Taking Justice Seriously

 

Speech by Anwar Ibrahim, Head of the Opposition, Malaysian Parliament at the 15th Malaysian Law Conference 2010, Kuala Lumpur Convention Centre, 31 July 2010

First, I’d like to thank the organizing committee for inviting me to close the conference. Perhaps that is an understatement. Really, I should say that words can’t convey my profound appreciation for the ‘slings and arrows of outrageous fortune’ that your organization has to suffer by inviting me here. But then again, I see it as a mark of conviction and fortitude that you have stood your ground in the face of adversity. Therefore, I mean it in the truest sense when I say that I am greatly honored to be here to give my humble address to such a distinguished audience.

Today I shall depart from the usual practice of poking fun at lawyers. So let me take issue with Justice Oliver Holmes when he said that lawyers spend a great deal of their time shoveling smoke. This remark is totally uncalled for. Speaking from personal experience, I have seen the toil and the tears that some lawyers have to go through in handling certain cases. I tell myself there must be some kind of masochistic tendency in them that they can carry on in spite of so much pain. And then on closer reflection, it has to do with the nobility of the profession and certain values in life. Of course, in any basket there are always some bad apples but as they say that shouldn’t spoil the whole bunch.

Indeed, I am fortunate to be able to count among my close friends, lawyers of the highest integrity and dedication to their calling. Which is why I stand here before you in humility to speak on a subject that I believe is close to all of us.

So, with apologies to the eminent legal philosopher Ronald Dworkin, I have chosen to title my speech today as “Taking Justice Seriously”.[1]

As one saying goes, the principle of justice is so central in a civil society that without it the concept of law has no meaning. The Holy Qur’an enjoins us to “judge with justice.” According to St. Augustine, kingdoms are but great robberies if justice is taken away. In my own humble view, no civilized society can exist without it, for justice is so central that bereft of it, the very foundation of our humanity crumbles.

To be sure, in talking about justice, we are not confined to the judges and the judicial system of a country though that is a crucial component. Nor are we limited to discussing only the role of lawyers or the law enforcement agencies, though that too is essential. And justice is not only about subjecting the actions and policies of the Executive to intense scrutiny. That too is of utmost importance. Indeed the subject encompasses all that have come to be associated with the idea of justice: freedom and democracy, the rule of law, constitutionalism, equity and fair play, social justice and the dignity of man. Let me begin with a historical account that is still relevant to the very idea of justice.

More than a century ago, the great French writer Émile Zola published his famous open letter entitled “J’accuse” on the front page of a leading Parisian newspaper. Expressed in highly emotional language, Zola charged the nation’s military top brass with conspiracy and anti-Semitism in dealing with the infamous Alfred Dreyfus affair. But instead of bringing the culprits to book, the authorities lost no time in arresting Zola, charging him with criminal libel, and having him tried as a common criminal. The show trial was so well managed that an angry bloodthirsty Parisian mob gathered outside the court house clamoring for Zola’s head.

Anatole France, another eminent man of letters, came to his defence and valiantly testified to Zola’s “admirable good faith and absolute integrity.”[2] But this was of no consequence as Zola was hastily convicted and sentenced to jail. However, thanks to his quick thinking and survival instincts, Zola chose freedom instead and dashed off to England. By his reckoning, there was a total failure of justice and it would be foolish for him to submit to an utterly corrupt and unjust system.

Today as we sit here in closing three days of very spirited discussions about the state of law, of human rights and of justice in the nation, we find ourselves in a situation not much different from what I have just recounted. As you can readily gather, there is indeed an uncanny parallel between the Zola episode and what is currently going on here. And I am not talking about my case here. I am referring to the persecution of a famous blogger who published not “J’accuse” but an equally sensational expose which shook the nation, and who has also chosen freedom in London.

