Legalculture

The importance of public confidence in the judiciary, specifically belief that it applies the law neutrally against the government and is not afraid of making unpopular decisions against powerful interests, cannot be underestimated since it underpins the rule of law itself.

The concept of the rule of law in Malaysia is examined first in this section, followed by an account of several events which have considerably eroded public confidence in the country's judiciary. The rule of law is weak in Malaysia, and it remains to be seen whether the judiciary is able to restore itself to its former glory.

6.1 Ruleoflaw

It must be recognised at the outset that the meaning of the �rule of law' is itself controversial. According to Dicey, the rule of law means:

The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government.^[639]

The International Commission of Jurists (ICJ) clarified the notion of the rule of law as comprising the following elements:

First, that the individual is possessed of certain rights and freedoms and that he is entitled to protection of these rights and freedoms by the State; second, that there is an absolute need for an independent judiciary and bar as well as for effective machinery for the protection offundamental rights andfreedoms; and third, that the establishment of social, economic and cultural conditions would permit men to live in dignity and to fulfil their legitimate aspirations.^[640] [emphasis added]

More recently, Justice Khanna of the Supreme Court of India defined three requisites for the rule of law to exist:

If there are three prime requisites for the rule of law, they are a strong bar, an inde­pendentjudiciary and an enlightened public opinion.

Although the basic notion of the rule of law was fostered in Malaysia via the adoption of a Westminster form of government, and the phrase was stamped onto public consciousness when it was included as one of the five key principles constituting the pillars of the nation (Rukunegara),^[642] the understanding of the rule of law in Malaysia, at least by the executive, varies significantly from the above formulations. As Dr Rais Yatim has explained:

The Rule of Law in the Rukunegara does not necessarily mean the same as the rule of law as conceived by Dicey or the various ICJ congresses. It is not particularly concerned with the checks and balances necessary in the popular notion under a modern democratic system. It was proclaimed to mean no more than that the rules and regulations made by the government must be followed.^[643] [emphasis added]

It has even been suggested that rule of law has been confused with rule by law in Malaysia.^[644] By extension, it maybe inferred that the strength of the rule of law in Malaysia is weak because it is seen as a competing, rather than a fundamental or absolute, norm.^[645] To this end, while the Federal Constitution embodies the rule of law and the separation of powers, it also contains broad exceptions to these principles. As Dr Harold Crouch has put it, Malaysia is a country �whose sig­nificant democratic and authoritarian characteristics are inextricably mixed.'^[646] Consequently, the rule of law is constantly engaged in a tussle with authoritar­ianism, which is attractive to a Government which places greater emphasis on governmental stability.^[647]

6.2 The judiciary - a series of convulsions

Each organ of state must function within its own sphere and not trespass on the others.

-Tun Hussein Onn, Malaysia’s third Prime Minister, speaking at the opening of the 10th Lawasia Conference held in Kuala Lumpur in 1987

An independent Judiciary that is not subservient to the Legislature or the Executive, either in theory or practice, is often regarded as the bastion of Parliamentary Democracy. That bastion is under siege today.²⁰⁴

- C Muzaffar

Public confidence in the administration of justice plays a crucial role in maintain­ing the rule of law; if the people believe that the courts are impotent in preventing misconduct by the executive, the rule of law is undermined.²⁰⁵ A corollary of this is that the rule of law cannot prevail without guaranteeing the law’s principal actors (judges, lawyers and legal academics) a high measure of independence of mind and action.

Judicial independence encompasses both institutional and individual aspects.²⁰⁶ As an institution, the judiciary must be acknowledged as a sepa­rate and independent branch of government. Within the judiciary, each judge must be free to perform his or her duty in an independent and impartial manner. This requires freedom from any external influences which may affect the capacity of a judge to decide the case on its legal merits per se. It is the sure knowledge in this that gives the people confidence in the judiciary.²⁰⁷ More importantly, judicial independence ensures that the government is bound by the law just as everyone else, a fundamental principle of free society.²⁰⁸

Given that the judiciary is the weakest arm of government, with â€?neither the sword nor the purse’,²⁰⁹ great vigilance is needed to safeguard its strength as an institution.

