Call for an emergency meeting of Parliament to form a commission of inquiry to prove Tun Suffian wrong that Malaysia needs anotehr generation before there could be a restoration of  public confidence in the independence, impartiality and integrity of the judiciary

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Speech
- Barisan Alternative Grand Dinelogue
by Lim Kit Siang 

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Eusoffe said he coincidentally "bumped" into Lingam when holidaying in New Zealand, and relegated Rais to a Minister for "tables and chairs" for the Chief Registrar’s Office and not law.

Eusuff said: "I suppose when we need tables and chairs or a new courtroom, we go to him."   He stressed that the minister "doesn’t look after the judiciary". (Star 7.6.00).

The decision by the Malaysian Bar Council to hold an urgent general meeting to consider resolutions on the "integrity of the judiciary" is most welcome and timely, as there are many who regard this as a mere personal  tiff between Rais and Eusoffe Chin.

The issues involved are not personal questions  but concern fundamental principles of judicial independence, impartiality, accountability and integrity and public confidence in the system of justice.

For over a decade, there had been growing national and international concern about the deterioration of public confidence in the system of justice in Malaysia, and the time has come for such erosion of public confidence to be halted and for efforts to restore public confidence in the system of justice to be started.

By and large, there is considerable unanimity of views that Malaysia’s crisis of confidence in the system of justice started only in the latter part of the 80s and that Malaysia did have a very independent judiciary until 1987.

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 three quotations from his book:
 

"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."

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

Rais’ finding that there had been no 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 have found support by  both national and international jurists and reports.

Thus, Rais said 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)

"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 United States Department of State annual country reports on human rights practices, for instance, is in agreement with Rais when in its 1993 report said:
 

"The public and the legal community have long regarded the Malaysian judiciary as committed to the rule of law.  The judicial system traditionally exhibited a high degree of independence, seldom hesitating to rule against the Government in criminal, civil, or occasionally even politically sensitive cases.  For example, the High Court ruled in February 1988 that the dominant party in the Government coalition was illegally constituted.  However, the Government's dismissal of the Supreme Court Lord President and two other justices in 1988, along with a Constitutional amendment and legislation restricting judicial review, resulted in less judicial independence and stronger executive influence over the judiciary in politically sensitive cases.  These developments created the possibility that Malaysians who might otherwise seek legal remedies against government actions would be reluctant to do so.  The 1988 changes have also resulted in less willingness by the courts to challenge the Government's legal interpretations in politically sensitive cases."

Its 1995 report country report on human rights in Malaysia referred to the following judicial development in the country:
 

"With the appointment of a new Chief Justice last year, the relations between the judiciary and the bar appeared headed for a more cordial and effective partnership.  However, following a series of questionable  election-related decisions and the controversial handling of a  celebrated commercial case this year, impartiality and independence of the judiciary were again in the spotlight.  The Bar Council issued strong condemnations of the judiciary and of the Chief Justice.  The press gave wide and fair coverage to the debate.  As the public debate escalated, the Prime Minister advised the Bar Council and the judiciary to work out the problems quietly and avoid press battles.  The Bar Council has vowed to stand firm in its push for an independent and impartial judiciary."

Its 1996 report said:
 

"A letter alleging gross judicial misconduct led to an investigation by the Government and the abrupt resignation of a high court judge who was widely assumed to have authored the letter.  The Attorney General proposed that the Bar Council's membership include law lecturers and government lawyers, in addition to private attorneys.  Members of the Council, however, view this proposal as an attempt to dilute the Council's effectiveness and independence, and have vowed to fight it."

Its 1997 report said:
 

"Past government action, constitutional amendments, and legislation restricting judicial review have undermined judicial independence and strengthened executive influence over the judiciary in sensitive cases.  A number of high-profile cases continued to cast doubts on judicial impartiality and independence.  Members of the bar and other observers continued to express serious concern about this issue"

Its 1998 report said:
 

"Over the past decade, government action, constitutional amendments, and legislation restricting judicial review have undermined judicial independence and strengthened executive influence over the judiciary.  A number of high-profile cases continued to cast doubts on judicial impartiality and independence, and to raise questions of arbitrary verdicts and selective prosecution.  Members of the bar and other observers continued to express serious concern about these problems.  In addition, the continuing deterioration of judicial independence has led to concern about the overall fairness of the judiciary."

It continued:
 

"In cases widely thought to be politically motivated, several large companies, prominent businessmen, and one prominent lawyer brought suits for libel and slander against the U.N. Special Rapporteur on the Independence of Judges and Lawyers Datuk Param Curamaswamy, who is a Malaysian citizen, and against the Malaysian Bar Council's former secretary general Tommy Thomas.  The charges stemmed from an article that alleged improprieties in the judiciary.  The courts rejected Param's request to have the suit dismissed before trial based on his claim of immunity as a U.N. Special Rapporteur, a claim supported by U.N. Secretary General Kofi Annan… The cases against Lim Guan Eng, Irene Fernandez, and Murray Hiebert  also raised questions about judicial independence and impartiality."

Its 1999 report said:
 

"The Constitution provides for an independent judiciary; however, since 1988, government action, constitutional amendments, legislation restricting judicial review, and other factors have eroded steadily judicial independence and strengthened executive influence over the judiciary. A number of high-profile cases continued to cast doubts on judicial impartiality and independence, and to raise questions of arbitrary verdicts, selective prosecution, and preferential treatment of some litigants and lawyers. Members of the bar, NGO's, and other observers (including those who attended the September Commonwealth Law Conference held in the country) continued to express serious concern about the deterioration of the independence and overall fairness of the judiciary."

