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The state of mind of the post-1988 Gen Y jurists

We now seem to have many actively vociferous ex-jurists who seem to be in the thick of the state of our politics by making known their comments. I am a firm believer in freedom of speech, it may be a Western idea to some but the basic principle is to allow one to voice out his thoughts, it is the very basis of our civil society today whether we are Westerners or South-East Asians.

There have been many comments made by two very vocal ex-jurists both coming from the appellate courts and it is not surprising that this is what we have now come to in terms of our judicial independence.

The judiciary was once a very formidable institution and stood shoulder to shoulder with the other two organs of state in this country but sadly today, it has been reduced to another plain, standard and subservient government department taking its orders from the forces that hold the powerful magic wand of executive power.

I will not want to go through the comments made by these ex-jurists as many have dissected it and shown to all and asunder that such comments are not worth the positions that these ex-jurist once held.

I would like to delve into the state of mind of the current set of jurists who are still in service. I would like to term them as the Generation Y jurists as many would have only come to serve in the judiciary after 1988. It has been 26 long years but the effects of its aftermath are now very clearly seen. We have a judiciary today which has become solely beholden to those who hold the great powers of the executive.

Expounding comments and thought like what we had heard from the ex-jurists recently will go to show what is actually in the minds of these jurists when they sit on the bench to decide on the fate of people before them. One will be surprised that many of those who are at the mid-senior level behave more like compliant uniform agency enforcers than like independent-minded jurists who will right a wrong when a litigant comes before them.

This slew of sedition charges will not hold water if we had a very bold and courageous judiciary. Yes, we do have an Act which is 66 years old which the British colonisers used to silence the then-critics, but what we have today is another form of colonisation of the mind by the forces that seek to control by using these pieces of legislation thinking that with legitimacy, the people will be quietened.

If we intend to quieten the people, then we ought not to call ourselves a democracy. In the west they learned to accept criticism as such a practice made them stronger in character and tolerance and as a result of the venture, we see many individuals who may have never been able to lead local communities today lead nations. President Barack Obama is a classic example of this form of progress.

The difference between them and us is that they have accepted the differences and the diversity and see it as a strength but we still see the differences and diversity as a threat.

If the jurists that we have today can think and execute their powers in the fullest of wisdom based on the enshrined principles of free speech and association that the founding fathers of this nation and the drafters of the federal constitution had envisaged, then we would see all these sedition charges be thrown out.

Just a letter seeking help and hoping for change

For example, if the jurist who had sent the founder of the Hindraf movement to prison on the charge of sedition for writing a letter to the then British prime minister, thought for a moment that all that had been done was just a writing of a letter where one had penned down one’s thoughts and sought some help and hope for change, which is all part and parcel of a practising democracy then such a charge ought to be thrown out and the litigant set free.

But we have a judiciary that thinks otherwise. Our jurists believe that the executive should have unfettered power which ought not to be questioned. But despite all this, our young in the universities are thought about the doctrine of separation of powers and the systems of checks and balances in a democracy when they go through the paces in the study of law.

Even then, when they are asked to be critical and analytical in their thoughts and responses, they are not spared from the wide purview of the Sedition Act. Therefore thinking analytically, even at the stage of being educated in the field of law, the young are thought to be very careful in expressing their views and research.

If this is how it is from the start, can one expect these young entrants to form an opinion of their own when they assume positions in the judiciary, prosecutions, police and other law enforcement agencies?

We have learned jurists today who decide based on what is suited to the powers that be today, when they need to follow the letter of the law to the word and protect enshrined rights in the federal constitution like the right of the legislature to decide on matters concerning its affairs, they will do so but when it comes to another situation where it may favour the opposition or the other governing coalition, they will decide as though there is no constitution at all!

This was the case when the Pakatan government lost power in Perak in 2009 and through all its battles in the superior courts to seek justice. Therefore it is not surprising that they are many learned jurists in our midst today, who express their inner feelings about the Non-Malays and other minorities when they are no more in power.

Prior to 1988, we had jurists who questioned unfettered power and righted what was very wrong in the eyes of the federal constitution. But 26 years on, we now have a very new generation of jurists who are more like tuned automatons instead of wise arbitrators.

Despite this new generation of jurists being in power today, we still have a few from the old school of thought who are still deciding in favour of justice and equality before the law. These people may be the ‘last of the Mohicans’ who still are courageous enough to decide on what ought to be right even though it may not be well-liked by the forces that wield executive power.

We can only hope that there will be more of them like these good people from the younger generation who are now occupying the seats of power as deciders of fate. This hope seems to be fading by the day as we see some laws not being applied to certain groups of people no matter what they may say and express as their opinion.

Few are made of that material

This is where again the role of the jurist is very important, if we had a very independent bench of jurists, such charges would be thrown out when it is brought before them but sadly we can’t envisage that because very few of our jurists are made of that material.

What this goes to show is that even amongst our jurists we seem to see a drastic lack of interest in righting what is wrong as long as there is a way in which the enshrined rights in the federal constitution allow. If this is the state of affairs of our learned jurists, then what more of others who occupy seats of power in law enforcement?

Accountability only applies if that particular person is due to be silenced or booted out from the service because he or she is unable to be a ‘team player’ who will listen to the ‘umpire’ that holds the ‘wand of executive power’, where if the ‘umpire’ says shift the goal post, one should do it without question even though it may not be a level playing field any more.

Let us not expect anything spectacular and highly opinionated from our young and those who are upcoming today, as it is we who plant the seeds of fear to speak up and opinion-ate from school right up to the university.

Whilst even in university, we seem to frown upon those who speak up to ask the lecturers and forum leaders on topics of discussion. We say listen, listen and listen! instead of hearing out what the brave young soul has to say and reason upon that opinion or view and encourage more out of them instead of unquestioned submission.

Charging people for speaking up will only make the snowball grow larger, a classic example would be the poor street vendor who got fed up with the system in his country and decided to torch himself in front of a municipality building, which in turned started the Arab Spring in the Arab world. We still have a flicker of hope, let’s not dim it or blow it away altogether. We don't want darkness, there must be light at the end of the tunnel. Happy Deepavali!

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