Justice RCI: Just Don’t Get Hopes Up High


March 13, 2019

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Justice RCI: Just Don’t Get Hopes Up High

 

by Dr.Lim Teck Ghee

“Laws grind the poor, and rich men rule the law.” – Oliver Goldsmith

The  Government’s decision to form a Royal Commission of Inquiry (RCI) to investigate the allegations of judicial interference and misconduct made by Court of Appeal judge, Justice Datuk Dr Hamid Sultan Abu Backer, has drawn widespread approval and support, including from the Bar Council, retired judges and civil society organizations.

However the public should not have its hopes too high or expect that the RCI will end up with a reformed law system or a more independent judiciary.

The fact is that RCI’s, in whatever country when they are held, tend to be part of the ruling government’s political agenda. They also are ultimately dependent in their impact on the willingness of the government to implement whatever recommendations are arrived at by the members appointed to the RCI.

And as we have seen from the experience with the recent RCIs on Sabah’s illegal immigrant issue, the V.K. Lingam video clip case, and the Teoh Beng Hock case, despite the significant public and media attention they garnered, they ended with lots of “sound and fury”;  “signifying nothing” or little.

 

What Rules the Law?

If this is seen as being too cynical let us consider this of the legal profession which all judges are rooted in.

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Tommy Koh, the Singapore’s brilliant lawyer-diplomat

In an exchange with Tommy Koh, the Singaporean lawyer-diplomat reminded me that members of the legal profession did not comprise members of the world’s oldest profession, perhaps only second.

He may have intended it as a tongue in cheek criticism of my position on the subject. After all, law students and practitioners constantly remind us of their legal maxim: ‘Fiat justitia ruat coelum’ or ‘Let justice be done, though the heavens fall’.

Whatever anyone’s opinion of lawyers derived from personal experience, we should not forget that lawyers generally sell their services to the higher bidder; and there needs to be concern about how  unevenly tilted the scales of justice in Malaysia have become.

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Justice N H Chan

Not surprisingly, there has been little discussion of this topic though we have had a courageous whistleblower, Justice N H Chan, who called attention to the shortcomings of some of his former judicial colleagues

To him, the epitome of justice is a fair trial and this requires that the judge must do justice accordingto law – “this is what the rule of law is all about”. The judge must be fair and impartial.  At the same time, it is important that even litigants who lose should feel that they had a fair trial.

Justice Chan also felt that the public should have sufficient knowledge to enable them to judge the performance of the judges. However, even when there is public scrutiny – which rarely happens except in the most attention-grabbing of cases – it appears to be well nigh impossible to bring any one from the judiciary – from the lowest magistrate level to the highest level of federal supreme judge – to book for any abuse of power, corrupt practice or judgment or judicial behavior seen to be unfair or unjust.  

Even or Uneven Scales of Justice

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Being fair and impartial means that each and all members of the judiciary especially have to rise above the factors of class, race or religion in arriving at judgment in our multi-racial society.

Do integrity and impartiality constitute the norm or is the judiciary influenced by extraneous factors in the cases they hear?

To what extent, for example, are members of the judiciary influenced by the racial identity of the accused and/or of the lawyers in the cases they hear? Are they likely to be more lenient when sentencing members from the rich and powerful strata of society or from members of their own racial grouping? Are they biased against those from the poorer classes who do not have the services of expensive lawyers to ensure that they get a fair trial or against those from different racial or religious groups?

These and similar questions have seldom been discussed in the public realm.  Colleagues from the legal fraternity to whom these questions have been addressed, although generally agreeing that the judiciary is far from being independent or free from political influence, tell me that the scales of justice are generally evenly and fairly administered in Malaysia in terms of the influence of race and religion.

The findings in the 2018/9 Rule of Law Index conducted by the World Justice Project appear to contradict this view. This is Malaysia’s score on the following components of civil and criminal law:

Civil Justice

No discrimination                                         0.55

No corruption                                               0.66

No improper government influence             0.49

Accessibility and affordability                       0.58

Criminal Justice   

No discrimination                                           0.47

Due process of law                                        0.54

No improper government influence               0.39

Timely and effective adjudication                  0.57

What the data indicates – the index is based on over 120,000 household and 3,800 expert surveys though we do not know the details of this sampling for Malaysia – is that one of every two cases of civil and criminal justice in the country is tainted by discriminatory or corrupt action by the law enforcement agencies, including the judiciary.

Can the RCI Open The Pandora’s Box?

Public attention shortly will be focused on the case of judicial misconduct and interference in government.

