The Rule of Law and Judicial Independence
Speech by Dato’ Seri Anwar Ibrahim at the launching of “Anwar on Trial – In the Face of Injustice” by Pawancheek Marican in Kuala Lumpur on 14th September, 2009 at the De Palma Hotel, Ampang
Today I would like to share with you some thoughts about a subject which I believe is close to our hearts. Not just to politicians, lawyers or social workers but to every member of society. It is so close that without it the very foundation of a free and democratic society crumbles. It is called the rule of law.
According to F.A. Hayek, this means that government in all its actions is bound by rules fixed and announced beforehand which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affair on the basis of this knowledge. That definition is indeed a powerful formulation of the concept but I would hasten to add a major rider to it, which is, that the coercive powers referred to must be predicated on the basis that the laws in the first place must meet the criterion of justness. Hence the rule of law means the exercise of publicly justifiable power. I emphasise the phrase ‘publicly justifiable power’ because not every law that comes out of Parliament is publicly justifiable. In other words, the rule of law requires the application of moral standards to legislative output. And this is because every individual possesses rights founded on justice which are inviolable. The positivity of law is not sufficient to establish its lawfulness. If laws are unjust then the rule of law itself is in jeopardy.
The Internal Security Act is a classic instance of this injustice. It offends against human dignity and it violates our fundamental rights but it still continues to be used arbitrarily against those seen as possible threats to the ruling elite. We have a written constitution which guarantees our liberties including freedom from arbitrary arrest. Yet the use of the ISA to silence political dissent makes a mockery of this guarantee. Just two months ago, we witnessed one of the largest manifestations of the people’s opposition to this draconian law but tragically, the UMNO-controlled agencies responded with even greater use of tyranny and oppression.
So among the paramount characteristics of the rule of law concerns the judiciary. In this regard, judges must exercise their powers in accordance with the rule of law and not the rule of men. Translated into the real world, this means the judiciary must not be accountable to the Prime Minister. If the rule of law is to mean anything, one of the essential prerequisites is that the judiciary must be independent.
