All The King's Men...

All The King's Men...

I wonder what it means for the future of this country that Datuk Mukhriz Mahathir, a current UMNO favourite son and most certainly one whom the dizzying heights beckons, has taken the view that matters pertaining to the reform of the Judiciary are not a priority. As was reported in an article in The Sunday Star, the Honourable Member of Parliament for Jerlun questioned the need for judicial reform. He claimed that Malaysia would not crumble without these reforms and, in any event, they did not benefit the Malays or UMNO.

I would have thought that the question of whether the Judiciary and the wider system of justice are in need of reform is moot. Even without the acknowledgment by the Government earlier this year that steps had to be taken to restore confidence in the Judiciary, it is glaringly apparent that all is not as it should be. Standards of judicial competence are worryingly low as is public certainty of the integrity of the judicial process. This latter aspect is no longer a matter of speculation, delusion or political spin; the conclusions and recommendations of the Royal Commission of Enquiry on the VK Lingam video made things explicitly clear: things need to be sorted out.

Matters of judicial competence and integrity impact across the board; they are neither race nor political-party specific. Bad or skewed decisions hurt the wider legal profession and the nation as a whole as much as the litigants involved. One of the biggest difficulties practicing law at the present is the lack of certainty in the law, in part for there being a slew of decisions that have been adjudged without due regard to principle or precedent. In becoming precedents themselves, these decisions have undermined the foundations of not only the legal system but also the system of commerce that it supports. Commerce being wholly dependent on the certainty that only an effectively functioning legal system can provide, the current state of affairs is anathema.

It is for this reason that when entering contracts pertaining to Malaysia, many a commercial party now take pains to stipulate that the law of the contract is not Malaysian law and that dispute resolution is to take place outside the country. That is a cause for great concern, one that we have ignored for far too long to our own detriment. A weak system of justice does no favours for the country in which it exists; it is a sure path to failure for driving investment away, much as we are currently experiencing.

Is this not a matter that affects the Malays and UMNO as much as the rest of us?

This is not just a matter of our all being Malaysians and having a common future. Malays are as much litigants before the courts as any other Malaysian. They are as involved in business and corporate deals as much as the next person is, even more some would say. A cursory perusal of the law journals would show just how far, just as they would the fact that they accuse, or are being accused, of cheating and breaching duties, or murder, rape or theft, just like anyone else. UMNO itself is capable of being dragged into court just like any other society and has in fact been there before.

Surely a stronger, independent and more competent Judiciary would benefit these quarters, as much as they would everyone else? After all, justice is supposed to be blind.

I think Datuk Mukhriz Mahathir has much to offer this nation, in parliament and outside it. His reasoning in this instance is however sorely misconceived. The said article suggests that he has formed the view that the reforms are an expression of anti-Mahathirism, notably that of Datuk Zaid Ibrahim. Though I will not speak for the former Minister in charge of legal affairs, he is more than capable of doing that for himself, I will say that the potential UMNO Youth Chief may have mistakenly confused an articulation of the need for reform with a personal attack on Tun Mahathir.

The call for reform started long before Datuk Zaid Ibrahim made headway in UMNO. It was prompted by the serious consequences of the 1988 attack on the Judiciary and the Rule of Law. Many in one form or the other, including the Judiciary itself and great legal luminaries such as His Royal Highness Sultan Azlan Shah, have taken it up. Their message is clear; something needs to be done.

The Malaysian Judiciary was once respected throughout the Commonwealth, it no longer is. Its foundations have suffered a beating from the shockwaves that emanated from the events of 1988. The testimony at the Lingam Commission hearings showed how much they still reverberate and, for that, how precarious the position of the institution is.

Is it in danger of collapsing, taking the nation along with it? Only time will tell. The question for us all, Datuk Mukhriz included, is whether we want to wait to find out.

(Malay Mail; 14th October 2008)

MIS

Reforms?

