By M. Bakri Musa

Chapter 10: Freedom, Justice, and the Law

The Judiciary: Justice in Jeopardy

Not only must there be respect for the rule of law, but the laws themselves must be just. Those administering the law too must be just and be seen to be just.

The Malaysian judiciary began on a very high note with judges held in the highest esteem. Tun Suffian set the tone not only with his exemplary personal example but also the depth of his legal judgment and scholarly analysis. The low point of the Malaysian judiciary occurred when the King, acting on the advice of the prime minister, suspended the chief justice and a few of his associates. Sadly from there the judiciary seemed to breach new lows every so often. A retiring senior appellate judge recently publicly confessed his shame for having been a member of that august body. He bluntly blurted about Malaysian litigants being confident of winning even “hopeless cases” as long as they were filed in “certain courts.” A more damaging indictment would be hard to find.

This sorry state of affairs received widespread international attention with the released of a scathing report jointly issued by, among others, the International Bar Association and the International Commission of Jurists. Justice in Jeopardy: Malaysia 2000, asserts, “…well-founded grounds for concern as to the proper administration of justice…in cases which are of particular interest, for whatever reason, to the government.”

The commission in particular was concerned of the manner judges were selected for high profile cases, especially those with political undertones.

Many of the issues raised by those distinguished jurists are familiar not only to lawyers but also ordinary citizens. For example, the commission is critical of the merging of the legal and judicial services that resulted in the rotating door policy between judges and prosecutors. As these officers are answerable to the same superior, it does not encourage the development of distinct and independent services.

The commission resurrects many of the same issues I raised in my earlier book, among them, the insularity and limited experience of Malaysian jurists. As the commission also noted, nearly three quarters of them are promoted from within; there is little or no infusion of fresh talent from the outside. Few of the judges have experience outside of government. Part of the reason is that the pay is not competitive to attract talented private practitioners. Further, new recruits of esteemed lawyers are treated as if they are junior appointees. They are placed on probation for a year or two, and often start as lowly magistrates. That is certainly no way to attract legal luminaries from the outside. In contrast, American judges count among their peer brilliant legal scholars, successful private practitioners, and accomplished statesmen. Malaysia should do likewise and have an infusion of top talent directly into the upper levels of the judiciary.

The way Malaysia selects its senior judges stands in stark contrast with that of Singapore. As related in his memoir, when Prime Minister Lee Kuan Yew was looking for his new chief justice, he instituted a thorough and exhausting winnowing process. He polled successful private practitioners, respected academics, and senior judges for their recommendations. After short-listing the candidates he interviewed each one of them. It is no surprise then that Singapore’s present Chief Justice, Yong Pung How, commands such great respect not only at home but also abroad. No lawyer would dare make flippant or flamboyant remarks about his performance or person. His resume is formidable: the product of the world’s best law schools (Cambridge and Harvard), extensive business experience (chief executive of a major bank), and successful private practice.

No Malaysian judge comes even close to this man in terms of the breadth of experience or sterling academic qualifications. Malaysia does not lack for talent, but the system does not allow them to emerge. Malaysian leaders do not consider senior judicial or other public appointments merit such careful scrutiny.

A telling indicator of the caliber of Malaysia’s top public officials is demonstrated by the silly squabble between Law Minister Rais Yatim and the then Chief Justice Eusoff Chin that took part in mid 2000.

The controversy erupted over the judge’s choice of an overseas holiday companion, a certain lawyer who had appeared before him on a high profile case. When the news first broke out, the judge vehemently denied any impropriety, claiming that he had merely “accidentally” bumped into the lawyer on his trip. But when investigative reporting by Malaysiakini revealed that they had shared the same flight and were together for an extended period during their vacation, the minister felt compelled to publicly chastise the judge.

That a junior minister (and a rookie one at that) could openly humiliate the Chief Justice (a man considerably higher in the government scheme of things) leads me to a disturbing thought: Would a more powerful minister hesitate in letting a less senior judge know of his (minister’s) displeasure?

Rais Yatim, in his previous incarnation as deputy leader of the opposition Semangat Party (it later merged into UMNO, which was how he ended up in the cabinet) was highly critical of the unchecked powers of the executive. Such overzealous dominance, he noted in his doctoral dissertation, threatens the independence and integrity of the judiciary. Wise observation! Alas, that was then. Once in the cabinet he sings a decidedly different tune, one more pleasing to his master’s ears. I would have more respect for Rais had he, before accepting his cabinet position, tried to convince Mahathir of his views. A belief so readily discarded is no conviction at all.

