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Date: Sun, 11 Jun 2000 13:38:38 +0800
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Subject: [BUNGARAYA] Prove Suffian wrong - Independence of judiciary
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Speech by DAP National Chairman, Lim Kit Siang, at the Barisan
Alternative
Grand Dinelogue at Taman Medan Baru, Selangor on Saturday, June 10, 2000
at
9 pm
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
--------------------------------------------------------
In the past few days, Malaysians were offered a little glimpse of
judicial goings-on when the contretemps between the Chief Justice of the
Federal Court, Tun Eusoffe Chin and the Minister in the Prime Minister’s
Department, Datuk Rais Yatim erupted after the latter chastised the
former for his improper judicial behaviour in "socialising" with lawyer
Datuk V.K. Lingam during a New Zealand holiday in 1994.
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."
Lim Kit Siang
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