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 Registrarís 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 "doesnít 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 Malaysiaís 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 Ministerís 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 Raisís 1995 book
"Freedom under Executive Power in Malaysia - A Study of Executive Supremacy"
, in particular the following three quotations from his book:
"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".
Raisí 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 Mahathirís premiership until in the mid-eighties have found support by both national and international jurists and reports.
Thus, Rais said in his book:
"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
Its 1995 report country report on human rights in Malaysia referred
to the following judicial development in the country:
Its 1996 report said:
Its 1997 report said:
Its 1998 report said:
Its 1999 report said:
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.
"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
"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:
"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 darenít 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 wouldnít like to be tried by todayís judges, especially if I am innocent."
Tun Suffian concluded:
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 Raisí 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."