In my post 'The Politics Of Compromise' I questioned the levels of the Barisan government's commitment to judicial reform. The New Straits Times ran a report yesterday (Najib: Lingam report decision still pending) which included a reference to Mukhriz Mahathir (who's views I will take as representing some quarters in UMNO) as follows:

"On judicial reforms which Abdullah proposed in April, Mukhriz said: "Reforms are good but I also need to be convinced that the judicial reforms will make us win the next election, because I don't see how reforms will bring back confidence to Barisan Nasional."

"If we don't solve issues like rising oil and consumer goods prices, I don't think we'll win the elections."

MIS

The Politics Of Compromise

Any reform of an institution or an institutional nature will require political will. As we have learnt, the Barisan Nasional federal government is impervious to public opinion. Were it otherwise, we would not have heard the kind of rhetoric we did these past few years and that we continue to hear. Like all bullies, the Barisan responds to aggression and power. Until March 8th, when Malaysians coalesced into the phalanx that drove the Barisan out of five states and denied it the traditional two-thirds majority it had become accustomed to, there was no power that could match that of the Barisan. Safe in its control of key institutions and agencies, it had sat back and thumbed its nose at everyone else.

The slap it received on March 8th made the Barisan reel. But even as it took one, maybe two, steps back, it quickly steadied itself and clung to whatever it could, notably government. And despite seeming efforts to bridge the gap between it and Malaysians through the trumpeting of the need for reforms, the Barisan has thus far governed pretty much as it had prior to March 8th. We have in the short time since the elections heard about threats to racial harmony, seen the race and religious card played, heard the usual excuses over non-performance and, as expected, heard of how the opposition is the cause of all ills in the nation. Business, as such, is pretty much as usual, perhaps more so for the fact that the internal power struggle in UMNO is eclipsing all else on the list of priorities. Governance, it would seem, has once again fallen second to politics.

In this climate, it is apparent that Malaysians can only reasonably expect to see reforms where these reforms intersect with the political agenda of key players within UMNO. For all purposes and intents, more so than before in light of their dismal performance at the polls, the MCA and the MIC are largely irrelevant.

This setting makes me wonder how to perceive these wonderful promises of judicial reform. I know Zaid Ibrahim and I think he is doing a good job at trying to push for reforms. His efforts strike me as being sincere and aimed more at nation building than politics. If he were the only factor in the mix, I would be heartened and would view the situation optimistically.

However, Zaid is not the only factor nor he is the only player. Neither is the Prime Minister, assuming that he is solidly behind the push for reform. There are those on the cabinet who, in many ways, represent the old guard and for that reason alone may choose to oppose any measure involving acknowledgments of wrongdoing, tacit or otherwise. I note the Deputy Prime Minister’s emphatic rejection of the suggestion that the gesture made by the Government to those judges who were victimized in 1988, was not, repeat, not an apology. This refutation is manifestly inconsistent with Prime Minister’s declaration of a need to make amends. This and the presence on the cabinet of other senior UMNO members who may be nervous about crossing Tun Mahathir, who in these politically treacherous times is now openly acknowledged as being the principal cause of the downfall of the Judiciary, hints worryingly at the possibility that the reform proposals may not gain traction.

The ex-gratia payment and the speech delivered by the Prime Minister fell short of the full vindication that the affected judges, so well versed in the parceling of fault, are deserving off. The payment and speech go someway to beginning a necessary process of truth and reconciliation not only the victims of 1988 but for the Judiciary and the nation. We must credit Zaid and the Prime Minister for that.

Having said that, it must be recognized however that no matter how we characterize the gesture, it in itself does not go far in reforming the Judiciary. Zaid had declared that there were three key aspects to the reform package he was offering Malaysia; the apology, the establishment of a judicial appointments commission and reinstating Article 121(1) of the Federal Constitution to ensure the separation of powers. Of the three, as thing stand, only the first has to an extent become a reality.

