Restoring the rule of law

  • Making Progress
  • Friday, 22 Feb 2019

The rule of law is a phrase used by politicians who seek to show they are acting within the limits of the law. It is used by lawyers on arguments or justification in court. It is used by journalists when they are exposing a scandal. It is used by those charged with an offence who plead innocence.

Succinctly put, it is often over-used and abused and no one really understands it.

One of the most brilliant jurists of our time Thomas Bingham, the former President of the United Kingdom Supreme Court, actually wrote a book about the rule of law.

He said, "the core of the existing principle of the rule of law: that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts."

Essentially, the rule of law means that:

1. Everyone, whether public or private entities including individuals, act within the remits of the law. In other words, we uphold the laws of the land.

2. The laws must be publicly made known i.e. everyone must be aware of the law hence they know what they can and cannot do.

3. The law must be administered in a fair and just manner, in other words, the administration of justice must be flawless.

Recently, Malaysia has been rocked by the explosive affidavit by Court of Appeal Judge, Dr Hamid Sultan Abu Backer. I too have read Justice Hamid's affidavit and I must say, I was shaken too. Some have questioned his motivations but sometimes the message is more important than the messenger.

Justice Hamid also hinted at a top judge, whom he referred to as "ARLC", who became a sort of a "Maharajalela" (tyrant) dictating what the judges should do and write.

This was also the same judge who reprimanded him as he was upset with his jurisprudence that prevented ARLC from furthering his own devious ends, said Justice Hamid.

The reason behind Justice Hamid's affidavit is due to an action filed by the late Karpal Singh's daughter, Sangeet Kaur Deo with regards to his conviction for sedition in 2016. Sangeet had sued the Chief Justice on Jan 14, 2019 in seeking a declaration that he had failed to protect and defend the integrity of the judiciary with regard to her late father's sedition case.

Justice Hamid claimed during a law conference last year that there was pressure from the top echelon of the judiciary to find Datuk Seri Anwar Ibrahim guilty of sodomy and Karpal Singh guilty of sedition.

Both cases were decided contrary to settled law and legal principles, the most grotesque being Anwar's conviction for sodomy wherein the law of evidence was massacred in order to convict Anwar.

Karpal was convicted of sedition simply because he said the Sultan of Perak can be taken to court due to his actions involving the 2009 Perak constitutional crisis. It is trite law that members of the royalty, save the King, can be taken to court.

What Justice Hamid has said especially with regards to how the administration of justice has been compromised mainly due to ARLC is clear evidence of judicial and constitutional misconduct in the judiciary. The public must have faith in the judiciary's ability to dispense justice without fear and favour in line with the Federal Constitution, laws enacted by Parliament and settled legal principles.

If someone can "buy off" or "tell off" a judge, then clearly the administration of justice and by extension the rule of law has been severely compromised. No one will trust the judiciary and that will spell the end of our constitutional framework.

The judiciary has been supplicant to the executive for a long time now. The 1988 judicial crisis that led to the sacking of then Lord President, Tun Salleh Abbas and two other judges of the then Supreme Court put in motion its systematic enervation.

Second, the Royal Commission of Inquiry (RCI) into the V.K. Lingam video clip was formed in late 2007 to investigate allegations of illegal intervention into the judicial appointment process of Malaysian judges purportedly in 2002. The words "correct, correct, correct," that were uttered by Lingam remains etched in our memories.

In the aftermath of the 2007 RCI, some changes were made, and the appointment of judges was supposed to be more transparent. Clearly, these reforms have failed as evidenced by Justice Hamid's allegations.

What Malaysia needs is a judicial renaissance. Our jurisprudence today is muddled and confusing mainly because cases are decided on the basis of preference and not the law; but it is very unfair to say all judges are bad. There are brave sentries who continue to stand as guardians of the rule of law and justice, but they cannot do much because the problem is with the top.

We must form another RCI for Justice Hamid's allegations to be fully and effectively investigated and ventilated.

However, real reform begins with drastic changes that will upend and severely rework the current structure of the judiciary.

Parliament should introduce a Judicial Standards and Accountability Act, that will amongst other things ensure the following:

1. Require judges to declare their assets and lay down judicial standards.

2. Judges should also be required to declare their assets and liabilities, and also that of their spouse and children.

3. Establish a National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation committee. Any person can make a complaint against a judge to the Oversight Committee on grounds of "misbehaviour".

4. Complaints and inquiries against judges must be confidential and frivolous complaints will be penalised.

5. The Oversight Committee may issue advisories or warnings to judges, and also recommend their removal to Parliament.

The procedure for removal of judges of the higher court are spelt out in the Federal Constitution and this Act will not prejudice that. Currently, while there is a clear path on removing a sitting judge, the procedure for investigating judicial misconduct is unclear.

India attempted such an act but failed due to pressure from judges, but Malaysia must lead the way to immediately enact such an act because the judiciary has shown that it is unable to police itself.

Also, the government must immediately reverse its amendments Articles 121 and 145 of the Federal Constitution and return judicial powers of the federation to the courts.

A reminder to those in power and with the capability to make all of these transformative changes: "Those who cannot remember the past are condemned to repeat it - George Santayana".

It is time the rule of law is restored in Malaysia.

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