The executive’s taming of the Malaysian courts

During the first 30 years after Independence, the Malaysianjudiciary enjoyed a much exalted position in the country and was vested with public confidence. Relations with the Asian Law Executive and the Bar were also good. Dato S M Yong, when Chairman of the Malaysian Bar Council in 1963, had this to say about the judiciary:

203 Cited in Tunku Sofiah Jewa, Public International Law - A Malaysian Perspective, vol. 1, Pacifica Publica­tions, Kuala Lumpur, 1996, p. 523.

204 Cited in H P Lee, Constitutional Conflicts in Contemporary Malaysia, Oxford University Press, Kuala Lumpur, 1995, p. 43.

205 Wu Min Aun, �The Malaysian Judiciary: Erosion of Confidence’, Australian Journal ofAsian Law, vol. 1, no. 2, 1999, p. 124, para 134.

206 The Hon Justice Michael Kirby, op. cit.

207 Tunku Sofiah Jewa, op. cit., p. 524.

208 Wu Min Aun, PublicLaw in ContemporaryMalaysia, Longman, Kuala Lumpur, 1999, p. 85.

209 The Hon Mrs Justice Susan Denham, �The Diamond in a Democracy: An Independent, Accountable Judiciary’, TheJudicialReview, vol. 5, 2001, p. 31, para 45.

We are all familiar with the concept ofthe Rule of Law. We all know that to have justice, we musthave an impartial, incorruptible, and independentjudiciary. OurFederalCourt is such a judiciary.^[648]

In 1975 Prime Minister Tun Abdul Razak declared with pride:

In Malaysia, the judiciary is respected by all including the Government... and the doctrine of dispensation of justice without fear or favour is an accepted thing. And although so many changes have taken place in this country, nothing has happened to undermine public confidence in the judiciary.^[649]

Regrettably, the rule of law has been considerably weakened by several events concerning the judiciary.

Public confidence in the Judiciary has been seriously eroded and it will take a whole generation before the damage done can be remedied.^[651]

Many of the problems plaguing the judiciary can be traced to executive interference.^[652] Under the first three Prime Ministers, all legally trained, the executive, legislature and judiciary appeared to have had a good understanding of their respective roles, and due respect for one another. However, public con­fidence in the judiciary underwent dramatic slips under the premiership of the fourth Prime Minister (PM), Tun Dr Mahathir Mohamad,^[653] a doctor by training, who was often irritated by the conventions in which the Westminster system of government operates.

Dr Crouch has attributed PM Mahathir’s irritation to a lack of understanding of legal tradition and the proper role of the judiciary.^[654] In 1986 and 1987 the bal­ance of power between the judiciary and the executive emerged as an issue when the courts delivered a series of judgments unfavourable to the Government.^[655] PM Mahathir expressed his irritation by publicly chiding the judiciary over the decisions:

Thejudiciary 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 interpretation.’^[656]

Indeed, PM Mahathir had constantly argued that his elected government pos­sessed the majority’s mandate to govern and courts should not use unwritten rules to undermine its ability to do so; he interpreted decisions of the courts as unwarranted infringements of executive power that thwarted the will of the majority.^[657] Such a view is unfortunate for it undermines the very doctrine of the separation of powers.

His dogmatic approach, simplistic in conception and often authoritarian in enforce­ment, runs counter to the traditional system of checks and balances on which the Federal Constitution is founded.^[658]

Public chidings of the judiciary cannot and should notbe taken lightly. As pointed out by Professor Wu, given the courts’ previously sheltered existence - there are legal constraints on public criticism of the judiciary in Malaysia^[659] - such criticisms can have dramatic impacts on the public’s confidence in the judiciary. Interestingly, the Government appeared not to have appreciated that continuous verbal attacks on the courts would ultimately give rise to a perception that people who take their grievances against the Government to the courts could not expect to be vindicated.^[660]

