Judiciary far from truly independent — Ronald Benjamin

January 27, 2012

Since Anwar Ibrahim’s acquittal, political commentators and prominent intellectuals have made statements that the judiciary has shown independence. Prime Minister Najib Razak has said that the High Court decision is testimony that he has not interfered with the judiciary. Is the PM implying there was indeed interference before?

Is our judicial system built on such shaky grounds that it has to depend on the goodwill of a prime minister in office for its independence? While it is true recent cases such as the judgment on the Universities and University Colleges Act and the conviction of a prominent state politician have suggested the independence of the courts, these rare decisions do not make the judiciary independent.

One of the greatest truths in any meaningful reforms is the ability to dig deep beyond the surface to discover the root cause of the judicial rot and accepting the widespread perception that interference of judiciary may have occurred. The culprits must be nailed and remedial solutions must be found. Atonement must be shown for past mistakes, and we can then look forward to a lasting solution that would allow us to leap forward into a new era.

This requires honesty and truth seeking. Has our judiciary undertaken such soul searching in its quest to become truly independent? Some commentators have argued that over the years the judiciary has shown independence by taking action against both government leaders and opposition politicians and this by itself shows independence. But this argument is simplistic because the judicial process is not merely based on the judgment in a given case. The details of the process of justice itself, whether it meets the standards of natural justice and its ability to adhere to the supreme objective law of the constitution, are other major considerations. This is where the Malaysian judiciary system appears to have failed compared with other countries with a more well developed and independent judiciary.

Here are a few points to support my assertion.

First, the Lingam tape scandal that resulted in the formation of a royal commission of inquiry. The commission’s findings were never acted upon. This has been widely seen as one of the greatest judicial scandals. The roots of this scandal have never been addressed and the culprits remain unpunished. The whole episode was not brought to a conclusion and this itself has damaged the judiciary beyond redemption.

Why the reluctance on the part of the Attorney-General to charge the accused and to direct further investigation on individuals who were named in the report? Going to the root of a corrupt system would entail exposing a strong corrupt cable of complex relations in a court of law. It would also involve questioning the office of the Attorney-General and prominent politicians, and that would have severely dented the credibility of the ruling BN coalition. Besides this, measures to root out a corrupt system and ensure that lawyers or politicians are not able to bribe or gain influence over judges were never put in place.

The independence of the judiciary cannot be seen in isolation, because a system that encourages corruption is still in place. The Malaysian judiciary needs reforms such as putting in place credible judges and unravelling a corrupt cabal of complex relations. What happens now is that when we have a new head of judiciary, he would normally come up with lofty ideals but fall short in actually reforming a system that tends to corrupt the judiciary in the first place. The interaction between the judiciary and the dominant political ideology is reflected in the system. Therefore to say that the government supports the independence of the judiciary is merely a political statement with no substance.

Second, in terms of the details of the justice process in the Anwar Ibrahim Sodomy 2 trial, a glaring miscarriage of natural justice took place when the accused was not given the opportunity to skim through documents that could have been beneficial to him such as medical records and notes that could help him prepare his defence. Charges were amended just to tarnish the character of the accused before the court of public opinion. For example, the charge levelled against Anwar was for consensual sex, but his accuser was spared from prosecution. Before facts could be determined in its complete form the alleged victim’s testimony was deemed to be credible.

There is always a reluctance by the courts to insist that top politicians such as the PM enter their testimony. Because of such developments in the case, many perceived the case to be one-sided and against the grain of natural justice. This has brought about a negative perception of the impartiality of the judiciary in the minds of discerning Malaysians, even though the judgment turned out otherwise (and now there is an appeal). Does not natural justice demand the right to fair access to information so that the accused can prepare a credible defence?

Third, the continued existence of anti-liberty laws such as the ISA, the Official Secrets Act, the Sedition Act and the new Peaceful Assembly Act clearly shows that our judiciary has submitted to the power of the executive instead of protecting the civil liberties of Malaysians as enshrined in the constitution. This is also true regarding the rights of the minorities especially over freedom of religion. Even though there have been judges who have made courageous decisions in the lower courts, their decisions are usually overturned in the higher courts.

To say that our judiciary is truly independent is something that does not make sense especially after witnessing the crisis and the complacency of the institution over the years. The type of response the government has initiated does not go to the very root of what corrupts the judiciary.

It is not easy for vested interests in a corrupt system to voluntarily give up their leverage. Only a change of government can bring about the desired results, but this too depends on the seriousness of those who come to power. — aliran.com

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