in UMNO Disciplinary Committee being appointed by the party’s leader to be next in line as Chief Justice. The mockery of this appointment is lost on the judge as well as the Prime Minister.

A Shameful Legacy

The legacy of a judge is his written judgments. According to the Bar Council, during the seven years he was on the High Court, Feiruz wrote a meager seven judgments, about one a year! Such productivity! Despite that, he was promoted to the Appeals Court. In the seven years he was on the Federal Court (the highest) he was no better, writing a total of again seven judgments only. This is not a question of quality making up for quantity, rather a legacy lacking in both.

I read his last written judgment on the highly publicized Lina Joy case in which he, as Chief Justice, wrote for the majority. It was enough to discourage me from looking up his other cases. Feiruz obviously had not heard of such basic tenets of democracy as the freedom of beliefs and conscience. To him, one should not be allowed to change one’s religion “on a whim.” He missed the elementary principle that freedom when constrained is not it.

Such a high profile and potential landmark case would have been a splendid and rare opportunity for him to showcase his judicial wisdom, legal scholarship, and grasp of social realities. His authoring the majority report indicated that he did recognize that occasion; alas none of those qualities are reflected in his written judgment. There was a reason – he lacked them!

His non-bench commentaries were equally mediocre. His speech at a recent symposium honoring the late legal luminary Ahmad Ibrahim was inappropriate as well as injudicious, if not downright irresponsible as well. He advocated doing away with the current reliance on English common law in favor of the Sharia. Such a suggestion would have been appropriate from a legal scholar, and would have precipitated lively and productive legal, political, and philosophical debates. Coming from the Chief Justice, a man sworn to uphold the law (presumably in its current form) his advocacy was misplaced and downright reprehensible. It would shake the public’s confidence in our laws and courts. Such wild speculations do not reflect mature or judicial temperament.

Even Ahmad Ibrahim, an expert in our constitution as well as Islamic laws, and whose intellect, scholarship and legal talent dwarfed Feiruz’s, had never suggested anything even remotely close.

In the end it is wholly appropriate that Feriuz’s legacy, or more correctly notoriety, would have nothing to do with his performance on the bench. Instead he will be remembered as the judge mentioned in the infamous “Lingam tape” of the pariah lawyer bragging of his ability to have senior judges in his pocket. Such supreme irony!

Precedent Setting Royal Snub

Ahmad Feiruz would not have made his formal request to the Rulers for an extension of his tenure without Abdullah first agreeing to it. In rebuffing Feiruz, the Rulers were also brushing off Prime Minister Abdullah. Whether Abdullah is too dense to get this none-too-subtle message or that his advisors had “spin” it differently to him is immaterial; it is obvious to all.

From his reactions, it was equally obvious that Abdullah was totally unprepared for this royal rebuff. Consequently when Feiruz left, he was automatically replaced by his number two, as per the constitution. Once again the Prime Minister was pathetically reduced to a hapless bystander, unable to control much less influence events around him. Instead events had overtaken him.

The power to appoint senior judges in particular the chief justice is one of the most important prerogatives of the chief executive. It is the one power that he or she would not want delegated. It is also one that should be exercised with great diligence, as its impact would long outlast the term of the chief executive.

Obviously Abdullah does not appreciate the import of this authority. On second thought, Abdullah has been derelict in all his other responsibilities, so this is nothing unusual.

This Council of Rulers is no ordinary one, for among its members is Raja Azlan Shah, the current Sultan of Perak and a former distinguished Chief Justice. Rest assured that his brother rulers were paying close attention to what he had to say on the matter of Feiruz. Raja Azlan had formed his judgment on his later successor, and his brother rulers listened.

It is one thing for the laity to pass judgment on your professional capability, but when it is one of your peers especially one as distinguished as Raja Azlan, then that is significant.

All these are obvious to everyone; yet we have the de facto Law Minister Nazri arguing that the King has to abide by the advice of the Prime Minister on this matter. By not even entertaining Feiruz’s request, the King through his brother rulers is also crudely telling Nazri to shove it.

Whether Nazri is as dense as Abdullah in not getting this brutal message is immaterial. What we do know is that the King has effectively shut Nazri up. I eagerly await Nazri’s response. In particular I would like to see whether he has the strength of his conviction to challenge the Rulers.

If Nazri and Abdullah do not challenge this precedent-setting move by the Rulers, it would establish once and for all the operative meaning of that seemingly innocuous clause – “royal advice” – stated so dryly in our constitution.

Whether Ahmad Feiruz or Prime Minister Abdullah is getting the royal shove does not interest me in the least, but when there is a significant shift in our constitutional processes, especially in matters of the crucial exercise of checks and balances, that should concern us all.

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