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Friday, December 29, 2006

Back To Basics

I started off this blog by saying that it was time for us to ask difficult questions about this country. As the year draws to a close, I think it is even more imperative for us to ask what it is that this country needs next year and how it is we are going to get there.

I find it distressing that in discussing the state of the nation from almost any perspective it is inevitable that the discussion becomes negative, sometimes to the point of hopelessness and futility. I find it distressing not because what is discussed is untrue and that the situation is not seemingly futile. I find it so simply because everything that is said is more usually than not true.

I believe that the Administration has lost sight of the fundamentals, and in having done so, has allowed for the undermining of the foundations for a strong and vibrant nation.

A democracy like Malaysia is founded on two inter-related assumptions. First, that the key organs of state – the Judiciary, the Legislature and the Executive – are strong, dynamic and functioning as they should be, each acting decisively in a manner mandated by the Constitution towards the achievement of the aspirations of the rakyat. The notion of a “government for the people, by the people” is no less true for Malaysia than it is for any other democracy.

The second assumption is that each of the three organs of state serves as a watchdog over the other two so as to ensure that no one organ oversteps its Constitutional mandate and acts contrary to the interests of the nation and the rakyat. Put another way, the three organs of state are intended to ensure that a process of ‘check and balance’ takes place all the time. This is what we mean when we refer to the doctrine of separation of powers. Were it to be otherwise, there would be arbitrary exercises of power and where it was the Executive that called the shots in an unfettered manner, there would be a totalitarian system in place. Any democracy that was said to exist in such a scenario could not be said to be a true democracy.

Additionally, the second assumption implicitly recognizes that each of the three organs has a primary role to play in governance as a whole, and not just within the specific area of responsibility. In this way, the burden of governance is shared out and not carried by the Executive alone. Mistakes can be corrected through the judicial process or parliamentary discussion. Similarly, ideas, policies and decisions can be tested and strengthened in parliament through consultations and debate.

The reality of the Malaysian situation however is that the process of check and balance has not occurred in any meaningful way for some time. This is because the two assumptions identified above no longer have a place in this country.

The Judiciary

The Judiciary as it was conceived and entrenched into the constitutional framework by the founders of the nation was one that would be able to fulfill the role it had to play. Until 1988, this was the case and the Malaysian Judiciary was recognized as being amongst the best in the Commonwealth. This was hardly surprising as, regardless of the other effects colonisation may or may not have had on the Malayan peninsula, the British brought with them a strong judicial tradition. This tradition formed the foundation for ours. The law journals for the period leading up to 1988 reflect this as decision after decision showed the sense the Judiciary had of itself and of the role it played in nation building.

In 1988, this strong tradition of independent, fearless, learned and insightful jurisprudence collapsed. The Judiciary was attacked. Many will remember or would have heard of the dismissal of Tun Salleh Abas and two Supreme Court justices, Dato’ Goerge Seah and the late Tan Sri Wan Sulaiman Pawan Teh that year. This was the public dimension of the attack and it sent shockwaves through the system. Though the Constitution provides a mechanism for the removal of a judge on grounds of misconduct by a tribunal of peers, never before had any judge, let alone a Lord President (now known as Chief Justice) been removed. Further, the grounds advanced for the removal were incredible; in effect, the judges were removed for having acted independently and they were expected to in the circumstances. I would urge a reading, or a re-reading, of “May Day For Justice” by Tun Salleh Abas and K Das for a comprehensive picture of how the campaign against an independent judiciary was mounted by Dr Mahathir. Some details are set out below.

While recent calls for an inquiry into the removal of the three judges have largely focused on the injustices and humiliation they suffered, it must be noted that the removal and the way in which it was orchestrated was a clear signal to the Judiciary that it was not free to think that it could act independently nor was it allowed to. This was something the Judiciary appears to have taken to heart, as decisions after 1988 seem to show.