So, at the root of this episode is the issue of the people’s participation in matters which have a bearing on society – they comment, they criticize and they expose the wrongdoings and shenanigans of those in power. Because of this, they are branded as enemies of the state and are hounded like common criminals.

From one angle, we could see this as a classic case of the tyranny of state power. Yes, we can view it that way or we can go beyond mere emotional outburst and look at it as a failure of the state to allow for government by discussion and participation.

According to one of the most influential public thinkers of our time, Nobel laureate Professor Amartya Sen, “the central issues in a broader understanding of democracy are political participation, dialogue and public interaction.”[3]

The failure to allow for ‘government by discussion’ can be seen for example in the deprivation of a free and independent press. Without this, the advancement of public reasoning is constrained and is forced to find its voice through other channels. The benefits of a free and independent media have been well expounded by leading writers and empirically we know what that is all about.[4] So, I need not and should not attempt to reinvent the wheel here. Unfortunately for us, far from having a free and independent press, we have one which is essentially a propaganda machine for the powers that be. As a result, the people’s voice can only be heard through an alternative media, one which thrives in spite of the constraints imposed by the authorities. As you know, we have a plethora of laws aimed at curbing freedom of expression enforced with the full might of the organs of state power.

Arbitrary, whimsical at times, but more often tyrannical and politically motivated. This is how I would characterize the Executive in their use of power. The fact that just a month ago, all three newspapers of the Pakatan Rakyat coalition were suspended speaks volumes about press freedom in this country.

The point is that media freedom is so central to the democratization process that without it there is neither democracy nor justice. To my mind, where the voices of truth are muzzled, where dissent is stifled and where opinions are censored, it is a travesty to call it democracy. 

As Amartya Sen puts it so succinctly, “the media is important not only for democracy but for the pursuit of justice in general. ‘Discussionless justice’ can be an incarcerating idea.”[5]

The suppression of the people’s voice is not restricted to just the media. The freedom to assemble and to listen to ceramahs (public lecture) is also severely curtailed and that is a violation of the people’s constitutional rights.  In this regard, I must commend the Bar Council for having taken much initiative in its outreach program to educate the public about their fundamental rights as citizens of a nation founded on a constitutional charter.

Closely linked to this is what is known as the protective power of political liberty in securing justice. This is not a new concept. It is already laid down in our constitution. It is supposed to protect us from harassment and highhandedness of the authorities; it should protect us from arbitrary arrest and selective as well as vindictive prosecution; and it should protect us from the oppression and persecution of a less than impartial judiciary.

Now this protection is essential for the proper functioning of a true and viable democracy; not a democracy which is spun by an elaborate network of public relations campaigns at home and abroad with millions of the tax payers’ money to foot the bill; neither are we talking about a democracy that buys its way through op-ed columns and full page ads in foreign newspapers paid for by unknown sources; and most certainly not a democracy where the state rides rough shod over the rights of the people, treating the property of the state, the land and the rich resources like a private fiefdom, for the amassing of wealth and to live out the good life at the people’s expense.

In a true democracy, justice prevails in a system where the rule of law governs the administration of justice. That means judges will exercise their powers in accordance with the rule of law and will be mindful of the legitimate expectations of the people as to their competency, dedication and impartiality. Our society is maturing and with it, expectations of the moral dimension of justice become greater. As John Rawls has said, laws and institutions, no matter how efficient and well arranged, must be reformed or abolished if they are unjust.[6]   

In a real democracy, sham trials will not see the light of day because the principles of justice and due process will prevent the arbitrary use of prosecutorial powers. Unfortunately, we have now become familiar with this scenario in various parts of the world: first, because of the fear of losing power, a strategy is unleashed with the sole aim of crushing the political threat. This is done by neutralizing the leader or leaders. Trumped-up charges are leveled no doubt aimed at putting them behind bars for good. Then, despite the best efforts of lawyers to mount a fool-proof defence, the judgment is a foregone conclusion.