The Prime Minister’s declaration that the government proposes the establishment of a judicial appointments commission does not quite hit the mark where the second is concerned, in part because it is for the government to take steps and not to propose. His explanation that this will involve some time as the process has to be worked out is not reassuring in light of the split in ranks within the cabinet. The Prime Minister had in 2005 similarly reassured Malaysians that the IPCMC would be established. We have yet to see it, largely due to resistance from within. The establishment of the National Human Rights Commission (SUHAKAM) took some seven years. If that is what is meant when the Prime Minister says that the process will take time, I am not inspired. I do not know whether Malaysia can take another seven years of the Judiciary in its current state.

The avoidance of any discussion of Article 121(1) in the speech is similarly worrying. The reinstatement of the article as it was prior to 1988 is a crucial step in re-entrenching the separation of powers and re-establishing the judiciary as a bulwark against totalitarian arbitrariness. The Barisan government has time and time again shown us why Malaysians cannot afford to lose the right to seek judicial review. We are largely where we are because the courts felt themselves unable to intervene or, if permitted, were unwilling. The absence of any reference to this key aspect of the discussion further undermines my belief that the Government will actually take concrete steps forward.

Seen from this perspective, it is glaringly evident that the nation is currently caught up in a huge public relations exercise that the Barisan has hinged on the promise of judicial reforms. The public relation campaign does not necessarily of itself lead to the implementation of reforms.

It is for this reason that civil society must keep on pressuring the Government to act and to act decisively. The Pakatan Rakyat should consider tabling a private members bill for the establishment of an adequately empowered judicial appointments commission. All possible avenues to create awareness and force accountability must be explored. The battle has not been won, it has just begun.

Which is why I find the overwhelmingly supportive reaction of the Malaysian Bar somewhat surprising. The Bar has always been at the vanguard of rule of law issues. It has been steadfast in its condemnation of the events of 1988 and the subsequent decline in the quality and integrity of the Judiciary. Nothing less than a full apology and a reinstatement of all benefits of the judges who were wrongly attacked should have warranted the standing ovation given to the Prime Minister. But there was a standing ovation, and that at a dinner hosted by the Bar but paid for by the Government, something I never thought I would see in my lifetime as a lawyer.

The Bar needs to be wary of accommodating, or being perceived as accommodating, the politics of the Executive. It is however veering dangerously close to doing just that and compromising itself in a manner that will rob it of its credibility.

When, and if, the proposal for a judicial appointments commission comes to fruition, the Bar will be the primary voice of civil society to ensure that the commission is established as it should be. In all likelihood, the appointments mechanism will not satisfy the criteria of an independent appointments commission. At that point in time, the Bar must ensure that it is in a position to live up to its responsibilities. Positions it takes now will limit its freedom to react appropriately. Regrettably, the extent of support shown to the Government, from the hosting of the dinner to the adulatory speeches, may have already had their impact.

Commending the Prime Minister for the step taken was the proper thing to do, but to offer, as the media reports suggest, congratulations for the loosening up of controls over the freedom of expression, is to ignore the very real and very painful suppression of the numerous demonstrations of 2007 by force. The shots fired in Pantai Batu Burok still ring out, as do the cries of peaceful marchers and demonstrators as they were tear gassed and attacked with water cannons. The Prime Minister was responsible for all that and more.

I appreciate that activism will require tactical concessions. I also understand that it is better to seize what gains one can when one can rather than not making any progress at all. However, gains should not be taken at the risk of principle. The rule of law cannot be built on compromise.

MIS

Of Judges And Contempt

A quotable quote. The excerpt below is from the speech of the then Perdana Menteri, Dato’ Seri Dr Mahathir, on 23rd June 1989 in Parliament when moving the amendment bill that would introduce the now notorious section 8B of the Internal Security Act. This section denies the right to judicial review (except on procedure) and to that end has allowed for arbitrary detention at the discretion of the Home Minister.

Significantly, this amendment was moved after Operasi Lalang during which there were numerous, some successful, high profile applications for judicial review. This included that of Mr Karpal Singh. Some of these decisions led, in part, to the 1988 attack on the judiciary.