Less obviously, there was a knock on effect to the removal. The Malaysian Bar is known for its jealously guarded and fiercely defended independence. It has time and time again stood up in defence of the rule of law and the administration of justice. The Judiciary is as much a part of the administration of justice as the Bar is. And so, when the processes were started in 1988, the Bar came to the defence of the judges. Param Coomaraswamy and Raja Aziz Addruse each led the charge in their own way. Raja Aziz acted for Tun Salleh and later, as President of the Bar, called for a boycott of the succeeding Lord President, Tun Hamid Omar (Tun Hamid headed the tribunal which removed Tun Salleh even though he had been involved in some of the events that led to the tribunal being empanelled. He was also the obvious successor to Tun Salleh and as such had a vested interest. Tun Hamid refused to withdrawn, leading to Tun Salleh refusing to submit to the tribunal’s jurisdiction).

Needless to say, the relationship between the Bench and the Bar suffered. I believe this to have had a serious impact on appointments to the bench as post 1988, the majority of appointments was from the Judicial and Legal Services Commission, a part of the civil service of Dr Mahathir’s government. Further, the Bar was no longer consulted on appointments. The current legal landscape was largely shaped by these events and the judges appointed in the period after1988. The Judiciary began to act, and still acts (though seemingly less so now), defensively, seeing itself as unfairly attacked by the Bar, overlooking the bigger issues it would seem.

And though Bench-Bar relations may have improved to an extent since then, there is still a shroud over appointments and promotions and resultant questions and doubt about competency and credibility. The Bar fights on for a transparent independent judicial appointments mechanism.

Less publicly, the attack on the Judiciary took the form of a constitutional amendment that the Mahathir Administration pushed through parliament in 1988. This was a parliament that was emasculated by the 1987 Operasi Lalang by which Dr Mahathir had detained 107 activists and politicians under the Internal Security Act (the “ISA”). These included Lim Kit Siang, the then leader of the opposition, and Karpal Singh, an equally noted opposition member and Lim’s colleague in the Democratic Action Party (DAP).

The effect of the amendment was disastrous. Up to then, the Constitution had in Article 121(1) provided that the judicial power of the Federation of Malaysia was vested in the Judiciary. While seemingly stating the obvious, this provision had enormous legal significance as it amounted to constitutional recognition of the Judiciary’s entrenched right to review any exercises of power on the part of the State. Put another way, it guaranteed the right to judicial review.

The Mahathir Administration found the Judiciary to be an unnecessary obstruction and interference with what it considered its absolute right to govern. In 1986, the Supreme Court ruled against the government in a case involving the takeover of Bank Bumiputra by Petronas. The same year, the Supreme Court revoked a Home Ministry suspension of the Asian Wall Street Journal and quashed orders expelling two of its journalists. Lim Kit Siang’s challenge against UEM being granted the North South highway concession was pending before the Supreme Court as was the appeal by the UMNO 11 led by Tengku Razaleigh. The appeal would decide on the validity of elections returning Dr Mahathir as President of UMNO and the validity of UMNO as a whole. This was the backdrop to the removal of Tun Salleh, Dato’ George Seah and Tan Sri Wan Suleiman.

But it seemed that removing the Lord President and the two judges was not enough. The Judiciary had to be silenced in cases involving exercises of strategic administrative power. Article 121(1) was amended to provide that the jurisdiction and power of the Judiciary was as vested by Parliament through Federal Law. In one fell swoop, the Mahathir Administration suborned the Judiciary to Parliament and, in effect, the Executive. There was no longer the separation of powers. The question of “check and balance” no longer arose. The Malaysian Government became an absolutist one.

In this new scenario, Parliament was permitted unchecked to make laws that oust or exclude the right of the Judiciary to inquire and correct. Laws could also be made to vest a wholly subjective discretion in the Government meaning that if challenges were brought to court, the court would be in no position to question the exercise of discretion on the basis that the State “knew best”. The ISA exemplifies these laws. It has a provision, which excludes from judicial review (save over technical matters) the decision of the Home Minister to detain without trial for renewable periods of up to 2 years. The Printing Presses and Publications Act has a similar provision, as does the Immigration Act.

