Call for establishment of all-party Parliamentary Committee to examine "Justice in Jeopardy: Malaysia 2000" and to make recommendations as to how Malaysia can have just rule of law and a truly independent judiciary

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Media Statement
by Lim Kit Siang 

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Deputy Speaker Datuk Lim Si Cheng ruled that the report "Justice in Jeopardy:Malaysia 2000" which is the worst international report card for the Malaysian system of justice and judiciary since Independence in 1957 does not qualify to be a considered a "definite"  or specific matter, saying that examples of specific incidents were flash floods or World War II.

Such a ruling flies against all common sense as well as the whole tradition of parliamentary practices, both in Malaysia and in the Commonwealth.  In the first place, if there is another World War II, Parliament would be debating it not under Standing Order 18 which only allows an one-hour debate to ventilate a burning issue of the day in the form of an adjournment of the house to discuss a definite matter of urgent public importance, but as an ordinary emergency  motion allowing for  full-length debate.

Si Cheng’s ruling debases Parliament as the highest political chamber in the country capable of addressing the latest developments of concern to the people so that it is always relevant to the needs of the country.

On 16th August 1995, I sought an adjournment of Parliament on a motion of urgent, definite public importance to debate a memorandum by Tenaganita on allegations of deaths, abuses, torture and dehumanised treatment of Bangladeshi and other migrant workers at the Immigration detention camps.

Although my application failed,  the Speaker, then Tan Sri Mohd Ismail Zahir, agreed that the motion was a definite matter of public importance, but he did not agree that  it required urgent attention.

Why is it that an NGO memorandum about abuses in immigration detention camps could be be accepted in 1995 as a  "definite matter of public importance" but in 2000,  the international legal community’s report which undermines Malaysia’s international standing and reputation with its terrible indictment on the system of justice in the country is not considered as a "definite  matter of public importance"?

Is this because Parliament has become even more restricted and repressive in giving space to MPs to raise burning issues of the day?

Is this also  a message that the Barisan Nasional is going to turn a deaf ear and blind eye to the international legal community’s terrible indictment of the system of justice in Malaysia - by claiming that the "Justice in Jeopardy: Malaysia 2000" report is "not specific, not of national interest and not urgent"?

The tenth Parliament will be committing a grave abdication of responsibility if it does not focus on "Justice in Jeopardy: Malaysia 2000" because the system of justice in Malaysia was examined by the international legal community on three criteria and was found wanting, namely:
 

• The legal guarantees for the independence of the judiciary in Malaysia and whether these guarantees are respected in practice.
• The ability of lawyers to render their services freely.
• Any impediment, either in law or in practice, that jeopardises the proper administration of justice.

An All-party Parliamentary Committee should be formed  to examine "Justice in Jeopardy: Malaysia 2000" and to make recommendations as to how Malaysia can have just rule of law and a truly independent judiciary.

The Malaysian Parliament is not completely blameless that the Malaysian system of justice has failed the international test and scrutiny as having a just rule of law and a truly independent judiciary.

This is why the four international legal organisations responsible for  "Justice in Jeopardy: Malaysia 2000" said:
 

"…we have become convinced that it is the pressure of restrictive and, we think, needlessly repressive legislation that has impacted crushingly upon the agencies of the law  - the judiciary, the legal profession and the police. The true spirit of justice under the law has been weakened.  In such a climate authoritarian personalities flourish; libertarians are frustrated, practitioners are reduced to increasingly frenzied posturing; and the police wield extensive and largely unchecked powers that, in Lord Acton’s famous words, ‘tends to corrupt’.’

The report added:
 

"So long as this legislative framework remains unchanged, however, proposals to improve the positions of the judiciary and the profession can be no more than palliative. This does not mean that the judiciary should continue to act as it does now.  The judiciary also has an important role to play in softening the effect of the laws through interpretation and application of the principles of justice and equity.  We urge the judges to have the courage to rise up to this challenge. Otherwise, judges will continue to be considered as a tool to quell political dissent and free expression."

The question is not only whether there are judges in Malaysia who have the "courage to rise up to the challenge" to "soften the effect of restrictive laws through interpretation and by applying the principles of justice and equity", but also whether there are sufficient Parliamentarians with the courage to democratise the legislative framework to allow for the flowering of a just rule of law.

The All-Party Parliamentary Committee should examine in particular the criticisms of  "Justice in Jeopardy: Malaysia 2000" on various constitutional amendments and laws, as well as recommendations, such as:

1. Restoration of the original Article 121(1) of the  Constitution which vests "the judicial power of the Federation" in the High Courts.  This provision was repealed in the 1988  Constitutional amendment  which provides that  the High Courts "shall have such jurisdiction and powers as may be conferred by or under Federal Law".
 
 The report said:
 

"It seems to us that this amendment has had the effect of eliminating the inherent powers and jurisdiction of the courts. It therefore fundamentally disturbs the concept of the separation of powers and affects the ability of the judiciary to enforce fundamental rights. It tends to make the judiciary an arm of the legislature, an instrument of the executive."

2.  Repeal of Article 149 of the Constitution, which allows laws to be passed by Parliament that negate  fundamental liberties guranteed in Article 5 (personal liberty), Article 9 (freedom of movement), Article 10 (freedom of speech, assembly and association) or Article  13 (right to property) such as the Internal Security Act.

The report said:
 

"The reality is that this article turns the rights embodied in Articles 5, 9, 10 and 13 into mere privileges removable at the whim of parliament.  The whole purpose of a bill of rights (or declaration of fundamental liberties) is that the individual can look to the judiciary for protection against any abuse of power by the executive or the legislature in respect of such rights and liberties.  But by virtue of Article 149, however, this central role of the judiciary is usurped. The executive and the legislature become judges in their own cause."

3.  Repeal of Internal Security Act because it provides for "wide powers that frustrate the fundamental rights guaranteed by the Constitution".

4.  Repeal or extensive amendment of the Printing Presses and Publications Act to lessen restrictions on freedom of expression and assembly. The report said that  the "extraordinary powers" of  the Minister to grant, refuse or revoke a licence for a printing press or publication "represents a very serious erosion of the freedom of the press such as would be intolerable in a democratic society save in highly exceptional circumstances" and that "A society living under the rule of law cannot function with such serious restrictions on essential freedoms, such as expression and assembly, especially without the possibility of adequate judicial review".

5.  Repeal of the Sedition Act, as it is "easily abused" with the extremely wide definition of "sedition tendency". The report said "It might be interpreted as rendering unlawful any political campaigning against the ruling party".

6.  Repeal of Restricted Residences Act and Emergency (Public Order and Prevention of Crime) Ordinance 1969.

7.  Restoration of the right of judicial review in respect of all legislative enactments.

All Parliamentarians must give serious thought to the report’s conclusion:
 

"Although the Malaysian Constitution guarantees important rights, these rights are often deprived of their meaning and force by constitutional restrictions, many of which also deny judicial review of the executive action. A body of restrictive legislation exists in Malaysia that requires major change if Malaysia is to be ruled in accordance with a just rule of law."

(11/4/2000)