Given the strong views held by PM Mahathir, it is perhaps predictable that in the past decade or so, the Malaysian Government has subjected the doctrine of judicial independence to so much stress that confidence in the judicial capacity has been whittled down.^[661]

Constitutional amendments: a further whittling down of judicial power

Apart from verbally assaulting the judiciary, the Government also used its consti­tutional powers to tame the judiciary. Of relevance is the amendment of art 121 of the Federal Constitution to exclude reference to the vesting of judicial power in the courts, a direct response to the Supreme Court decision in PP v Yap Peng^[662] in which s 418A of the Criminal Procedure Code was held to be unconstitutional on the grounds that it infringed art 121(1) of the Federal Constitution by seeking to remove certain judicial functions from the court and placing them in the hands of the Prosecutor.

Although Professor Harding has argued that the precise effect of the amend­ment was not to exclude totally the inherent jurisdiction of the courts to exer­cise exclusively judicial power - since Parliament would surely have enacted more drastic provisions if it had intended such serious encroachment on judicial power^[663] - frequent amendments of the Constitution in this fashion sent the message to the public that the judiciary was weak and easily manipulated.^[664] Worse still, it might have created the impression among laypeople that an inde­pendent judiciary was contrary to national interest since it may frustrate govern­ment action.^[665]

The 1988 Saga

Assault of the judiciary reached its peakin 1988, when the highestjudicial officer and two other judges of the highest court were brutally removed from office. The dramatic series of events has been well documented,^[666] and the present aim is not to go into detailed recounting of the constitutional crisis, but to give a brief overview of the sad turn of events, and its impact on the general perception of the Malaysian justice system.

Itmayfairlybe said that the 1988 Saga was a side effect of the constant chidings of the judiciary; unused to such public criticism, many judges understandably felt wronged by what they saw as an unfair attack by the executive.^[667] Following a meeting, several judges in Kuala Lumpur rallied around Lord President Tun SallehAbas to take measures to halt the criticisms. Tun Salleh thus wrote a letter to the King, seeking his intervention. Part of it read:

The accusations and comments have brought shame to all of us and left us mentally disturbed to the extent of being unable to discharge our functions orderly and properly. We all feel ashamed because we are not able to avoid from being looked down by those who do not understand our position under the Constitution.^[668]

The letter reportedly offended the King and provided a chance for the Prime Minister to act against the head of the judiciary.^[669] A tribunal was subsequently set up, and formal charges were laid against Tun Salleh. Tun Salleh did not present himself during the proceedings, and his application for a Queen's Coun­sel, Anthony Lester (now Lord Lester of Herne Hill), a leading human rights lawyer, to act for him was rejected.^[670]

At the close of the proceedings, the tribunal^[671] concluded that Tun Salleh was guilty �of not only misbehaviour, but also of misconduct... which renders him unfit to discharge properly the functions of his office, as Lord President of Malaysia.'^[672] This conclusion, as well as the entire proceeding by the tribunal, attracted vehement criticisms from abroad. GeoffreyRobertson QC described the conclusion as �among the most despicable documents in modern legal history. It records no evidence of corruption or incompetence, or any conduct marking a judge unfit for office in a democratic society.'^[673]

Professor Trindade also pointedly observed that the choice and composition of the tribunal was inappropriate to consider the removal of a Lord President and ran counter to art 125 of the Federal Constitution,^[674] which required that the tribunal comprise persons who:

hold or have held office as judge of the Supreme Court or a High Court, or, if it appears to the [King] expedient to make such appointment, persons who hold or have held equivalent office in any part of the Commonwealth.