Why would any Executive of any State create law that deprives the Judiciary of the State of its essential function? Why would the Executive create laws that exclude the right of review? There is only one possible answer: the Executive does not want to be told it is wrong; the Executive wants to act above the law.

In the same amendment process, the now controversial Article 121(1A) was inserted. As Dr Mahathir recently said, he got away with it. I do not however consider Article 121(1A) problematic.

I do however think that the 1988 amendment to Article 121(1) was unconstitutional as its effect was to upset the balance of powers. This balance is inherent in the doctrine of separation of powers that I believe our Constitution to embody. There is a widely accepted principle of constitutional law that militates against amendments to a written constitution that changes its ‘basic structure’. The 1988 Article 121(1) amendment had the effect of changing the basic structure of the Constitution (this is why the open letter by the Article 11 coalition calls for a return to the pre-1988 position).

In a somewhat startling decision, the Federal Court under the stewardship of Tun Dzaiddin held in effect that the amendment was a valid one and had all the effects that the Mahathir Administration wished for. I believe this decision to be reflective of the conservatism that developed subsequent to the events of 1988.

The Executive And Legislature

The events of 1987 and 1988 wounded the nation deeply. The national psyche was affected in ways that are more obvious now that the Mahathir Administration is no more. Amongst the lingering effects of those dark years, the most telling is the continued posturing on the part of the Executive that it knows best and that it will do whatever it considers necessary to enforce or reinforce the belief that it is correct.

Put another way, two lessons appear to have been taught to those in the current administration by the events of 1987/1988 (which replayed in one form or the other to the end of the Mahathir Administration). First, the way in which matters were dealt with was effective; that the ends justify the means. How else can one explain the perpetuation of views of governance and the rule of law which are not correct and which allow for arbitrary exercises of power. We have heard in these past three years astonishing views by Ministers that mirror the misguided views of Dr Mahathir on Executive discretion, the role of the Courts and so on. We will all remember the astounding suggestion by a senior Minister that the Anti-Corruption Agency has no power vis a vis Ministers as the ACA is answerable to the Ministers. This exemplifies the belief on the part of some, if not all, Ministers that they are above the law.

In the same vein, how else can one justify the continued lack of transparency and accountability on matters of public interest. For instance, a Minister says that those affected by recent floods were in fact warned. How do we know this for a fact? The reality is that we do not and unless we are prepared to go through great efforts to confirm this on our own to an uncertain end, we will have to rely on the say-so of the Minister. This scenario is repeated in almost every other aspect of public life.

Second, that the Judiciary and even the Legislature are mere appendages to the Executive. There still appears to be a belief on the part of the Badawi Administration that only it knows what is best for the nation and that there is no real value in meaningful consultations and debate; that the process of democracy is an annoyance that has to be tolerated in order to preserve a semblance of correctness.

The Speaker and Deputy Speaker of Parliament routinely disallow important motions by the Opposition leaving only in general mundane matters that are not threatening to the current Administration (I concede that there are exceptions from time to time, mainly because the pressure to discuss these matters is too great to deflect). Parliamentary debates are unnecessarily defensive and gladiatorial in nature. It seems that scoring points against the other side is the objective rather than discussing matters, which affect the nation’s interests.

Similarly, the continued reliance by the Government on ouster provisions to exclude judicial scrutiny cannot be explained away by a declaration that the law provides for such exclusion. The Executive must act in a way that is transparent and be seen to be transparent. It can submit to scrutiny. It can move to repeal these offending provisions.

