FAC News - Friday, August 9, 2002 8:47 AM

Laws that bar courts from doing justice

“Mohd Ezam Mohd Nor's OSA case clearly showed that the courts are really not in a position to do much justice,” said a Malaysian lawyer in a letter to Malaysiakini yesterday.

“Documents providing evidence of alleged corruption of International Trade and Industry Minister Rafidah Aziz and former Melaka menteri besar Rahim Tamby Chik are 'secrets of state' akin to national security such that its disclosure would allegedly bring chaos to the nation.”

“Clearly, there is something very wrong with the manner as to how the judiciary has interpreted the law. Disclosure of corruption in such a case is ironically safeguarded by our own courts, the very institutions that we seek to rely on to bring wrongdoers to justice!”

“Of course, there is little that a mere Sessions Court judge can do to reverse decisions on the Official Secrets Act (OSA) decided by the higher courts which judges in the lower courts are by and large expected to follow.”

“For a very long time, judges in the higher courts have 'made it law' not to question executive power. Judges create law by interpreting the 'the intention of Parliament' as meaning what the executive (meaning the prime minister and his cabinet) wants the court to do or not to do.”

“Any law passed by parliament, however draconian, remains in the statute book until parliament itself repeals or amends the law or until we change the composition of parliament such that a new parliament can make the desired changes.”

“In Ezam's case there is a ‘disability’ to view disclosure as right on the basis that the law cannot be used as a veil to cloak injustices and corruption. OSA uses a technicality that mere possession is enough to warrant a guilty verdict.”

“Surely public policy, justice and mere common sense can direct the court that the law cannot be used in this manner? As such any law which is passed by parliament with due compliance with the provisions under the Constitution on the passing of laws, cannot be a valid law if it seeks to enable corrupt politicians to use it to hide their wrongdoings.”

“The higher courts have a role to check and balance and should interpret parliament's intention as being in line with values that reflect justice and equity.”