UPDATE: (January 21, 2016)
January 19, 2016
Ridiculously Resilient High Corruption Score: Is Malaysian Judiciary a Major Cause?
by Lim Teck Ghee
The recently released annual Corruption Perceptions Index (CPI) table for 2014 has seen us climbing three places from the previous year. While some see this as evidence of improvement, it really is nothing to shout about. Malaysia is still ranked 50th out of 175 countries compared with 2013 when we were ranked 53rd out of 177 countries.
No doubt there will be some doubters and disbelievers who will ignore this important barometer which measures the level of corruption in the public service. Hard core “nationalist” supporters of the Government, for example, will argue that the index is another example of Western or Jewish-influenced organizations trying to discredit or defame the country.
However, it is difficult to fault the organizations involved in the formulation of the CPI and the methodology used to compute the index which basically is a composite figure based on surveys done by business people from around the world, including experts and analysts working in the countries evaluated.
In fact, most Malaysians will be wondering as to why we are not ranked worse. This is especially so given the importance attached by the index to the extent public officeholders are prevented from abusing their position for private interests and if the government successfully prosecutes, penalises and prevents corruption.
For instance, they ask:-
- Are there any clear procedures and accountability governing the allocation and use of public funds?
- Are public funds misappropriated by ministers/public officials for private or political party use?
- Are there special funds for which there is no accountability?
- Are there general abuses of public resources?
All these questions are pertinent in the scandals involving 1MBD and personal “donation” into the Prime Minister’s account which have transfixed us during the last year. One wonders what the Auditor-General is doing with regard to governance, apart from earning his fat salary and related perks and the prospect of becoming a chairperson in some important GLC.
Paramount Importance of Independence of Judiciary
Of equal, if not greater, importance is the emphasis attached to an independent judiciary by the diverse organizations involved in formulating the CPI.
In view of the fundamental correlation between the level of corruption and the level of integrity and independence of the judicial system. contributors to the CPI such as the Bertelsmann Foundation Transformation Index, World Justice Project Rule of Law Index, Economist Intelligence Unit Country Risk Rating and World Executive Forum Economic Survey are asking hard questions like:
- Is there an independent judiciary with the power to try ministers and public officials for abuses?
- Are Government officials in the judicial branch misusing public office for private gain.
These are questions which newcomers to the Malaysian judicial and political arena are likely to answer favourably if they go by what they read in the official media. But if we look at informed public opinion in response to judgments in the growing number of politically and religiously skewed cases that have appeared before the Judiciary during the past two decades, there will be a different response to the question as to whether we have a truly independent judiciary.
Why is it the common perception that the Attorney General, judges, magistrates and other court officials are subject to improper influence from the Government and from private or partisan interests?
In a recent keynote address to the Judicial Service Association of Sri Lanka, Justice C.V. Wigneswaran provided an answer by pointedly emphasizing the common contributory causes which lead to judicial bias. These are:
Political pressures brought about directly or indirectly.
Desire on the part of a Judge to curry favour for his or her future prospect.
Pecuniary interest of the Judge in the subject matter of the case before him or her.
A desire to patronize any former colleague at the Bar or elsewhere.
Inherent tendency in a Judge to show favour to certain classes of cases.
Interest of the Judge in one or the other litigating parties for any reason whatsoever.
There are very few, if any Malaysian judicial officials, willing to be as forthright as Justice C.V. Wigneswaran. One important exemption has been Justice Dato’ Mohd Hishamudin Yunus.
On his retirement, in response to the question, “what is the most important foundation stone for a judiciary to mete justice in a democracy?” he provided the following answer: A truly independent Judiciary.
In 1988, then Lord President Tun Salleh Abas, who was brought before a tribunal for misconduct, and the five Supreme Court judges that granted him an interim order against the tribunal, were either sacked or suspended. Today, in cases where the Government is a defendant, respondent or claimant, can judges still decide on the law alone or do you think some might find themselves thinking “I think this is what the Government wants me to do”?
The 1988 assault on our Judiciary was a judicial nightmare, a national tragedy. With respect, I hold the opinion that the then Rt. Honourable Lord President and the five Supreme Court Judges were innocent of the charges. The late Justice Wan Sulaiman and his panel of Supreme Court Judges must forever be remembered and commended for their courage and uprightness in upholding the Rule of Law and the independence of the Judiciary; for which they paid a high price.
Yes, by now, after some 27 years since that dark episode, the Judiciary has probably recovered, but still to a very limited extent. The negative public perception against the Judiciary is still there. Indeed, as the late Tun Suffian (a former Lord President-picture above) had said many years ago in his speech in honour of the late Tan Sri Wan Sulaiman (one of the two Supreme Court judges that was unjustly dismissed in the assault of 1988) on March 10, 2000, ‘I had predicted that our Judiciary would take a whole generation to recover from the assault. Now more than 12 years have lapsed. I doubt if the Judiciary would recover in a generation from today’.
Justice C. J. Wigneswaran put it more succinctly. According to him,
Faith in the administration of justice is one of the pillars on which democratic institutions function and sustain. To establish that faith, Judges must do what is right both legally and morally. Whatever difficulties you face from outside agencies you must try your best to do what is legally and morally expected of you. For that we must require a degree of detachment and objectivity in judicial dispensation.
The worldwide launch of the 2015 CPI will be on January 27, 2016 simultaneously in over 120 countries. When the results come out in 2017, there will be few takers for the bet that Malaysia will have improved its ranking in the CPI index.