Rais Yatim of the view that there is no rule of law and  no independence of judiciary in Malaysia and Parliament has failed to protect fundamental freedoms 

Speech
-
forum "Justice at Crossroads"
by
Lim Kit Siang 

(Penang, Saturday): Two weeks ago, after the arrest and the charging  of DAP Deputy Chairman and former five-term MP for Jelutong Karpal Singh, Parti Keadilan Nasional  Vice President Marina Yusoff, KeADILan Youth chief Mohamed  Ezam Mohd Noor, Harakah editor  Zulkifly Sulong and Harakah printer Cheah Lim Thye under the Sedition Act or Official Secrets Act, I posed eight questions to the Minister in the Prime Ministerís Department in charge of law and justice, Datuk Dr. Rais Yatim.

These questions concerned the administration of justice in Malaysia, three of which deal specifically the rule of law, the  independence of the  judiciary  and  Parliamentís role in defending the rule of law  and  fundamental freedoms.

I now have Raisí answers to these three questions, as follows:

Question 1: Whether in Malaysia there is no rule of law but only rule by law - resulting in the wide gulf between law and justice to the extent that courts of law have ceased to be courts of justice.

Raisí answer:
 

Question 2: Whether in Malaysia there is no independence of the judiciary.

Raisí answer:
 

Question 3: Has Parliament failed to protect the rule of law and fundamental freedoms and instead aided and abetted in their serious violations?

Raisí answer:
 

These are Raisí considered views after research and study from 1991 and 1994, and they were extracted from his doctoral thesis at Kingís College, University of London which  are published in 1995 under the famous title, "Freedom under Executive Power in Malaysia".

I am particularly drawn to his lament about the culture of fear and the lack of understanding and appreciation of the rule of law by the Malaysian people. Rais  wrote:
 

The arrest of Karpal, Marina, Ezam, Zulfifly and Cheah mark a massive assault on the rule of law,  press freedom, the right to information, fundamental liberties and democracy and Malaysians must stand up to send a clear signal to the powers-that-be that this the last straw that should serve as a catalyst for a national awakening among Malaysians about the importance of the rule of law and fundamental liberties in the  Malaysian nation-building process.

Karpalís arrest violates  international principles on freedom of expression and democracy like the Johannesburg Principles 1995  as well as all international standards and norms  on the role of lawyers such as  the 1990 United Nations Basic Principles on the Role of Lawyers.

Principles 6 of the Johannesburg Principles provides three situations where  expression may be punished as a threat to national security  but they do not apply in Karpalís case, namely  if the  government can demonstrate that:
 

  1. the expression is intended to incite imminent violence;
  2. it is likely to incite such violence; and
  3. there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

If any of these three situations envisaged by the Johannesburg Principles existed in Karpalís case, he should have been arrested at the relevant time  he said the offending terms in court, and not well after the general election.

Article 16 of the Basic Principles on the Role of Lawyers set out "Guarantees for the functioning of lawyers", providing that governments shall ensure that lawyers "are able to perform all  of their professional functions without intimidation, hindrance,  harassment or improper interference" and "shall not suffer, or be threatened with, prosecution  or administrative, economic or other sanctions for any action taken" in performance of their  professional duties.

(29/1/2000)


*Lim Kit Siang - DAP National Chairman