However in a robust democracy, it is equally if not more important, to ensure that the rule of law – as experienced in practical, everyday situations by ordinary people – is subject to scrutiny and reform so that it is fair and impartial in all aspects.  

A good example of such public examination is that recently conducted by British Columbia in its 2012 Justice Reform Initiative which resulted in a white paper and road map for justice reform.

 

We are sorely in need of such an initiative or minimally a public discussion in the coming RCI on this ignored and neglected aspect of the rule of law.

 

Harapan entering a grey area, a year before 2020


December 26, 2018

Harapan entering a grey area, a year before 2020

 

 

Opinion  |  by Phar Kim Beng

COMMENT | As I write this, Malaysia, as governed by Pakatan Harapan, is entering both a festive occasion – marked by Christmas and the New Year – and a festering one too. There are five telltale signs of the latter:

  • The tragic death of firefighter Muhammad Adib Mohd Kassim in the Seafield temple riots.
  • The 55,000 who gathered in Kuala Lumpur for the rally against the International Convention on the Elimination of All Forms of Racial Discrimination (Icerd).
  • Authorities seemingly forgetting about M Indira Gandhi’s missing daughter, and about Teoh Beng Hock’s death nearly ten years ago.
  • Close to 15 percent of Malaysia’ population will be above 60 years of age by 2023.
  • About 38,000 Felda settlers getting cost of living aid  and deposits for replanting.

In any one of the above, Harapan has at best either been silent, or belatedly proactive. Meanwhile, the world continues to change in five ways:

  • US President Donald Trump deciding on two simultaneous withdrawals from Syria and Afghanistan, signalling the end of American presence in two of the most conflict-prone regions in the world.
  • Russia staying quiet on the pullout of American troops, although this strategic withdrawal is akin to the collapse of the Berlin Wall.
  • Islamic State and the Taliban also staying quiet, suggesting a deeper motivation to push deeper into the Western world, or perhaps Asia, to wreak more havoc;
  • China’s One Belt, One Road initiative, which appeared to be all but irreversible, has been challenged by the Quad (United States, Japan, Australia and India).
  • Japan, one of the key powers in the Indo-Pacific region, continuing to shrink in terms of population, thus further heightening its insecurity.

These are dangerous times. There are some quaint parallels: the elan of the Vietnam War, when Communist forces pushed forward from the north to south in 1975; the fall of Kabul in 1989; the Russian incursion in Georgia in 2008; and the slow but organic militarisation of South China Sea from 2011 onwards when China, for the first time, referred to the area as its “core interest,” a term previously only reserved for Taiwan and Tibet.

But there is no telling if Harapan is aware of the whiplash effects of these world events. Political scientist Arthur Stein once warned of the importance of “relative gains” in international relations, wherein all great powers see gains and losses in zero-sum terms.

Granted, Malaysia has a foreign and defence policy that seems to be geared towards the centrality of ASEAN. But there is no telling if it wants to adjust to a post-US-Japanese world and the emerging Sino-Russian world order.

East Asia is entering this post-US-Japanese world. The US had always made it a point to keep Tokyo informed of any dramatic moves.

But now, at the speed of a tweet, Trump proceeded to announce the withdrawal of the US from the theater of the Middle East and South Asia, without notifying its staunchest East Asian allies Japan and South Korea.

Japan got its first taste of the ‘Nixon shock’ when the then-US president announced his plan to visit China in 1971, before Nixon announced his New Economic Programme, which included abandoning the gold standard.

The country would be shocked again when it received no thanks from Sabah Al-Ahmad Al-Jaber Al-Sabah of Kuwait for its financial contribution to Operation Desert Storm led by then-president George Bush.

What Trump did in recent weeks must constitute a third shock for Japan – a major ally pulling out of two regions at the same time, even with the opposition of outgoing Secretary of Defense James Mattis.

By pulling out of Syria and Afghanistan, Japan must be reeling from the fear that its security relationship with Washington can be subject to the same forces that catapulted Trump to power – populism and the American far right.

China and Russia must also be smiling in glee, with the American admission of the impossibility of conducting simultaneous conflicts in two regions.

Malaysia is entering a world of uncertain geopolitical realities and flux.

What adds to the instability is the fact that it is ruled by a new coalition of four parties now beset by infighting – and one still due for a possibly messy transition at the top.

Prime Minister Dr Mahathir Mohamad still looks set to hands over the reins to Anwar Ibrahim, although there are signs that things are less than rosy behind the scenes – such as when the daughter of the latter quit her posts in government.

The new year seems likely to put Malaysia in a pinch as it looks ahead to 2020.


PHAR KIM BENG is a multiple award-winning head teaching fellow on China and the Cultural Revolution at Harvard University.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.