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.
Question 2: Whether in Malaysia there is no independence of the judiciary.
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.
The executive has come to occupy a truly supreme position that renders the other segments of government - Parliament and the judiciary - subservient to it.
Question 3: Has Parliament failed to protect the rule of law and fundamental freedoms and instead aided and abetted in their serious violations?
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:
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.