(Petaling Jaya, Saturday): The Prime Minister, Datuk Seri Dr. Mahathir Mohamad said on Thursday after the pre-council meeting of Barisan Nasional MPs in Parliament House that the judiciary is not beholden to the executive on the ground that “it makes many decisions without any regard for the government”.
He said the judiciary in Malaysia is not like that in some countries “where one can be sure it will decide for the government”.
The case Mahathir likes to use to show that the judiciary in Malaysia is fair on the ground that it has decided in many instances against the government is the case where UMNO was declared illegal in 1988.
But this was one decade ago, before the eruption of the worst judicial crisis in Malaysian history, resulting in the dismissal of the then Lord President, Tun Salleh Abas and two Supreme Court judges.
Public confidence in the independence and impartiality of the judiciary has never been restored to the pre-1988 judiciary crisis level.
This was why last month, 14 leading civil rightists, including former Lord President Tun Suffian and two former Bar Council Presidents, Raja Aziz Addruse, Dato Param Cumaraswamy and Zainur Zakaria, issued a joint statement on “The Rule of Law Under Threat” publicly warning about the “ever steady and increasing disregard for and erosion of the rule of law and the principles of natural justice”.
The Joint Statement stressed that “The rule of law and the principles of natural justice are the mainstay of a progressive and civilised society” which “ensure that peoples’ rights are not trampled upon and that everyone shall be treated equally before the law”.
What Mahathir and Malaysia must focus on is the crisis of confidence in the independence and impartiality of the judiciary in 1998, which has clearly reached an even lower watermark than a decade ago, when the first and worst judicial crisis occurred.
What Malaysians are concerned is not the state of the judiciary before 1988, but in 1998 and in particular from 1988-1998.
As one legal scholar had recently concluded in his study on the position of the judiciary in Malaysia: “The judiciary has lost its tussle with the executive in controlling arbitrary executive power. The executive that directly alters the affairs and status quo of the judiciary in a manner that the Malaysian executive has done is indeed a rarity and its mode of attack on the Malaysian judiciary in 1988 is not known to be practised in the liberal democratic world. But again one must understand, Malaysia is not a liberal democratic country. It is a country pegged on the might of the executive, emerging through twelve years of de facto emergency rule followed by 32 years of ‘emergency in peacetime’. Thus it is not difficult to understand why the rule of law has been understood as mere public order and democracy as rule by the majority”.
I challenge Mahathir to establish a Royal Commission of Inquiry into the Independence of the Judiciary if he is really convinced that there is a proper separation of powers, that the judiciary is not beholden to the government and that there is truly the independence of the judiciary in Malaysia.