It is hardly surprising that in perpetuating the closed-door methodology of the past, the problems that afflict this country have worsened. At the heart of these problems is corruption, a scourge that insidiously affects almost every, if not every, sphere of our lives. We have not climbed up the Transparency International’s Corruption Perception Index since the Badawi Administration came in. We have in fact fallen lower in the rankings. There is no point pondering over why this is so. The answer is obvious: what else can we expect when one cannot discuss these matters for fear of reprisal through a range of draconian laws; when one cannot adequately challenge situations which stem from corruption due to limited jurisdiction on the part of the courts; and when one cannot openly discuss these matters in Parliament because the rules of play are implemented to ensure discussion of only matters of a non-threatening nature.

It may not be that the Executive chooses to condone corruption. It may be that the Executive in its misguided notion that it has to solve all problems is in no position to do so. Power sharing as is contemplated by the doctrine of separation of powers will ago a long way to alleviate this difficulty.

A 2007 Wish List

The Executive of a country serves the nation and the rakyat. The brief overview set out above suggests that the reverse is true in Malaysia. The Badawi Administration to show that it serves the rakyat and not just itself or UMNO. Merely paying lip service to the concept through rhetoric and posturing is insufficient.

Malaysians have spoken out against repression and oppression for a long time now. We have been speaking out since the events of 1987 and 1988. Thus far, despite all that has been said and done, it appears that the Administration only listens when it wishes to and takes on board only what is useful for it. This has to change. It is time for the Administration to listen to us meaningfully and to show us that it has heard us. It can do so by taking several crucial steps all of which will go to show Malaysians that politics does not define us.

First, give back to Malaysians an independent Malaysia Judiciary. Repeal the 1988 amendment to Article 121(1) and reinstate the previous version. Let the Judiciary have its judicial power back and let the Judiciary defend against arbitrary and excessive exercises of power like it has always done. Let Malaysians feel secure in the knowledge that their rights are protected and that the balance of power is restored.

Second, acknowledge that the events of 1987 and 1988 are years that have to be accounted for and that injustices were caused on so many levels. I do not think that Malaysians want retribution. They want to heal. They want the Judiciary to heal. They want to know that they exist in a country in which democracy means something.

Third, repeal laws that have served only to perpetuate the climate of fear created in 1987/1988. These laws only serve the vested interests of the Executive. Malaysia does not have any need for the Internal Security Act, the Sedition Act, the Official Secrets Act, the Printing Presses and Publications Act and the University and University Colleges Act and laws that restrict assemblies. These laws stifle free expression, breed fear and reject the freedoms inherent in democracy.

Fourth, allow for Parliament to operate as Parliament must. Ensure that meaningful and constructive debate over matters of public interest takes place. Ensure that deliberations over new laws is such that in the event such laws are passed, they are passed as the Constitution intended them to be passed.

Fifth, ensure that appointments to the civil service and the Judiciary are based on merit and not on ethnicity. While affirmative action may have to be taken, steps taken in furtherance of affirmative action cannot be allowed to undermine key institutions and organs of State. Only the best – irrespective of ethnicity – must lead and serve this nation. I note that there are many distinguished Malays in a variety of fields who are more than qualified. I also not that there are as many non-Malays.



Johnny Ong said...

fantastic wish list u hav there. hopefully with the feedback that they are receiving from the public, the umno-led govt wld know how to react/take action/remedy certain issues.

Anonymous said...

I was just a student during those dark years with a pro-establishment views.

It did not dawn upon me until a few years ago when I begin to read our Constituion that I realise what Mahathir has done to the Judiciary.

It doesn't matter if we have executive compliant judges, as long as the instituion of the Judiciary derive its power independent of the other organs of government there will always be independent minded judges to corect review and correct mistakes made by the Executive.

But now even if the Bench are filled with Judges of independent character, they are powerless when the Parliament enact legislation ousting judicial jurisdiction.

We will have to wait for another generation before some one has the political will and support to undo the mess.

Malaysia Post said...