The language of the speech is reflective of the views of Dr Mahathir that appeared in the media at the time. One of these articles, an interview that appeared in the 24th November 1986 edition of TIME magazine, is worth reproducing. Dr Mahathir was quoted as saying:

"On the Courts. The judiciary says (to us), `Although you passed a law with a certain thing in mind, we think that your mind is wrong, and we want to give our own interpretation.' If we disagree, the Courts will say, `We will interpret your disagreement'. If we go along, we are going to lose our power of legislation. We know exactly what we want to do, but once we do it, it is interpreted in a different way, and we have no means to reinterpret it our way. If we find out that a Court always throws us out on its own interpretation, if it interprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish."

YB Lim Kit Siang took exception and applied to the High Court for an order of contempt against Dr Mahathir on the basis that the statement, in particular “We will interpret your disagreement”, scandalised the Judiciary by bringing in into disrespect and disrepute. At the High Court, Justice Harun Hashim had this to say:

“The Court should not be over-sensitive to criticism. The impugned statement, read objectively, is not even a criticism of the Court far less scandalising it or a threat to the independence of the judiciary. In essence it is the despair of a Prime Minister on the inadequacies of the law and more particularly the officials whose duties are to translate into law the policies and aims of the administration to ensure a more effective government.”

Eight days later, on 11th December 1986, the then Supreme Court affirmed the decision of the High Court. Tun Salleh Abas, Lord President (as he then was), somewhat prophetically, had this to say:

“…the impugned remarks do not ex necessitate connote, with in the requisite of the strictest burden of proof for proceedings for contempt, an attack on the judiciary in the way suggested by the applicant but rather tend to ventilate, perhaps understandably, the vexation of the executive in not being able to get through some desired objective or end without curial intervention.”

Vexation was a gross understatement. Not too long later, a series of events led to the notorious nation wide ISA crackdown and the sacking of Tun Salleh Abas and two senior supreme court justices. These events would herald the commencement of a new chapter for not only Malaysia but also the Judiciary, one that would culminate in “correct, correct, correct, correct” becoming a favourite ring tone.

This is what Dr Mahathir had to say in Parliament (an excerpt):

“Tujuan utama pindaan-pindaan ini dicadangkan adalah untuk menentukan bahawa perintah tahanan yang dibuat oleh Menteri yang memutuskan bahawa seseorang itu mengancam keselamatan Negara tidak dipersoalkan di mahkamah. Ini adalah kerana kebelakangan ini keputusan Menteri mengeluarkan Perintah Tahanan telah kerapkali dicabar dan dipersoalkan di mahkamah. Sekiranya mahkamah dibiar menggantikan keputusan pihak Kerajaan dengan keputusan mahkamah, ini bermakna seolah-olah tanggungjawab bagi keselamatan negara tidak lagi terletak kepada Kerajaan tetapi sebaliknya telah dipertanggungjawabkan kepada mahkamah, yang sebenarnya bukanlah ahli dan pakar dalam bidang keselamatan. Keputusan-keputusan dan aliran mahkamah di negara-negara asing yang memainkan peranan campurtangan atau, dengan izin, “interventionist” menggantikan keputusan-keputusan mahkamah adalah tidak sesuai diikuti kerana ia bertentangan dengan konsep perasingan kuasa atau dengan izin, “separation of powers” antara eksekutif dan kehakiman yang menjadi pegangan kita di negara ini. Jika mahkamah boleh menukar atau dengan izin “reverse” keputusan eksekutif, maka pihak eksekutif tidak akan dapat membuat apa-apa keputusan kerana khuatir mahkamah akan menukarkan keputusan itu. Dengan itu pihak pemerintah tidak dapat bergerak kerana menunggu keputusan-keputusan mahkamah serta rayuan-rayuan kepada mahkamah yang lebih tinggi.”

***

Everyone, even judges, need to heal from hurt.

It is time to start the process of reconciliation. Apologising to Tun Salleh Abas, Dato' George Seah and the late Tan Sri Wan Sulaiman and to the other judges who were suspended, and their families, is a necessary start to a crucial process.

MIS