September 14, 2009
The Rule of Law and Judicial Independence
by Dato’ Seri Anwar Ibrahim*
Today I would like to share with you some thoughts about a subject which I believe is close to our hearts. Not just to politicians, lawyers or social workers, but to every member of society. It is so close that without it the very foundation of a free and democratic society crumbles. It is called the Rule of Law.
According to Friedrich August von Hayek (author of The Road to Serfdom), this means that government in all its actions is bound by rules fixed and announced beforehand which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge. That definition is indeed a powerful formulation of the concept but I would hasten to add a major rider to it, which is that the coercive powers referred to must predicated on the basis that the laws in the first place must meet the criterion of justness. Hence the rule of law means that the exercise of publicly justifiable power.
I emphasise the phrase ‘publicly justifiable power’ because not every law that comes out of Parliament is publicly justifiable. In other words, the rule of law requires the application of moral standard to legislative output. And this is because every individual possesses rights founded on justice which are inviolable. The positivity of law is not sufficient to establish its lawfulness. If laws are unjust then the rule of law itself is in jeopardy (see John Rawls, Theory of Justice).
The Internal Security Act (ISA) is a classic instance of this injustice. It offends against human dignity and it violated our fundamental rights, But it still continues to be arbitrarily used against those seen as possible threats to the ruling elite. We have a written constitution which guarantees our liberties including freedom from arbitrary arrest.
Yet the use of the ISA to silence political dissent makes a mockery of this guarantee. Just two months ago, we witnessed one of the largest manifestations of the people’s opposition to this draconian law, but tragically,the UMNO-controlled agencies responded with eve greater use of tyranny and oppression.
So among the paramount characteristics of the rule of law concerns the judiciary. In this regard, judges must exercise their powers in accordance with the rule of law and not the rule of men. Translated into the real world, this means the judiciary must not be accountable to the Prime Minister. If the rule of law is to mean anything, one of the most essential prerequisites is that the judiciary must be independent.
We saw back in 1988 how the institution was dealt a fatal blow by the powers that be then and we saw in 1998 how it was not just me who was given a black eye, but the judiciary itself, thanks to the perverse decisions of two High Court judges then. These are the same judges who now warm the seats our Appellate courts, enjoying the fruits of their perversity, as it were. Is then any wonder that today history is again repeating itself.
We would have thought that the lessons of March 8, 2008 would have taught the political masters some fundamental truths regarding the legitimate expectations of the people, one of which is that the people do not want to see the judicial process turned into a circus. We are tired of seeing judges as mere puppets dancing to the tune of the political masters.
The latest instance of this judicial aberration can be seen in the decision just last week in respect of the suit filed by the legitimate Pakatan speaker over the Perak debacle on May 7, 2009. The court held that in accordance with Article 72 of the Federal Constitution,” the validity of any proceeding in any state assembly cannot be questioned in any court”. Well, that indeed sounds very impressive and laudable in the context of respecting the concept of the separation of powers. But then why is it that in the same breath the court also held that the legislative assembly’s decision to remove the speaker and to appoint someone else was conclusive and had been fairly determined by the state assembly?
I have heard of some judges making wrong decisions based on a misinterpretation of the law, but I do not recall judges blowing hot and blowing cold in the same judgment. In coming to this conclusion, we may say that the court has sunk into the abyss of judicial reasoning displaying in the process clear symptoms of judicial schizophrenia. The question now is not whether we should challenge such a decision. Indeed we must, but I believe even more importantly, there is a moral duty to speak out against such a gross travesty of justice.
In practical terms, judicial independence must mean protecting citizens against illegitimate usurpation of power. Indeed, the travesty of justice that continues to plague us in the Perak debacle remains a stark reminder that the separation of powers envisaged in a democracy remains largely a mirage in the constitutional landscape.
The topic of our gathering this evening is the launch of this important book and recognition of its author, a dear friend of mine, Pawanchik Marican. It is of course rare to find in today’s Malaysia such a comprehensive account of an event so controversial in our nation’s history. Applying no varnish to the entire sordid affair I believe this text will be a signpost for generations of Malaysians on the dangers of absolute power. He has also paid a great tribute to the legal team that defended not just me but an enitre nation against the onslaught of executive power run amuck. For those present and absent who had a hand in the trial and particularly the lawyers, words the deep gratitude that I, Azizah and my family have for their work–which I might add is not yet done.
Now with reference to the trials prosecuted against me, as so well documented in Pawanchik’s book, suffice it to say that the judges were essentially under the thumb of the Executive. There is a saying that when the law is subjugated to the chicanery of politics, that is, where the judges are subservient to the political masters, the administration of justice becomes both farcical and perverse.
In a real democracy, the use of judicial high-handedness to bring down a political opponent would not be tolerated because of the existence of a transparent court system and a process of accountability. In a sham democracy, however, judicial high-handedness is given free rein and transparency is irrelevant. Those prosecuted for political reasons are thus condemned even before the trial begins. It is not just about me or some of our friends here today.