Regrettably, apart from the Chief Justice of Sri Lanka, the membership of the tribunal did not reflect the seniority or equivalence in terms of judicial standing which Tun Salleh was entitled to expect of those who were inquiring into his conduct.^[675] More glaringly, Tun Abdul Hamid, Chief Justice of Malaya, was allowed to chair the tribunal. This was controversial not least becauseTun Hamid was more likely to succeed to Tun Salleh's office if the latter was removed.^[676] The proceedings by the second tribunal, which led to the dismissal of the other two judges, fared no better in the international forum.^[677]

The entire episode was of grave concern to those who believed in the inde­pendence of the judiciary since it brought to the fore the fragile position of the judiciary under the Federal Constitution and how easily constitutional safe­guards could be swept aside by executive manipulations.^[678] At the end of the day, it appeared that it was the executive's views that held sway.

New appointments

After the shocking removal of the three judges, Tun Abdul Hamid was appointed Acting Lord President while the incumbent was suspended pending inquiry. This was met with strong disapproval by the legal fraternity,^[679] which felt that as Acting Lord President, Tun Hamid should have disqualified himself from mem­bership of the tribunal inquiring into the alleged misconduct of his predecessor since he stood to gain from the removal of the incumbent.^[680] Significantly, Tun Hamid had been present at the meeting of judges that led to the decision to send the letter to the King, which constituted the central justification for the removal of the Lord President.^[681] All these gave rise to suspicions of collusive behaviour with the executive.^[682] In 1994 a representative of the International Bar Association reported:

Judges who colluded with Tun Hamid remain on the bench. Inevitably, there persists an atmosphere of deep distrust of the judiciary, many ofwhose members are perceived as having abandoned their own independence in order to collaborate in a government scheme to remove those judges who continue to assert theirs.^[683]

Besides eroding public confidence in the judiciary, the new appointment also damaged the good relations between the Bench and the Bar. The Bar, a strong advocate of the independence of the judiciary, called for the resignation of Tun Hamid. When this was ignored, the Bar instituted contempt proceedings against Tun Hamid in March 1989.^[684] This was, however, met with an action against the Bar's secretary, by the Attorney-General, for scandalising the judiciary.^[685]

Even relations within the judiciary have suffered. According to a report by The Association of the Bar of the City of New York:

The Supreme Court now functions in an atmosphere poisoned by the Tun Salleh episode: collegiality has lessened, while distrust of the institution has increased.^[686]

Judicial misbehaviour: rot from within

Apart from the attacks by the executive, the erratic behaviour of some mem­bers of the judiciary has also contributed to its failure to repair its tarnished reputation.^[687] In 1994 Tun Hamid himself was accused of associating himself with some businessmen overwhose cases he presided, ruling in their favour. Such impropriety certainly did nothing for the scarred reputation of the judiciary. An International Bar Association representative wrote:

It is ironic - or perhaps poetic justice - that the judge who upheld wholly specious allegations of misconduct against his predecessor should now have admitted to much more obviously questionable behaviour. Whatever the outcome of any further inquiry, it is plain that the acknowledged conduct of the Lord President can only reinforce distrust in the impartiality of the Malaysianjudiciary.^[688]

Such a state of affairs did not bode well for the maintenance of the rule of law. Indeed, it has been said that corruption affects the people most insidiously when they are made to believe that it exists in the Judiciary. When the people no longer believe in the judiciary, the rule of law is undermined since any notion of justice and fairness is destroyed.^[689]

The year 1995 proved to be equally bad as 1994 for the judiciary, with �judge shopping' alleged in relation to the infamous AyerMolek^[690] case. Lawyers, espe­cially those involved in commercial cases, were found to have filed their cases in a manner which allowed them to manipulate their way to appear before their preferred judges. Justice N H Chan JCA, sitting in the Court of Appeal, was scathing in his criticism of the alleged practice in the High Court, saying that by doing what they did, �these unethical lawyers have brought the administra­tion of justice into disrepute.'^[691] More poignantly, Justice Chan concluded his judgment with the famous Shakespearean quote, �Something is rotten in the state of Denmark.' Tellingly, the Court was housed in a building called �Wisma Denmark'.

