Cabinet Ministers cannot continue to act with "eyes that see not
and ears that hear not" and should act immediately to redeem Malaysia’s
honour and repute by setting up a Commission of Inquiry into "Justice in
Jeopardy: Malaysia 2000"
(Petaling Jaya, Monday): On 17th February
2000, the Malaysian Permanent Mission in Geneva was sent two advance
copies of the report: "Justice in Jeopardy: Malaysia 2000", inviting
comments from the Malaysian Government by 15th March 2000 for incorporation
in the published version of the report.
by Lim Kit Siang
The four international legal organisations which jointly sponsored the
report, the International Bar Association (IBA), the Centre for the Independence
of Judges and Lawyers of the International Commission of Jurists (CIJL),
the Commonwealth Lawyers’ Association (CLA) and the Union Internationale
des Avocats (UIA) never received any reply from the Malaysian Government
and it published its report, which was a damning indictment on the system
of justice in Malaysia, without any comments by the Malaysian authorities.
More than two months have passed since the publication world-wide of
the report and more than two weeks have passed since the Minister in the
Prime Minister’s Department, Datuk Dr. Rais Yatim had promised the Second
Australia-Malaysia Conference in Canberra that he would be presenting the
report to the Cabinet, but to date, there has been no proper official response
to the latest international indictment of the system of justice in Malaysia.
Cabinet Ministers cannot continue to act with "eyes that see
not and ears that hear not" pretending to be blissfully unaware
of the damning indictment of the system of justice in "Justice in Jeopardy:
Malaysia 2000" and the Cabinet should on Wednesday redeem Malaysia’s
honour and repute by setting up a Commission of Inquiry into the whole
question of the independence, impartiality and integrity of the system
of justice in Malaysia.
The Cabinet should not be unmindful of the fact that lack of national
and international confidence in the system of justice in Malaysia would
be a major factor retarding Malaysia’s development process by undermining
Malaysia as an international investment centre as well as the country’s
plan to be an IT power, as borne out in the latest report of the
Hong Kong-based Political Economic And Risk Consultancy(PERC), which
ranked Malaysia as amongst the five countries with the worst
legal system in Asia.
The PERC survey, released during the weekend, were based on polling
of more than 1,000 respondents, mostly in the countries assessed.
The legal systems of Singapore, Japan and Hong Kong are ranked as the
best in Asia by expatriate businessmen, followed by Taiwan, Philippines,
Thailand and South Korea. Malaysia headed the worst list followed by India,
Vietnam, China and Indonesia.
PERC Survey(0 is the best possible score and 10 the worst)
1. Singapore -- 2.57
The PERC survey said:
2. Japan -- 3.00
3. Hong Kong -- 3.76
4. Taiwan -- 6.00
5. Philippines -- 6.50
6. Thailand -- 6.67
7. South Korea -- 6.83
8. Malaysia -- 7.43
9. India -- 8.40
10. Vietnam -- 9.00
11. China -- 9.33
12. Indonesia -- 9.38
"In Malaysia, the legal system is suffering from a ‘public relations
problem’ following the saga of jailed former Deputy Premier Anwar Ibrahim,
who was beaten while in police custody prior to his trial for corruption
and sexual offences.
The Cabinet cannot take such international perceptions about misgovernance
and the lack of independence of the Malaysian judiciary lightly, if Malaysia
intends to be a serious player in the international market-place.
"Asian governments can argue that the foreigners are wrong and that
their legal systems are much better than our survey grades indicate.
As in so many things, however, perception can be just as important as reality."
The emergency general meeting of the Bar Council on June 23, 2000 on
the conduct of Chief Justice, Tun Mohd Eusoff Chin, calling for his
suspension pending the outcome of a Judicial Tribunal or a Royal Commission
of Inquiry, should be broadened to include consideration of "Justice
in Jeopardy: Malaysia 2000".
There should in fact be a full-fledged nation-wide debate instead of
a conspiracy of silence on the latest international condemnation of the
system of justice in Malaysia, focussing in particular on the findings
and recommendations of the "Justice in Jeopardy: Malaysia 2000".
Part III of the report on "Relationship between the Judiciary
and executive" said:
"In the vast majority of cases which come before the courts, at
whatever level, in Malaysia there is no complaint about the independence
of the judiciary. However, in cases which are considered of political or
economic importance to the executive, there are serious concerns that the
Judiciary is not independent either because it is leaned on directly or
indirectly by the government or because it knows what the government wants
and is simply too cowed in the light of past experiences. This perception
is also held by members of the general public."
It made 12 specific recommmendations for the restoration of the rule of
law and a truly independent judiciary namely:
"That all parties involved - the executive, the judiciary and the legal
profession - should recognise that the problem is a genuine one. As is
often the case, recognition that a problem exists is in itself a major
step towards solving it. In particular the executive must recognise that
the root causes of the problem were and continue to be namely a blatant
assault upon the Judiciary by the executive in 1987-88 and a continuing
perception that the executive ontinue either directly or indirectly to
influence the judiciary."
"That the executive should recognise the independent constitutional
position of the judiciary and have a proper understanding of what that
involves. It is the failure to understand that by a very powerful executive
that has been by far the single most important factor in bringing about
the present unsatisfactory position."
"The executive should conduct its business in such a way so as to not
interfere with the independence of the judiciary in any way. Equally important,
it should be careful to conduct its business in such a way as not to be
seen by the reasonable observer to be interfering in the independence of
the judiciary. Reasonable perception is every bit as important as the truth
in a matter of this kind."
"The judiciary should act and be seen to act with complete independence
from the executive. The decision making and reasoning of the judiciary
in the recent cases of Lim Guan Eng and Anwar Ibrahim have quite understandably
given real cause for concern in this regard."
"Senior members of the judiciary should be astute to protect the more
junior judges from anything that is or appears to be executive interference
in their independence."
"The judiciary does all in its power in the wider interests of justice
to counter the harshness of repressive legislation and overbearing actions
on the part of the executive. That is the role of the judiciary when
faced with repression no matter where it comes from. The burden will
fall mainly on senior members of the judiciary who must take the lead.
In the present situation and in light of the experiences of 1988 this will
require great courage. Even still we consider it essential if the
reputation of the judicial system in Malaysia is to be restored to what
it was and what it should be."
"The choice of judges for high profile cases should be carefully considered."
"A Judicial Services Commission should be established with the function
of recommending judicial appointments. Representatives from the legal
profession should be invited to participate as full members in this commission."
"There should be a significantly greater recruitment to the Judiciary
from the Bar the members of which should be prepared to accept posts in
"(a) The inter-changeability of lawyers and judges under the
combined Judicial and Legal Service should come to an end to ensure the
separation of powers and independence of the judiciary. (b)
An independent prosecution system should be established."
"Members of different branches of the establishment should be very
careful about how they are seen in public and by the public."
"An international conference on the independence of the judiciary be
held and training sessions on human rights law be organised for its members."
The first question is whether the Cabinet is prepared to admit that
the problem of crisis of confidence in the independence of the judiciary
exists, or whether the Cabinet continues to be of the view of those who
have "eyes that see not and ears that hear not" in denying the existence
of such a fundamental problem in our system of governance for over a decade.
*Lim Kit Siang - DAP National Chairman