There are now a few other high profile cases pending. For example, the persecution of Raja Petra Kamaruddin will certainly be top on the list of the study on the breakdown of the rule of law. I emphasise the word ‘persecution’ because the manner in which he is being hounded is no longer prosecution but sheer audacious use of blatant state powers in order to bring down one of the government’s most strident and vocal critics. These actions violate the dignity and honour of all Malaysians.
In stead of being the ultimate guardian of our liberty from executive tyranny, the judiciary is then transformed into principals in the destruction of the very process it was entrusted to protect. Indeed, the undermining of judicial independence by political interference has negative repercussions not only on society at large but on the nation as a whole.
Very often the inability assert independence seems to be inversely proportional to the degree of integrity. Judges must display competence and expertise and they must be above suspicion. We are by now very familiar with the video tape of the “correct, correct, correct” judicial scandal but have seen any action yet? And where judges are not seen to be absolutely above board, the establishment of equity and fair play in commercial and economic deliberations will be largely illusory. This would also explain why Malaysia continues to occupy dismal positions in the corruption index, not to mention how much further we have sunk in competitiveness.
Another crucial criterion for the rule of law is that the discretion of law enforcement agencies must not be allowed to pervert the cause of justice (See Joseph Raz, The Authority of Law–Essays on Law and Morality). We know that not only the judiciary but the Police and the Attorney General’s Office play essential roles in the preservation of the rule of law failing which they are easily used to pervert the law.
Selective prosecution, police high-handedness and arbitrary arrests, and now of course the actions of the Malaysian Anti-Corruption Commission (MACC), all collectively pervert the cause of justice rather than uphold the rule of law. And in all these, the ruling UMNO government is not only complicit but also blatantly instrumental in perpetuating these gross transgressions.
The upshot is harassment, oppression and in most cases, the extermination of the small fry while the large predators continue to roam free. The Pakatan controlled government of Selangor will remain a classic case study of the systematic abuse by Federal law enforcement agencies under the thumb of the ruling Federal elite.
The arrogance of power has rendered them completely impermeable to public opinion. The extension of the Inspector General of Police’s contract just last week flies in the face of the overwhelming chorus of objections from the people. The increasing incidents of custodial deaths and the blatant bias of the MACC in carrying out its duties are but two examples of this breakdown in the rule of law.
The very route of this problem goes to the question of accountability. We have seen what it is like. Without accountability these agencies literally get away with murder. They are certainly getting away with corruption. The instances are too many to enumerate but it would be accurate to say that the amounts involved get bigger by the year. We know about the billions earmarked for the stimulus packages but where has the money gone? How much longer can we allow public financial resources to be used in complete disregard of the rules of accountability.
The proper application of the rule of law would have meant that those who occupy the seats of power must be subject to scrutiny and held accountable for their misdeeds. They must realise that power and authority are but duty and obligation and not right and privilege. Will they ever be brought to justice?
In the final analysis, the idea of justice to man is so central to the rule of law that you cannot have one without the other. Corruption and the abuse of public office, the absence of transparency in financial and other dealings, the perversion of justice by the law enforcement agencies and the dereliction of judicial duty–these are indeed characteristics of the rule of men, and not the rule of law. The trappings of democracy cannot mask this perversion.
Reform is way overdue but on the eve of our Malaysia Day celebrations let us renew our commitment to freedom and to justice.
*Speech at the launching of Pawanchik Marican’s ANWAR ON TRIAL–IN THE FACE OF INJUSTICE at the De Palma Hotel, Ampang, Kuala Lumpur, on September 14, 2009
Now about ANWAR ON TRIAL: In the Face of Injustice (ISBN: 9789834479329), Publisher: Gerakbudaya Enterprise, Kuala Lumpur. Year: 2009
The Anwar Ibrahim trials during the late nineties left the landscape of Malaysia’s judiciary forever changed. Convicted to a six-year prison term on charges that many believe to have been trumped-up, Anwar has become the symbol of a new generation of Malaysians determined to seek truth and justice.
ANWAR ON TRIAL: In the Face of Injustice gives readers a cogent look into the detailed workings of the 1998/1999 corruption trial of Anwar Ibrahim. Captured through the lens of a lawyer who was present throughout the proceedings, the book presents a first-hand account of the goings-on in court and outside it.
Pawancheek Marican examines the way that the Malaysian judiciary was systematically emasculated and turned into a pawn of the executive, the consequences of which will linger for many decades to come. From the trial judge who forbade Anwar to argue his defence of conspiracy to the questionable role of the Attorney-General’s Chambers, the book lays bare the political machinations taking place behind the scenes by those in power to remain in power.
The information contained within this book comes at an opportune moment as Anwar Ibrahim faces yet another sodomy trial in 2009 – this time, however, from the freedom of his own home and as the Opposition Leader and Member of Parliament for Permatang Pauh in Penang.