Instead of the highly controversial and disquieting proposal to fuse the adversarial, inquisitorial and syariah systems into a “national judicial system”, Fairuz should establish a Justice Commission, involving the judiciary, the bar and the civil society, to restore public confidence into 2Es and 3Is of the judiciary - efficiency, effectiveness, independence, impartiality and integrity
by Lim Kit Siang
(Penang, Wednesday): The Chief Justice, Tan Sri Ahmad Fairuz Sheikh Ahdul Halim’s proposal at the National Judiciary Conference in Kuantan to adopt a national judicial system fusing the adversarial, inquisitorial and syariah systems is not only highly controversial and perplexing, but has caused general disquiet both among the profession and the general populace as to whether this marked one fruit of the “929 Declaration” that Malaysia is an Islamic State which was made by the former Prime Minister, Tun Dr. Mahathir Mohamad at the Gerakan National Delegates Conference on Sept. 29, 2001.
The “929 Declaration” may be unilateral, arbitrary and unconstitutional pronouncement of one person, with the support of ruling political coalition, going against the 46-year “social contract” of Malaysia as a secular and multi-religious nation with Islam as the official religion but not an Islamic State, but it has more than persuasive influence in beginning to affect all aspects of national life so long as it represented the uncontradicted policy of the government-of-the-day.
As the former United Nations Special Rapportuer on the Independence of Judges and Lawyers, Datuk Param Cumaraswamy and many legal practitioners have pointed out, the problem of backlog of cases has nothing to do with whether a judicial system is adversarial, inquisitorial or syariah.
Malaysians have famously short memory, as it was only a few months ago that the media were full of reports about the grave injustices caused by backlog of cases in syariah courts – with the issue debated not on in Parliament, but also attracting the attention of top government leaders and the Sultan of Selangor.
In July last year, the Sultan of Selangor, Sultan Sharafuddin Idris Shah said that he had received complaints that Syariah Court judges were biased against women in their judgments, too rigid in carrying out their duties and slow in handling its divorce and asset distribution cases.
In November last year, the then Deputy Prime Minister, Datuk Seri Abdullah Ahmad Badawi expressed dissatisfaction with the Selangor Syariah courts for taking seven years to issue a divorce certificate to a single mother.
Just as there are backlog of cases and injustices in syariah systems such as practised in Saudi Arabia, the answer is not to be found in fusion of two different laws and integration of three sets of judicial systems, but to find out why countries with a similar adversarial system as Malaysia could be successful and efficient in the disposal of huge backlog of cases.
Ahmad Fairuz was impressed with the Indonesian inquisitorial system where “The Jemaah Islamiyah terrorist trial was completed in just weeks but in our country, such sensitive cases can take years before they are disposed.”
The Chief Justice is wrong on two counts. Firstly, as remarked by Param Cumaraswamy, the speed of the Jemaah Islamiyah terrorist trial was exceptional because of international pressure to prosecute those responsible for the Bali bombing – and has nothing to do with whether a system is adversarial, inquisitorial or syariah. Malaysia is also capable of exceptional speed in completing a high-profile political trial and rush to judgment as illustrated by the two marathon trials of former Deputy Prime Minister, Datuk Seri Anwar Ibrahim although the whole process could turn very tardy when it comes to the appellate levels.
Secondly, Malaysia’s problem is not that “terrorist trials” take years before they are disposed, but that the alleged “terrorists” are not even put on public trial as the government preferred to resort to the Internal Security Act to detain them without trial.
The government had accused Jemaah Islamiyah and Kumpulan Militant Malaysia (KMM) members of a series of crimes like bank robberies, bombings of a church and a Hindu temple, and even the assassination of the Lunas State Assemblyman in Kedah, Dr. Joe Fernandez in November 2000, but none of them who are currently under ISA detention have been publicly tried although the crimes were committed more than three years ago. This has nothing to do with Malaysia having an adversarial system as compared to Indonesia’s inquisitorial system!
Instead of the highly controversial and disquieting proposal to fuse the adversarial, inquisitorial and syariah systems into a “national judicial system”, Fairuz should establish a Justice Commission, involving the judiciary, the bar and the civil society, to restore public confidence in the 2Es and 3Is of the judiciary - efficiency, effectiveness, independence, impartiality and integrity.
Let the Justice Commission study the merits or otherwise of the Chief Justice’s extraordinary proposal for the fusion of the three adversial, inquisitorial and syariah systems into one national judicial system.
Solution for the efficient clearing of backlog of cases need not wait for the outcome of the Justice Commission as there are enough model systems in other countries in this respect for Malaysia to emulate.
It is tragic and scandalous that although the credibility, reputation and legitimacy of the system of justice in Malaysia plunged to an all-time low when the international judicial and legal community issued its terrible indictment in a report entitled “Justice in Jeopardy: Malaysia 2000”, no serious efforts had been made in the past three years despite two new Chief Justices to address the fundamental problems and institutional reforms needed to restore national and international confidence in the 2Es and 3Is of the judiciary - efficiency, effectiveness, independence, impartiality and integrity.
At the 12th Malaysian Law Conference last week, former Finance Minister, Tengku Razaleigh Hamzah quoted an anecdote in the nineties to illustrate his lack confidence in the Malaysian system of justice, how he was advised by his lawyer and a former Supreme Court judge “that it would be very difficult to get justice in my own country, especially when my adversaries were closely connected to the powers that be” and not to resort to the Malaysian courts when his political enemies alleged that he was responsible for the BMF scandal. But “the opportunity came when the same allegation was published in a number of foreign newspapers” and he hesitated no longer and filed actions in the appropriate foreign courts against those newspapers and cleared his name.
Let me add my anecdote. In January 2000, I consulted two jurists who had held the highest judicial office in the land, former Lord Presidents the late Tun Suffian and Tun Salleh Abas, on the advisability of challenging in court the constitutionality of the tenth Parliamentary meetings and the validity of its enactments and decisions.
The first meeting of the tenth Parliament was summoned by a royal proclamation on 9th December 1999, but this proclamation was defective as under the Constitution, the Yang di Pertuan Agong acts on the advice of the Cabinet, which was formed and held its first meeting only on Dec. 15, 1999.
While both agreed that the convening of the 10th Parliament was unconstitutional rendering all its subsequent acts unlawful, both advised against instituting any court challenge - a sad commentary on the state of the system of justice in Malaysia at the time when the two former Lord Presidents themselves had no confidence in it!
Both these anecdotes underline the unpleasant truth that the focus of national concern must be the restoration of national and international confidence in the independence, impartiality and integrity of the judiciary in Malaysia, as well as its efficiency and effectiveness.
* Lim Kit Siang, DAP National Chairman