The case, yet again, brought judicial conduct into public scrutiny, and the unusually wide media coverage damaged the reputation of the judiciary and litigants alike. The comments of the Court of Appeal and the Federal Court also prompted the then President of the Bar to remark that �something is very seriously wrong.'^[692]

The drama did not end here. In 1996 a 33-page anonymous letter containing 112 serious allegations against 12 judges - 21 were allegations pertaining to abuse of power, 39 of corruption and 52 of misconduct, immorality and personal attacks - surfaced.^[693] The Attorney-General, incensed at the alleged conspiracy to �discredit the judiciary and subvert justice',^[694] announced police investigations into the authorship of the �poison pen letter', pledging to �ferret them out, who­ever they are, and bring them to justice.'^[695] However, following the closure of the investigations, the Attorney-General declined to disclose the name of the High Court judge who was apparently responsible for the authorship of the letter, sim­ply announcing that the judge had resigned, and that the allegations contained in the letter were �wholly untrue and baseless'.^[696]

The blatant lack of accountability in this episode dealt yet another blow to the floundering judiciary. While some were of the view that the matter should be dealt with in court, others unconvinced by the Attorney-General went further with the view that non-prosecution was an attempt to skirt around the concerns raised in the document.^[697] The Bar, for instance, commented:

[The episode] indicates that there are matters of grave concern within the Judiciary where it was possible for such numerous and pervasive complaints to be made against judges.^[698]

Indeed, the then-President of the Bar, Hendon bte Haji Mohamed, stated it was a �sad commentary on the state of the Malaysian Judiciary' that one of its members had found no channels to communicate his grievances other than through a poison pen letter.^[699]

The integrity of the judiciary took another beating in 1998 when photographs of Chief Justice Tun Eusoff Chin holidaying in New Zealand with a lawyer sur­faced on the internet. Of concern was the fact that the lawyer had been appearing in cases presided by the Chief Justice, and the latter had refused to recuse from such cases when requested.^[700] With regard to the photographs, Dr Rais Yatim, Minister in the Prime Minister's Department in charge of Law, declared:

We have intimated to the Chief Justice that this was improper behaviour... such socialising is not consistent with the proper behaviour of a judicial personality.^[701]

In 2000 the Hong Kong-based Political Economic Risk Consultancy ranked the Malaysian legal system as one of the five worst in Asia,^[702] compounding views held by the already cynical public. The announcement, in the same year, that there was a backlog of more than 700 000 cases did nothing to dispel these neg­ative sentiments about the state of the judiciary.^[703] Furthermore, the increased occurrence of contempt of court incidents and threatened actions perpetuate the impression that the courts are intolerant of any criticism.^[704] It has been argued that the threatening of contempt actions only serve to highlight the impotence of the Bench in discharging its duties relating to the rule of law. Professor Wu, for example, has pointed out that given the judiciary's inability to protect its own reputation and win public confidence, its only blunt weapon is to threaten prosecution of those whose criticisms are in fact directed to upholding the inde­pendence of the judicial process.^[705]

More recently on 19 September 2007, a 14-minute tape-recorded conversa­tion between corporate lawyer V K Lingam and the Chief Justice Ahmad Fairuz on fixing the appointment of senior judges surfaced,^[706] prompting further public outcry. Following calls by the legal fraternity, the Royal Commission of Inquiry began an inquiry into the matter on 14 January 2008.^[707] The Commission was made up of retired Court of Appeal judge Datuk Mahadev Shankar, for­mer Chief Justice of Sabah and Sarawak Tan Sri Steve Chin, former Solicitor­General Puan Sri Zaitun Zawaiyah Puteh and academic Tan Sri ProfessorDr Khoo Kay Kim.^[708]

The Commission identified six figures to be placed under investigation, includ­ing former PM Mahathir, Lingam, tycoon Tan Sri Vincent Tan, Tengku Adnan and former Chief Justices Tun Eusoff Chin and Ahmad Fairuz.^[709] In particu­lar, the Commission found that Lingam had directly influenced the elevation of judges, especially the appointment of Ahmad Fairuz as President of the Court of Appeal.^[710] In July 2008 all except the former Prime Minister applied for judicial review to quash the findings of the Commission, but the attempt reached a dead end in the High Court in December 2008.^[711] At the time of writing, all five of them have decided to appeal against the High Court decision.^[712]