It continued:
 

"The cases against former Deputy Prime Minister Anwar Ibrahim and some of his associates, Lim Guan Eng, Irene Fernandez and Murray Hiebert also have raised questions about judicial independence and impartiality. Nonetheless, the Courts do not rule exclusively in favor of the Government. The courts dismissed several cases against opposition figures during the year."

Amnesty International in its latest report on Malaysia, entitled "Malaysia: Human Rights Undermined - Restrictive Laws in a Parliamentary Democracy" released on Sept. 1 last year had made a similar critique on the independence of the judiciary in the country.

It said:
 

"The role of the Judiciary in upholding the principles of the Constitution, including fundamental rights, has taken on an enhanced importance as the powers of the Executive have increased by way of emergency legislation and various other arbitrary powers awarded by statute.

"Before the late 1980s the Judiciary was seen as a stalwart defender of the rule of law, if at times certain judicial interpretations of case law were regarded by critics as overly conservative. During the late 1980s the Executive came into increasing conflict with the Judiciary after a number of cases in which government decisions were overturned.

"In March 1988 the Constitution was amended to make the jurisdiction and powers of the court subject to the federal law rather than the Constitution, thus making it possible for parliament to limit or abolish judicial review by a simple majority vote rather than by the two-thirds required for a constitutional amendment.
 
"In May 1988 continuing tensions between the Executive and Judiciary led to a judicial crisis when, just before a crucial court hearing over the legal status of UMNO, the Yang di- Pertuan Agong suspended the Lord President of the Supreme Court, Tun Salleh Abbas. A tribunal of Supreme Court Judges then concluded he was 'guilty of misbehaviour in the form of bias against the government' and he was dismissed in August 1988. Five of the remaining
Supreme Court judges were also suspended, and two later dismissed, in connection with the legal proceedings surrounding the dismissal of the Lord President.

"These traumatic events placed a question mark in the minds of many Malaysians over the ability of the Judiciary to maintain its independence, especially in cases seen to be sensitive politically. These doubts have lingered, and there is continuing concern that the Judiciary has not adequately checked the abuse by the Executive of its wide discretionary legal powers."

The latest international indictment on the system of justice is "Justice in Jeopardy: Malaysia 2000",  a joint report of International Bar Association, the Centre for the Independence of Judges and Lawyers, the Commonwealth Lawyers' Association and the International Lawyers' Union released worldwide in early April this year.

The concerns about a just rule of law and a truly independent judiciary are also the concerns of all thinking and patriotic Malaysians.

The recent  speech by  former Lord President Tun Suffian  in honour of the late Justice Tan Sri Wan Sulaiman in Kuala Lumpur on 10th March 2000 is the best testimony.

Recounting the first judicial crisis in 1988 resulting in the removal of the then Lord President Tun Salleh Abas, Tun Suffian said:
 

"The news of the devastation that hit the judiciary resounded throughout the world and reached me in Geneva, where friends asked me what sort of country Malaysia was.  I was at  a loss to explain and, for the first time in my life, I felt ashamed of being a Malaysian."

He added:
 

"I had predicted that our judiciary would take a whole generation to recover from the assault. Now that more than 12 years have elapsed, I doubt if the judiciary would recover in a generation from today.

"Judges who joined in downing their boss have been rewarded by promotion. Judges who did not, have been cowed into silence.  Judges are at sixes and sevens. Some daren’t speak to each other. While there are  judges whose integrity and impartiality have never wavered, the public perception is that the judiciary  as a whole can no longer be trusted to honour their oath of office. When I am asked what I thought, my usual reply is that I wouldn’t like to be tried by today’s judges, especially if I am innocent."

Tun Suffian concluded:
 

"It is not enough for Government to have confidence in the judiciary if the public does  not. It is not enough for courts only to go through the motion of a trial.  It is not enough if justice seems to be done if in fact justice has not been done."

We do not want Tun Suffian to be right to have to wait for another generation before we can see  the recovery of the judiciary.  To use the Rais’ words in his book, the time has come for a national effort to be made to restore public confidence in the judiciary now.

When he was in Canberra for the Second Australia-Malaysia Conference at the Australian National University, which I also attended, Rais had responded to my comments on "Justice in Jeopardy: Malaysia 2000" which I had described as a damning indictment on the system of justice in Malaysia, and Rais had said that he would shortly be presenting the report to the Cabinet.

I had commented in Canberra at the procrastination on the part of the Cabinet to address the criticisms and recommendations in "Justice in Jeopardy: Malaysia 2000" as it would be more than three months since the Malaysian Government had been given copies of the report through the Malaysian Permanent Mission in Geneva and expressed my hope that there would not be any more inordinate delay.  More than two weeks have passed and Rais should let Malaysians know whether the report had gone to the Cabinet yet and the outcome of Cabinet deliberations.

Be that as it may, now that the Rais-Eusoffe contretempts have focussed public attention on the issue of public confidence in the independence, impartiality, accountability and integrity of the judiciary, the opportunity must not be lost  to make a start to restore public confidence in the system of justice.

Parliament should be summoned for an emergency session this month itself to debate not only the Rais-Eusoffe contretemps, the report "Justice in Jeopardy: Malaysia 2000" but  most important of all, how to restore public confidence in the independence, impartiality and integrity of the system of justice not in another generation but straightaway.  The first step to rebuild a judicial system all Malaysians can feel proud is to form  a commission of inquiry  to restore public confidence in the independence, impartiality and integrity of the judiciary. Let us never forget what Sigmund Freud  has said that "the first requisite of civilization is that of justice."

(10/6/2000)