Hi Imtiaz,

Going off the subject a bit, has anyone noticed that ever since the floods began last week, Astro has not been broadcasting the BBC & CNN Editions of Asia Today ?
I wonder why.

Anonymous said...


i FULLY agree with what u have said, but:

a, u r preaching to the converted.

b, there's nothing new about what u said, many have said them before.

c, every right-thinking, rights-conscious malaysian thinks n wishes for the same things, for many years (2 decades?) now. the fact is, nothing has changed. n, as u said, things have become worse.

d, has it ever crossed your mind that perhaps the reason y after our 'orang puteh' common law legal system is being abused, beaten n buggered by our politicians, they r not interested in restoring its strength, is not only out of self-interests but also bcos they r paving the way for the reception of a 'better legal system' - the syariah, the islamic law?

pas etc have long argued that the 'ease' with which our current kafir legal system is being abused by those in powers show how fragile, unsustainable n inferior the 'human (especially western)' legal system is compared to 'god's laws n system'. at the rate we r going, pak lah & co r only doing pas a big favour by paving the way for their launch of the malaysian islamic revolution.

frankly, reading what u said is like reading an idealist, first year undergrad's first class constitutional law assignment. well written, eloquent, good grasp of the law, but it doesn't BITE. it's clean, innocent, straight, nothing cynical. put it in another way: ACADEMIC.

i don't mean to belittle u, or anybody who has the same passion n idealism as u (including myself), by i would like to suggest that we HAVE LONG PAST that phase - of believing in santa claus, of WISHING that our politicians will one day wake up n decide to b a good, proper, law abiding patriot.

u can write until the cows come home, but it has come to a phase where the law can no longer 'rescue' itself, there's nothing lawyers could do THROUGH the legal system to resuscitate the dead rule of law. bcos, as u said, the foundations of the entire system have been subverted.

so, with no disrespect to lawyers n legal scholars, u can spill 2 more tonnes of ink but your ink just won't end up becoming part of the federal constitution of malaysia if all u do is write about laws, or writing in general.

m i advocating a violent rebellion here? no. but i share the sentiment of this writer:

Letter writers, do more than just write
Ahmad Akmal
Nov 30, 06 4:38pm

i agree when he said,
"you, as part of the voting public, should do more than just vent your frustrations in writing."

but i don't think the problem can simply b solved by,
"You have something no one can take away from you - the right to choose who your leaders are. The right to vote."

while i applaud what suhakam, suaram, article 11, sisters in islam n all the other ngo's r doing, i think the crucial problem lies with our weak, or lack of, strong public understanding of how democracy works properly, how democracy doesn't simply mean one person one vote n majority rule, n a strong democratic cultures, as this writer said:

Groundwork for democracy missing
Aug 2, 06 4:15pm

"It is sad, but it is time we all admit that most Malaysians do not fully appreciate or accept the fundamental values of democracy. We do not have the democratic culture which would sustain a true democracy.
Instead of championing the Constitution and the causes of human rights, perhaps the focus of our human rights activists should be in laying the groundwork - educating our children and masses on the values of democracy and minority rights, in order to build a strong and lasting cultural foundation for democracy."

i think we need at least a serious civic studies course in schools, just like how the american teach their kids about their constitution, citizenship n system of government.

however, what is suggested there is only a long term plan, n even more 'academic' than what u've said, in the true sense of the word.

but let's not forget that most malaysians r not as highly educated as u, n even a uni grad would have difficulties explaining the concept of 'rule of law'. (most of our 'uni grads' only study money-making subjects like business, accounting, marketing, engineering, pharmacy, mass comm... anyway.) then, how u expect them to appreciate y is it so important to defend the rule of law, or which particuar action taken by the government would undermine the rule of law n should b opposed?

so, u n i can write as much as we can in 2006, 2007 or until 2020, but our country will continue to deteriorate so long as most of us simply don't know what the true democratic cultures/values r, or detect what r the poisons which have been adminstered by those in power to kill our system.

at it stands now, i think most of the voters (especially those who r not civic-minded, who r plenty) can't even tell corruption when they see one (or they simply keep quiet bcos they themselves r benefitting from it??)...