While these pathetic senior public figures spat in public, the more damning criticism leveled in Justice in Jeopardy was conveniently ignored. Indeed both the law minister and chief justice confessed in not having read it as they had not as yet received an official copy, even though the entire document was readily available on the Web. I publicly suggested that the minister should pay attention to the report instead of the judge’s poor choice of holiday companion. That would not have generated as much publicity for Rais, but it would do him and the nation immense good.

In the end what made the government act were the concerns of foreign investors. They were getting increasingly uneasy with the way justice was dispensed, especially in regards to “mega awards” and lawyers “shopping around” for sympathetic judges. Such practices clearly undermine the integrity of the entire system. The Political and Economic Risk Consultancy (PERC) ranked the Malaysian judiciary behind that of South Korea and the Philippines. Increasingly, investors (foreign and local) factor in their faith in the country’s justice system as a major consideration in deciding where to invest their money.

In February 2002, the giant California Public Employees Retirement System (CalPERS) stunned many by declaring its withdrawal from many emerging markets including Malaysia. Although Malaysian officials tried to dismiss or minimize the significance of the decision, there was no question that it was a tremendous blow to Malaysia. CalPERS’s had suffered tremendous loss in those markets. For the past five years, its average annual returns for Malaysia was a horrifying – 18.3 percent. CalPERS concluded that it is not enough to analyze the performances of companies and markets; it must also look at the supporting political and governmental structures. In essence, it concluded that you could not have a “good” company in a “bad” country. Malaysia scored poorly in such areas as political stability, financial transparency, free press, and most importantly in the context of the present discussion, an independent judiciary.

Apart from being the biggest fund manager, CalPERS is also widely regarded as a trendsetter. Malaysia ignores CalPERS observations at its own peril.

In response to Justice in Jeopardy, the government set up a Human Rights Commission (Suhakam), chaired by a former deputy prime minister, Musa Hitam. Thus far Suhakam has reviewed cases of alleged police brutality as well as actively championing citizens’ rights. To me its pronouncements are bland and mild (for example, Malaysians have a right to peaceful assembly). Nonetheless it is a sad reflection of how low human rights and civil liberties have been degraded in Malaysia that such obvious statements were widely lauded and welcomed.

The year 2001 saw the appointment of a new chief justice, Dzaiddin Abdullah. His first order of business was to immediately admit the rotten state of the judiciary, a rare public admission by a senior official, and he then went about to clean up the mess. Thus far his moves have been widely applauded by both the public and members of the Bar. Even Rais Yatim saw fit to claim credit for the judge’s appointment.

Dzainuddin’s elevation was like a refreshing breeze that many would hope will remove the stench from the judiciary.

Through globalization, Malaysians are now very much aware of events occurring elsewhere. Just as Malaysians demand a world standard of education and medical care, so too they now want the same liberties enjoyed by other civilized citizens. Malaysians are not comforted by the fact that they have more freedom than the Indonesians or Iraqis.

Having seen the best they rightly demand the same. The Malaysian system of justice must therefore accept the prevailing international norms. There is no longer a “local” standard. Police brutality and other infringements on basic human liberties are as unacceptable in Malaysia as it is in America.

The negative consequences of the 9/11 tragedies are, among others, intrusive legislations introduced in America to meet this new national challenge. The Patriot Act of 2001 for example, provides for detention of non-citizens without trial. Such moves by the Americans emboldened Mahathir to wield the ISA and other restrictive laws even more brazenly, all the while smugly asserting that the Americans are finally wising up to Malaysian ways. Nothing could be further from the truth.

In their conceit Malaysian leaders are ignoring some essential differences. For one, the new restrictive law had a very rough grilling in Congress. It was also widely debated by the populace. Further, such rules apply only to non-citizens and have sunset provisions, meaning they will be intensively reviewed and will expire in three years unless specifically renewed. These are significant differences that Malaysian leaders do not apparently appreciate or choose to ignore.

If the system of justice in Malaysia were to meet the prevailing world’s norms, it would surely earn the respect of the citizens and the international community. It would also be good for business. Surely that is a worthy goal.

Malaysia spares no effort in trying to attract foreign investors and businesses. Fixing the badly tarnished justice system would go along way to assure these foreigners. In the next chapter I will go into greater detail on how Malaysia could make herself more attractive to investors, local and foreign, by enthusiastically embracing free enterprise.

Next: Chapter11: Embracing Free Enterprise