Rais Yatim should table the report "Justice in Jeopardy: Malaysia 2000" in Cabinet on Wednesday and propose a Commission of Inquiry to restore Malaysian judiciary to its  finest hour as in 1986-1989

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Media Statement
by Lim Kit Siang 

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In the age of information technology, when information travels at the speed of time, the Malaysian Government must not behave like the ostrich hiding its head in  the sand, thinking, because it it cannot see, that it cannot be seen.

The nation and the world are waiting for the government’s response to defend itself in the face of the most terrible indictment of the system of justice in the country - which is an even greater blot on Malaysia’s judiciary as compared to the nation’s first judicial crisis more than a decade ago.

In 1989, the  Lawyers Committee for Human Rights was one of the international legal organisations which issued a report on Malaysia, entitled "Malaysia: Assault on the Judiciary" documenting the Malaysian government's actions in attacking judicial independence between 1986-1989.

It found that since late 1986, a series of actions by the Malaysian government had violated basic principles of judicial independence established under international human rights law and that the "cumulative effect" of the government's actions had been to deprive the nation's judiciary of its independence in matters affecting state power and "greatly weakened the rule of law".

The current Minister in the Prime Minister’s Department, Datuk Dr. Rais Yatim, who is in specific charge of the portfolio of law and justice, fully agreed with its findings, as could be testified by Rais’s 1995 book "Freedom under Executive Power in Malaysia - A Study of Executive Supremacy" , in particular the following conclusions:
 

• "Since late 1987, Prime Minister Mahathir has issued a series of public statements critical of the judiciary. He has not only questioned the judiciary's prerogative in adjudicating cases concerning state power, but has publicly questioned the integrity of judges who have ruled against the government in such cases. These statements have created improper pressures on judges with respect to cases concerning public policy issues. This is contrary to standards of international  law, including the UN Basic Principles, which set out that the judiciary shall decide matters before them ‘without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.’"
• "The actions of the Mahathir government have sent a message to the judiciary that judicial decisions deemed likely to impinge upon the powers of the government, including the ruling coalition, may result in retribution taken against the judiciary or against specific judges. In short, the Malaysian government purposely sought to deny the nation's judiciary of its independence."
• "Since the dismissals of the three Supreme Court judges in 1988, the government has not taken steps to restore confidence in the Malaysian judiciary. Instead, key judicial posts have been filled by judges who participated in the government's administrative actions against the judges. Recent legislation has eliminated judicial review of important national security legislation. The government has been openly critical of the Malaysian Bar Council, which has sought to defend judicial independence in Malaysia. This criticism, in conjunction with a recent action for contempt of court against the Secretary of the Bar Council, indicates a continued willingness to maintain pressure against the judiciary and those who seek to defend it."

In fact, it could fairly be said that Rais in his book was  even more outspoken in his denunciation of the marginalisation of the basic freedoms of Malaysians, particularly the rule of law and an independent judiciary as compared to the 1989 report "Malaysia: Assault on the Judiciary".

Rais concluded that Mahathir had destroyed the independence of the judiciary, which is "merely illusory", "reduced to being a mere namesake" and  the doctrine of separation of powers "perfunctory".

The latest report ‘Justice in Jeopardy: Malaysia 2000" is an update of the relentless deterioratiation of the system of justice and the marginalisation of the fundamental rights of Malaysians  as documented by the 1989 report "Malaysia: Assault on the Judiciary" and Rais’ 1995 book: "Freedom under Executive Power in Malaysia - A Study of Executive Supremacy".

Rais Yatim should table the report "Justice in Jeopardy: Malaysia 2000" in the Cabinet on Wednesday and propose a Commission of Inquiry to institute  the  just rule of law and to restore  the Malaysian judiciary to its  finest hour as in 1986-1989, so that in five or ten years’ time, there would not be another report from the international legal community entitled: "Requiem for Justice in Malaysia".

There is striking similarity and correspondence in Rais’ book and "Justice in Jeopardy: Malaysia 2000".

Both agreed for instance that there had been no complaint of interference by the executive in the independence of the judiciary during the term of office of the first three Prime Ministers from 1957 to 1981 or even in the early years of Mahathir’s premiership until in the mid-eighties.

Or as Rais put in in his book:
 

"Since merdeka the judiciary had by and large enjoyed its share of independence and none of the previous three Prime Ministers, who had incidentally received their legal training in England, as much as nudged the judiciary let alone ‘assaulted’ it in Parliament as did Dr. Mahathir."  (page 302 - 7.2)

He added:
 

"The period 1986-1989 could perhaps be summarised to be the finest hour of the Malaysian Judiciary for it was during this short period that it handed down those few judgements that gave freedom a boost.  These judgements did not go down well with the Prime Minister. His dissatisfaction with the judiciary came into sharp focus when he was clearly stung by the various decisions of the court." (p. 313 - 7.2)

The cases which "stung" the Prime Minister included JP Berthelsen v. Director General of Immigration, Lim Kit Siang v. Dato’ Seri Dr. Mahathir Mohamed (contempt of court action over the Prime Minister’s interview in TIME magazine), Lim Kit Siang v. United Engineers Malaysia Bhd.,  the Aliran case, Karpal Singh v. Minister of Home Affairs, Public Prosecutor v. Cumaraswamy and the UMNO deregistration case.

Rais said that in the first judicial crisis a decade ago,  "men who were known to be upholders of the rule of law and in particular who committed themselves to the independence of the judiciary were eliminated from the system" and that "the judiciary is now more timid in asserting its judicial independence".

But Rais is now back in the Cabinet in the pivotal position of ensuring that the Malaysian judiciary can return to its "finest hour" which he had defined as the period 1986-89 and the restoration of the  just rule of law.

Has Rais returned to the Cabinet still as one of those men committed to be upholders of the rule of law and the independence of the judiciary, or minus these qualities and attributes?

In the eighties, Rais made the famous statement that he had "burnt his bridges". The question being asked is whether he had also "burnt his bridges" with his principles and convictions about a just rule of law and a truly independent judiciary.

I believe the overwhelming majority of the 193 MPs have not sighted  the system of justice in the report "Justice in Jeopardy: Malaysia 2000", released worldwide four days ago. The first thing Rais should do is to ensure that every MP gets a copy of the report when Parliament reconvenes tomorrow,  table a White Paper incorporating the government’s response and schedule two days for a special debate on the terrible indictment on the system of justice in Malaysia in the current meeting of Parliament.

(9/4/2000)