Whether or not the appeals succeed, the Lingam tape scandal has caused irreparable damage to the reputation of the Malaysianjudiciary. An article in the Bar's newsletter read:

It would as such be almost impossible for any literate person in Malaysia not to be aware of the precarious standing of the Judiciary in Malaysia at this present time...judicial corruption is now out in the open.^[713]

In the same year, an opinion poll conducted by the Merdeka Centre found that less than one-half of the voters saw the judiciary in favourable light.^[714]

Aside from allegations of improper behaviour, there have been instances where the courts appear to be incapable of carrying out their functions speedily and effectively. An illustration is the case involving activist Irene Fernandez, who was charged in 1995 under s 8A(1) of the Printing Presses and Publications Act 1984 for allegedly publishing false news. It took 13 years for the courts to finally vindicate her in November 2008.^[715] Of concern were the numerous postponements of her appeal due to incomplete records, and the disclosure by Fernandez's lawyer that the 8998 pages of handwritten and typed notes that made up eight volumes of documents were incomprehensible.^[716] Since justice delayed is justice denied, such cases of protracted delays in the administration of justice legitimately give cause for concern.

The Anwar Ibrahim trials

The corruption and sodomy trials involving former DeputyPM Anwar Ibrahim^[717] dealt further blows to the judiciary, in terms of public confidence in its integrity, and raised further issues impinging on the administration of justice.^[718] In this turn of events, beginning in 1999, it was observed that the judiciary was drawn into the battle for political survival^[719] between PM Mahathir and Anwar not of its own doing.^[720] Even so, every time the courts are drawn into political struggles, their prestige also takes a beating.^[721]

Several curious features of the proceedings have been highlighted and vehe­mently criticised by the local and international communities.^[722] For example, Anwar's trial before a single judge without a jury appeared to be another instance of executive manipulation of the judiciary.^[723] The appointment of Justice Augus­tine Paul, the most junior judge in the Criminal Division of the High Court, as the trial judge of such a highly charged case^[724] also raised some eyebrows.^[725] Notably, requests by international bodies (such as the United Nations represen­tatives) and the Malaysian Bar to be admitted into court as official observers were all denied.^[726]

Also controversial were several of Justice Paul's decisions in the course of the corruption trial. For example, he deemed irrelevant all evidence of political conspiracy, which was known to be inextricably linked to the case.^[727] Thejudge also used and threatened to use his contempt powers against defence lawyers^[728] - Zainur Zakaria, one of the defence lawyers, was found guilty of contempt of court and was sentenced to three months' imprisonment, and at the end of the proceedings, the entire defence team was threatened with contempt actions for refusing to sum up unless the judge dealt first with their motion to disqualify himself for bias.^[729] Such a practice is potentially harmful to the ability of lawyers to render their services freely and independently.²⁹² Ironically, the judge did not react to the outspoken and forceful public comments made by PM Mahathir before and during the trial.²⁹³

In the proceedings relating to charges of sodomy, which opened on 7 June 1999, the date of the alleged crime was amended three times in the course of the trial, each time after Anwar and his lawyers had pointed out loopholes in the allegations.²⁹⁴

The Anwar trials were widely viewed as a political conspiracy, into which the judiciary had been unwittingly drawn. According to ProfessorWu, the prevalent perception was that the judiciary was carrying out the will of its political mas­ter, bringing public confidence in the integrity of the Malaysian judiciary to its lowest ebb.²⁹⁵ Anwarwas convicted of corruption on 14 April 1999. Manywere surprised at the harshness of the six-year sentence, and saw it as being politi­cally motivated, triggering days of demonstrations in the capital.²⁹⁶ On 8 August 2000 an additional six-year sentence was handed down in relation to the sodomy charges, prompting Singapore’s Minister Mentor Lee Kuan Yew to describe the Anwar trials as a â€?series of blunders’ and â€?an unmitigated disaster’.²⁹⁷

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