(Petaling Jaya, Wednesday): From the shocking statement by the Prime Minister, Datuk Seri Dr. Mahathir Mohamad in yesterday’s press, justifying the 36-month jail sentence, it would appear that the case is not just Lim Guan Eng vs Attorney-General but is actually Lim Guan Eng vs Mahathir Mohamad.
I had asked yesterday why Mahathir is so personally committed to want to see Guan Eng convicted, jailed and disqualified as Member of Parliament as no Prime Minister in the past 40 years of the nation’s history had ever intervened in the way he had done, not only in publicly justifying the conviction, jail sentence and disqualification of an opposition leader in the midst of the appeal process, but in publicly sending an unmistakable message to the Federal Court of the Prime Minister’s wish and desire in the final disposal of the Lim Guan Eng case.
Some had asked why if judgements could be commented on and even criticised, why the Prime Minister could not comment on the Court of Appeal decision to dismiss Guan Eng’s appeal against conviction and sentence and to allow the Public Prosecutor’s cross-appeal by enhancing the sentence from RM15,000 fine to three years’ jail and whether there are therefore double standards here.
There are no double standards here as what is at stake are the interests of justice and fair play. The Prime Minister’s position is singularly unique and different because of his pivotal relationship with the judiciary being the most important person to decide on all judicial appointments, whether the Chief Justice of the Federal Court, the President of the Court of Appeal, the Chief Judges of the High Courts and other judges of the Federal Court, the Court of Appeal and of the High Courts.
Being the most important person to decide on all judicial appointments and promotions, the Prime Minister’s public position on pending cases would place all judges in the invidious position of going against the Prime Minister and incurring his displeasure - with all the consequences on future appointments and promotions - if they should decide against the expressed wishes of the Prime Minister.
By making a statement which virtually endorsed the 36-month jail sentence handed down by the Court of Appeal on Guan Eng, and suggesting any other decision would be to show "weakness", what chance is there for Guan Eng in getting a fair and independent appeal hearing at the Federal Court?
Would all the Federal Court judges excuse themselves from hearing Guan Eng’s case so as not to be seen to be unduly influenced by the Prime Minister’s statement yesterday, as they had owed their judicial appointments to the Prime Minister?
It is true that constitutionally, all judicial appointments are made by the Yang di Pertuan Agong, but this is only a constitutional fiction, as the Yang di Pertuan is bound by the Constitution to act on the advice of the Prime Minister.
The 1994 Constitution Amendment Act made sure that there would be no doubt about this question by enacting a new Article 40(1A) which states:
"(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di Pertuan Agong shall accept and act in accordance with such advice"
The 1994 Constitution Amendment Act also enacted the new Article 122B(1), which states:
"122B (1) The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers."
Mahathir’s statement endorsing the 36-month jail sentence, reflecting his stand that Guan Eng should be convicted, jailed and disqualified as Member of Parliament is the most unthinkable and extraordinary interference with the independence of the judiciary, because of the Prime Minister’s powers on judicial appointments and promotions.
This is why Mahathir should explain why he has such a personal animus in wanting to see Guan Eng convicted, jailed and disqualified as Member of Parliament that he had done something no Prime Minister had ever done in 40 years to intervene in a case in the midst of the appeal process.
It is public knowledge that Tan Sri Rahim Tamby Cik is the blue-eyed boy of Mahathir. Is Guan Eng being punished for bringing about the downfall of Rahim Tamby Cik?
The Prime Minister’s shocking statement justifying Guan Eng’s 36-month jail sentence is a clear signal to the Federal Court as to what it should do at the ultimate appeal stage. I have been told that this constitutes clear contempt of court for a Prime Minister to so openly and blatantly bring undue influence to bear on the Federal Court.
But is there any chance of success to bring the Prime Minister to the courts for contempt of court?
(8/4/98)