Contractors RM600 mil windfall blatant corruption
Kim Quek
Dec 5, 06 4:54pm

04/12: Pak Lah, corruption is corruption!
Kim Quek

with the above, how do u expect we would become a fully democratic nation which respects the rule of law n separation of powers - overnight in 2007, or 2020 for that matter? by writing n 'wishing'????

n by the time we get the government to teach civic studies n democractic values in schools, before this new 'civi generation' grows up, the federation of malaysia would have fallen n b taken over by pas, turned into the islamic republic of malaysianistan.

so, i think we have to call a spade a spade. contrary to popular belief, we r NOT living in a democracy, n there has been no such thing as 'rule of law' here for a very long time. u n i - the urban elites who r concerned about human rights n racial, gender equality etc - r simply deluding ourselves in dreaming that we r.

that's the bleak outlook i have for malaysia for 2007, til at least 2020. (if i'm still around...)

so, the reason y we distress or "it is inevitable that the discussion becomes negative, sometimes to the point of hopelessness and futility" is probably not so much bcos "everything that is said is more usually than not true," but bcos we believe that we (the urban elite) deserve what (democracy, rule of law) most of us (majority of malaysians, especially the rural population) do not really understand or want.

(linked to my comments elsewhere at:

Anonymous said...

If my reading of both the pre-1988 and post 1988 Constitution is correct, "Syariah Compliant" laws legislated for general application are not prohibited as long as those laws are compliant with the provisions of the Constitution.

Correct me if I am wrong, there are no prohibitions in the Constitution forbidding Parliament from amemnding the Penal Code to provide for the amputation of the hand as a punsihment for theft or any other form of punishment.

The only reason why it has not happened is because of the political fallout that would ensued not to mention the country's image abroad.

I agree that it is in the realm of politics that the mess left by the Old Man can be cleaned up.

The power of the judiciary must be returned.

Anonymous said...


Anonymous said...

Juslo u still have no suggestions on what to do, except not to be violent.

So what am I supposed to do? Hawaiichee mentioned the Toll Hike. There is another this 7th a sunday. Should I ram my car into a toll plaza? Should I chain myself to the booth?

Or maybe I should travel to the kampungs and preach the importance of voting.

Yes, talk is cheap. What else is there to do? I suggest you pick 5 persons you know doesnt vote. And make sure that they do.

I have been going on to my frens about them voting in the next elections. I don't know if they are listening to us. Perhaps, you could give me some short good arguments on why they should vote. Because honestly, I dont know what to say really.

Anonymous said...

Anonymous at January 3, 2007 1:30:00 AM PST,

i also don't know what to do. if i did, u would have seen me head-hunted by the Barisan Alternative to become an advisor or even a candidate!! haha...

all i was trying to say was that 'talking academically' n 'wishing' simply won't bite.

i've advocated SPOILING YOUR VOTES (for those who r inclined to vote BN; for those who r hardcore opposition supporters, keep voting BA) instead of wasting your votes on voting BN as the 'lesser of 2 evils' (the other, worse evil, being PAS).

when u don't like how the rules of the game r being perverted, just don't play it the way that 'pervert' wants u to play it. (note - i was told u can't just choose not to vote at all, bcos they'll strip your citizenship if u have not voted for more than twice. but u need lawyers like MIS to confirm that. assuming what i heard was right, then u have to SHOW UP to vote, can't just stay at home - BUT, u can still spoil your vote.)

electoral strategy, or how to transform the country as a whole? that's a different topic for a different time i guess, but it's not really easy n there's no short term fixes. but i believe that preaching the importance of voting is a start...

n, don't forget to pray ah... :]