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Wednesday, September 29, 2010

Spoils Of War

(This article first appeared in The Edge in the week of 28th August this year It was my first piece for a column called 'Rule of Law')

Spoils Of War

It feels sometimes that the way things are going political forces are going to rip this country apart. Intent on their respective agendas, for better of for worse, the Barisan Nasional and the Pakatan Rakyat appear to be caught up in a “no quarter” given, fight to the death that is focused more on their survival than it is on our well being. Resources, such as they are, are being deployed more to one end than they are to the more well deserving other.

Sadly, in the Malaysia of now politics is no longer the handmaiden of democracy; it defines it. The campaign being waged around us is about the continued political subjugation of this nation. It is about control. We are not witnesses to a gladiatorial contest for sport; we are the spoils of war.

Though it is a given that in even the more mature democracies the line between government and politics is not always as broad as the ideal requires, that line nonetheless exists if only for the existence of an effective system of checks and balances centered on the separation of powers between the Executive, Legislature and the Judiciary.

The line between government and politics in Malaysia is so blurred that some might describe it as no longer being visible to the naked eye. If there were any doubts about that, it would have been put to rest by any of a number of recent events. The campaign speeches made by the Honourable Prime Minister for the recent parliamentary by-elections in Hulu Selangor and Sibu, the intensified and highly selective policing of free speech, and the resurgence of intolerance against legitimate dissent are instances of what it is that fuels the belief that the Barisan Nasional views itself as the government and vice versa. To criticise one is to condemn the other.

It is crucial for all stakeholders to recognize this as much as it is not in the interests of this nation for this state of affairs to continue. It is equally imperative that we appreciate the reasons for it and commit to addressing matters as they need to be.

We suffer the consequence of several inter-locking processes that were given life during the administration of a Prime Minister who tended to view the ends as justifying the means. I would like focus on one.

Frustrated that an interfering judiciary was impeding his vision, the Mahathir administration moved a constitutional amendment that subjugated the Judiciary to Parliament and showed the Justices that he could remove them if he saw fit. His perception of the role of the Judiciary called more for compliance rather than effectiveness. This was essential to his need for Executive control over the nation.

Perhaps recognizing that it would be impolitic to suspend the Constitution, the Mahathir administration moved amendments to key legislation that would allow for greater central control over matters of free speech and government accountability. These vested subjective discretion over matters exclusively in the Government to the extent that even the courts were precluded from questioning decisions. This allowed for a suppression of civil society and opposition efforts, and in many ways hamstrung the democratic process. This state of affairs in turn allowed the Barisan Nasional to dominate Parliament, the other bastion of check and balance. A docile Judiciary washed its hands of the mounting dilemmas by citing their lack of power. Suggestions that the constitutional and legislative amendments that neutered the Judiciary were unconstitutional were dismissed.

This need for control and the willingness to do what it took ultimately led to the decline of governance in this country. As admitted by Abdullah Badawi during his term the Judiciary was in serious need of reform.

It still is notwithstanding the efforts by our current Chief Justice to increase efficiency within the courts. That is but one heavily nuanced dimension of the issue; the public perception that the Judiciary is not competent and lacking in integrity needs to be directly addressed. Perceptions of bias or extraneous influence cannot simply be brushed aside if the Judiciary is to function as such. Public confidence is as essential to the functioning of this institution as its infrastructure; laws would have no meaning if people reject the validity of the decisions of the courts. And the truth of the matter is that they have been for some time now.

It should not matter that this may be a situation that lends itself to the advantage of the Barisan Nasional. The fact remains that a fundamental feature of our system of governance is skewed. Questions of integrity and competence on the part of the Judiciary go far beyond matters of political significance. They pertain as much to matters of finance and commerce as they do to personal matters and for doing so touch the lives of all Malaysians. Consider the number of Malaysians who suffered by reason of the decision of the Federal Court in Adorna Properties or any number of self-evidently unjust and erroneous decisions of the courts, in some cases the apex court itself.

It is not enough to say “the courts have decided” in the face of decisions that are obviously unsustainable. For us to progress, the standard and quality of justice must be high as it is consistent. This is a feature of the Singaporean judiciary that has reaped much benefit for that nation. In as much as some might say that decisions of those courts involving the Government tend to go one way than the other, their commercial decisions speak for themselves. It is no coincidence that the Privy Council not too long ago adopted the reasoning of a Singapore High Court judge in rejecting a precedent that had held sway for more than a century; it was a matter of planning. From the outset Lee Kuan Yew recognized the importance of a strong legal tradition.

The question therefore is where does that leave us in Malaysia.