On February 10, the Supreme Court threw out yet another petition seeking to reinstate L K Advani as an accused in the trial of the conspiracy to demolish Babri Masjid. This is despite a host of circumstances pointing to the probability of Advani, NDA's prime ministerial candidate in the upcoming election, being involved in the conspiracy. Not the least of which was his notorious rath yatra in the run-up to the demolition. And the testimony of the IPS officer in charge of his security, Anju Gupta, stating that his speech on the spot minutes before the demolition had added fuel to the fire.
On February 13, in the first of the Nithari serial killing cases to be decided, a trial court pronounced death sentence on Moninder Singh Pandher for a murder that took place when he was far away in Australia. And for the murder of a girl who he did not even know. As the prosecution admitted, there was no evidence to suggest that it was at Pandher's instance that his servant Surender Koli had raped and killed 14-year-old Rimpa Haldar, the victim who lived in a slum near his house. Yet, Pandher was held to be a conspirator mainly because his sexual profligacy was found to have brought out depravity in his servant.
The two interpretations of criminal conspiracy could not have been more different: ultra liberal in the case of Advani and stretched in the case of Pandher. Neither interpretation seems justified in the given facts and circumstances. Both the interpretations raise questions about the rigor and detachment with which the judiciary at all levels performs its job.
We just don't seem to get it. The normal standards of accountability don't apply to judges. We are unable to grasp their argument that, much as it is desirable in other institutions, transparency in the judiciary will compromise its independence, a larger constitutional value. Hence, we persist with the folly of expecting judges to be swept away by the wave of transparency triggered by RTI.
This is evident from the two latest attacks on judges on July 17. First, this incorrigible sceptic, Prashant Bhushan, mobilised a statement from 25 eminent citizens denouncing a proposed Bill, which prohibits the declarations of assets made by judges to their respective chiefs from being made public. The statement fails to appreciate Law Minister Veerappa Moily's sensitivity in coming up with a draft that reflects a consensus among judges. As if that were not bad enough, the statement is cheeky enough to suggest that, following the example of their American counterparts, our Lordships too should be transparent about their assets so that we could point out any "unusual accretion" or "false declaration".
But it is not just civil society that is being irreverent to judges. For, the same day, just before shutting for the weekend, the Central Information Commission (CIC) released an order where it repeated its folly of trying to bring the Chief Justice of India under the ambit of RTI. It once again demolished the CJI's position that he need not disclose any information lying in his custody as he was independent and distinct from the Supreme Court, which is a public authority under RTI.
It may be recalled that when CJI K G Balakrishnan had first taken this view about a year ago, it was very much in the context of declarations of assets. Since those declarations were in his custody, the CJI held then that the Supreme Court registry would not entertain any RTI queries concerning them. Yet, in its latest order in another case, the CIC defied the CJI saying, "The institution and its head cannot be two distinct Public Authorities. They are one and the same. Information, therefore, available with the Chief Justice of India must be deemed to be available with the Supreme Court of India."
Like us, the CIC too doesn't seem to get it. The general logic doesn't apply to judges. When others take refuge in opacity, we are justified in suspecting that they are hiding corruption. But when judges wrap themselves in a veil of secrecy, we have to take it that they are actually doing so for our good, so that they are not distracted by allegations of corruption against themselves.
One way of coming to terms with this distinction is to re-adopt the outdated notion that king could do no wrong. Going by his logic, Justice Balakrishnan does seem to suggest some such blanket immunity to judges. If some judge has made an unusual accretion to his assets or has made a false declaration of them, it should be no cause for concern to us, the consumers of justice. It's time we realised that judges have their inscrutable reasons. We should just be grateful to them for whatever justice they dispense to us, in their magnanimity and in their good time. Don't bring the notions of accountability and transparency into this one-of-a-kind relationship.
given for objections.
New chapter in PKFZ saga
IN THE many years of covering the
magistrates’ and sessions courts, the
sharp-eyed journalist never misses a
thing. When the poor man is charged,
he’ll have an entourage of friends and
family who come in motorcycles or
those who use public transport. When
VIPs and titled ones are charged, there’s
always a convoy of luxury cars. Yesterday,
the road leading to the courthouse
in Klang was lined with Protons and
Peroduas. Even the “humble” Lexus, a
familiar sight in proceedings elsewhere,
was missing. So were the Beamers, the
Mercs, the Porsches and the odd Aston
Martin. Perhaps, it was in Singapore for
its quarterly oil change and service.
Another observation that journalists
always make has got to do with the treatment
of the accused, even before they
are formally charged. Those about to be
charged with petty theft are brought into
the dock in cuffs via a fl ight of stairs from
the police lock-up below. In some cases,
they get down direct from the Black
Maria to the dock, most of the time in
pairs. Even after they are charged and a
trial date is set, they are sent from the
dock back to the lock-up while their bail
papers are processed. In between, the
mata-mata on duty admonish anyone
who seeks to speak with the accused.
“Tak boleh cakap! Bila dapat jamin, baru
boleh cakap” is often-heard cry.