The point is when the rule of law is crushed under the tyranny of politics the administration of justice becomes farcical and perverse. We would expect that in a real democracy, the use of the judicial process to bring down political opponents will not be tolerated. However, where judges are unable to stand up to the political masters, those prosecuted for political reasons are condemned even before the trial begins. At every step along the arduous path to finality, all manner of obstacles are thrown to frustrate them in their effort to secure a fair and just trial.

We see the work of the ubiquitous unseen hand here, its invisibility made possible because of the utter lack of accountability and transparency in governance. Because of this, not only do we see the substitution of the rule of law by the rule of men but we see the entire system and process of governance being turned on its head.

Without accountability, those who wield power can get away with anything. Contracts and projects worth millions of ringgit, even hundreds of millions, are doled out without any regard to proper and due process. There are also ventures which have cost the nation billions and when they fail, the ones responsible for the fiasco not only go unpunished but actually get to benefit from it. We may shake our heads in utter disbelief but the reality is staring us in the face. That is why taking justice seriously is no longer an option but an imperative. 

As government is power, we must hold to account those who wield that power. The moral imperative lies not in accountability for the sake of political expediency but in the dictates of justice. This imperative must apply to all those holding power regardless of whether they are from the Federal Government or State Governments. Access to information is essential to enable citizens to challenge actions of public officials and to seek redress for misconduct. While freedom of information laws will secure open government by fiat, the question remains as to why the moral imperative seems to evaporate along the corridors of power. In this regard, I am proud to say that, the government of Selangor has passed the Freedom of Information Enactment in spite of the obstacles thrown in its path. This is part and parcel of the Pakatan Rakyat reform agenda. In terms of governance, there shall be no compromise on accountability and transparency. We see what is wrong, we make good and we move forward. On the other hand, the Federal Government appears to be hell bent on turning back the clock.

They say that this enactment is bad law because it contradicts the Official Secrets Act. On the contrary, we say that it is the Official Secrets Act which is bad law because it violates the basic guarantees of the Federal Constitution. And more importantly in the context of justice, we believe we are on the right side of the moral argument because if there is nothing to hide, why is there a need to keep secrets? If we can defend our actions, why do we need to hide behind secrecy laws?

The amassing of wealth through corrupt means, the abuse of executive power for material gain, and the squandering of tax payers’ money – these are some of the hallmarks of the failure to have accountability and they impact directly on the question of justice. Every ringgit squandered or misappropriated is every ringgit that should rightly have gone to the people for their benefit, for free education, and for free health care. The demands of social justice alone therefore warrant the absolute need for accountability.

In Islam, the idea of social justice or al-Adala al-Ijtima’iyya enjoins upon the equitable distribution of wealth while protecting the higher objectives of the Shari’ah or al-Maqasid al-Shari’ah. Among these is the safeguarding and preservation of property, that is, protecting the wealth of the community from being pillaged and plundered by those in power. By extension, good economic governance is a moral imperative and any government which prides itself as being responsible to the people must be committed to a sound and balanced economic agenda.

This is why we have a reform agenda that aims at reducing the socio-economic inequities of the people while at the same promoting healthy economic growth. In this agenda, we welcome domestic and foreign private-sector investment initiatives, generate full employment opportunities, and ensure robust development that adds long term value to the economy. But we will have no truck with the rent-seeking practices, crony capitalism or ostentatious and wasteful development of our predecessors. Sustainable development is not a mere numbers game. As an integral part of the notion of justice, development must proceed on an even keel with the other elements so as to enhance the quality of life and uplift the dignity of all. We are not saying that this can be achieved at the blink of an eye. Indeed, with Federal power still concentrated in the hands of an elite few the odds are heavily stacked against us. The path ahead is fraught with danger and obstacles. But despair not. Let us fortify our resolve to take justice seriously and fight for the future of our generations. For in the words of Anatole France: “We will win, because we are right, and because reason is on our side.”[7]

Thank you.