It has caused nation-wide dismay, not only in the legal community, the civil society but also among the people at large as to whether Malaysia can proceed forward to a new era of public confidence in the just rule of law and a truly independent judiciary or whether the country is to retrogress to the recent dark age for the system and cause of justice.
For the past eleven months, Malaysians had high hopes for a fresh beginning towards a new era for the administration of law and system of justice but Gani’s appointment seems to have brought the past back to the present.
When Tan Sri Mohamed Dzaiddin Abdullah took office as the new Chief Justice of the Federal Court last December, he won the hearts and raised the hopes of Malaysians with his courageous admission that his first priority was to restore public and international confidence in the judiciary.
Recent mounting concerns about the fragility of judicial and legal reforms necessary to fully restore national and international confidence in the system and cause of justice, the rule of law, an independent judiciary and bar have all reached a crescendo with Gani’s appointment as the new Attorney-General.
This is because Gani had been fully associated with the dark age of the system and cause of justice in Malaysia, which all Malaysians, including the present Chief Justice and the judiciary, want to put to rest permanently and not be resuscitated to haunt the national landscape.
The propriety and wisdom of Gani’s appointment as Attorney-General are most debatable not because he is not talented but for his role in reducing the Malaysian system and cause of justice into a national and international scandal until December last year, the subject of an avalanche of adverse criticisms by the international legal and judicial community, culminating in the damning report, "Justice in Jeopardy: Malaysia 2000" - a joint report of four reputable international legal and judicial organisations in April 2000.
In its “Conclusions and Summary of Recommendations”, the report
“Justice in Jeopardy: Malaysia 2000” stated:
“Overall, however, our clear impression is that there are well-founded grounds for concern as to the proper administration of justice in Malaysia in cases which are of particular interest, for whatever reason, to the government. Plainly, this is only a small proportion of the total number of cases which arise, but they are of vital importance to the well-being of the entire system of justice in Malaysia. The central problem appears to lie in the actions of the various branches of an extremely powerful executive, which has not acted with due regard for the other essential elements of a free and democratic society based on the just rule of law. Such due regard requires both a clear grasp of the concept of the separation of powers and also an element of restraint by all branches of the executive. These have not always been evident. There must be a truly independent judiciary, fully prepared at all times to do justice for all, whether strong or weak, rich or poor, high or low, politically compliant or outspoken. There must be an autonomous bar which is allowed to render its services freely so as to enable it to fulfil the purposes set out in its governing statute. Repression of fundamental liberties should be maintained only if and to the extent that is absolutely necessary. There is real cause for concern in all of these areas.”
Is Gani as the new Attorney-General prepared to adopt this statement as his guiding motto to fully restore public confidence in a just rule of law and a truly independent judiciary, or have Malaysians to revert to the recent past where, as the report stated succintly, “There is real cause for concern in all of these areas”?
The propriety and wisdom of Gani’s appointment as Attorney-General is not only because of his role as head of the prosecution division in the AG’s Chambers in the years which plunged the Malaysian system of justice into national and international disrepute, as in the prosecution of Lim Guan Eng, Anwar Ibrahim, Karpal Singh and Irene Fernandez, but also because he has still to clear himself of severe stricture by the Federal Court for his own personal conduct in the Zainur Zakaria contempt case as well as the police report for corruption which Anwar Ibrahim had lodged against him.
On 30th November 1998, Justice S. Augustine Paul convicted Anwar Ibrahim’s lawyer, Zainur Zakaria, for contempt of court and sentenced him to three months jail after ruling that Anwar’s application to disqualify two senior prosecutors, Dato' Abdul Ghani Patail and Azahar bin Mohamed in the corruption trial was baseless.
The application was based on a statutory declaration made by lawyer Manjeet Singh Dhillon dated 9 November 1998 and a letter he wrote to the Attorney-General dated 12 October 1998 accusing Gani and Azahar of threatening his client, Datuk S. Nallakaruppan, and asking him to fabricate evidence against Anwar.
On 27th June 2001, the Federal Court comprising Chief Judge of Sabah and Sarawak, Justice Tan Sri Datuk Steve Shim, Federal Court Justices Datuk Abdul Malek Ahmad and Datuk Haidar Mohd Noor freed Zainur from the contempt of court conviction.
In his judgement, Shim said Gani should have given his personal explanation on the allegation that he had threatened Nallakaruppan to fabricate evidence against Anwar.
On the other case, Anwar lodged a police report in July 1999 against Gani and others alleging interference of justice in shielding the Minister for International Trade and Industry from being prosecuted in court on five corruption charges.
Anwar referred to a document of the Prosecution Division, Attorney
General's Office dated 14 March, 1995 signed by Gani, which was handed
him when he was Deputy Prime Minister by Attorney General, Tan Sri
towards the end of 1995. The document, whose veracity had never been denied even when I raised it in Parliament in July 1999, clearly stated that there was prima facie basis to prosecute Dato Paduka Rafidah Aziz, the Minister for International Trade and Industry (MITI) on five counts of corruption under Section 2(2),Ordinance 22, 1970. Anwar said in the police report that the Attorney General had been satisfied with the investigations carried out by the Anti-Corruption Agency and was ready to prosecute Rafidah Aziz in connection with the approval of preferential bumiputera shares to her son-in-law.
In the interests of public accountability, transparency and integrity particularly for the post of the highest legal officer of the land, Gani should give a full and satisfactory accounting of these two episodes before assuming the office of Attorney-General, which carries the awesome powers of sole and full discretionary prosecutorial powers “to initiate, conduct or discontinue any proceedings for an offence” under Article 145 (3) of the Constitution.
Parliament should do its duty to summon Gani to appear before it to furnish full accountability not only on these two episodes - the serious allegations of threatening Nallakaruppan to fabricate evidence against Anwar Ibrahim and interfering in obstructing the process of justice in not prosecuting Rafidah Aziz - but also with regard to his policy approach as to whether as Attorney-General he is committed to a new era of public confidence in the system and cause of justice in Malaysia or a regression to the dark judicial and legal age of recent past.