Such scenes were non-existent in
the otherwise sedate proceedings when
Phang Oi Choo @ Phang Ai Tu, 63, and
two others were charged at the sessions
court in Klang yesterday. “Who’s that?”
many would want to ask. But to those
who have been following the saga of the
Port Klang Authority and the Port Klang
Free Zone (PKFZ), it may ring a bell.
OC Phang, the former general manager
of PKA also goes by these names,
according to the charge sheets. The
three charges of criminal breach of trust
involving about RM263 million were read
out in just over a minute. The seats reserved
for the media were fully taken up,
forcing journalists in the public gallery
to share benches with some past and
present PKA staff who had come to witness
what one described as a “historic”
occasion.
Now that formal charges have been
preferred, many will rejoice that this
newspaper’s fi ve-year “affair” with the
PKFZ will come to an end. They will cite
rules of sub judice fearing those who put
pen to paper on an issue already in court
will end up behind bars for contempt.
Really?
Just because three people have been
charged on offences related to the PKFZ,
it does not mean that it’s the end of the
story. On the contrary, just as the Attorney-
General told a press conference
in Putrajaya, “it’s just the beginning”
because there’s so much more that has
yet to materialise. The reams of paper
that contained reports produced by
four separate committees and which
cost taxpayers several millions cannot
be written off by just charging three
people.
There are many other major actors
– perhaps bigger fi sh – who have been
lurking in the shadows believing their silhouettes
will never be recognised. There
are others who believe their wealth will
help them and there are also those who
think their “connections” and “cables”
will beam them up out of trouble.
Not exactly. The voice of the citizens
of this country who will collectively be
out of pocket by more than RM12 billion
with little to show have been heard. The
message is loud and clear – no nonsense
will be brooked. And even the shadows
on the wall and the big fi sh in the ocean
must be shattered as
the sound reverberates
in their respective surroundings.
Comment
by R. Nadeswaran
Judges’ transfers not due to decisions
Terence Fernandez
PETALING JAYA (Dec 10, 2009) : Three High Court judges, who had made rulings against the government and Barisan Nasional, are set to be transferred to the commercial division. 
Tan Sri Zaki Azmi
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Chief Justice Tan Sri Zaki Azmi, however, was quick to allay concerns that the transfers of Justice Datuk Alizatul Khair Osman Khairuddin, Justice Lau Bee Lan and Justice Mohamad Ariff Md Yusoff effective Jan 1 had anything to do with their recent decisions, which according to critics reflect a judiciary that is more independent of the executive and ruling party.In replying to a query from theSun, Zaki said the transfers from the High Court’s Appellate and Special Powers division to the High Court’s Commercial Division was to expose them to different ambits and areas of the law; and as part and parcel of the processes a judge goes through for future elevation to the higher courts. "The decision to transfer them was made about three months ago (Sept 4 and Oct 28). It has nothing to do with their (judicial) decisions, which I assume is the reason for questioning their transfers," Zaki said in an e-mail on Tuesday. "Transfers are done to expose them to different aspects of specialities. These experiences are necessary to consider them for promotion," he said, adding that the Chief Justice of Malaya had also transferred many other judges at the same time. Zaki said every judge is given exposure to different fields of the law to facilitate their future promotions. It is learnt that Alizatul and Mohamad Ariff are being groomed for the Court of Appeal, but Zaki was quick to point out that all three have not been shortlisted for promotions. However, he said their new postings will enhance their experience, which will be a consideration for appointments to higher levels when they are ready. On Nov 16, Alizatul declared that Umno’s Abu Hassan Sarif was no longer the state assemblyman for Kota Siputeh and ordered the Election Commission (EC) to hold a by-election. The EC has since filed an appeal. Lau had on March 6 heard an application from Perak’s Pakatan Rakyat (PR) Mentri Besar Datuk Seri Mohammad Nizar Jamaluddin, who had challenged the legitimacy of his successor, Umno’s Datuk Zambry Abdul Kadir. She ruled that the Federal Court must determine four constitutional questions before deciding who the rightful mentri besar is. The Federal Court, however, contended that Lau had not followed proper procedure and returned the case to the High Court under Justice Abdul Aziz Abd Rahim, who had found in favour of Mohammad Nizar. That decision was overturned on appeal. Mohamad Ariff had on Nov 19 ruled that the Malaysian Anti Corruption Commission (MACC) could not question witnesses beyond normal office hours. He also held that the MACC acted illegally in detaining Kajang Municipal Council councillor Tan Boon Wah of PR overnight, in a probe concerning the misuse of allocations for state assemblymen. In addressing these cases, Zaki said: "I assume the inference is (that the transfers are) because they made decisions which did not favour the authorities. Why is it other transfers do not attract as much interest? Does it mean these judges have to be kept there forever?" Alizatul and Lau were appointed High Court judges in 2004. Mohamad Ariff was only appointed on Oct 21. Bar Council president Ragunath Kesavan, however, supported the move, saying transfers are important and it was unfair to expect a judge to be kept at one place for too long. "It is good that these judges are perceived to be independent and any judge appointed after them have a benchmark to live up to," he said. | |
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