Rule of Law – Where is the ‘reset button’?

Arun Kasi, Member of the Malaysia Bar

The previous government fell at the general election last year. The general public perception has been that the previous government and its key politicians were largely kleptocrats and they bent and broke that the rule of law resulting in multi-billion dollars scandal. The new government is going after them and charged a number of them.

The governance of any democratic country is primarily made of three active components, namely legislature, executive and judiciary (Editor: In Malaysia it is four: Monarchy one more component). The last is the supreme police man and final arbiter. The point that many missed was who was the guardian of the rule of law? It is the judiciary. The question that many failed to ask was whether kleptocracy would result in a state where judiciary was abiding to the rule of law? Kleptocracy is not known in any part of the world where judicial integrity is at its top.

A sitting Court of Appeal judge, Datuk Dr. Hamid Sultan, well said, in a recent international law conference in Kuala Lumpur, that ‘Kleptocracy’ was the result of ‘Policital Rowdyism + Judicial Passivism’. Then he went on to define Rodyism as acting in breach of the rule of law and Passivism as not acting as per the oath of office. It takes two hands to clap.

In countries with a judiciary upholding the rule of law, the executive and politicians have not been known to easily break it. This is because any member of the public can openly speak of that, create public awareness and even bring public interest litigation to fix any intrusion into the rule of law thereby reinstating accountability through judicial process. When accountability is lost, kleptocracy wakes.

However, in Malaysia, the doors for public interest litigation were nearly shut down with the then Supreme Court decision in Lim Kit Siang’s case against the then Malaysian government in 1988. That was the start of the oxymoron culture in our country whereby government is elected by the public and runs on tax payors’ money but not accountable to the tax payors – the public.

Added to it, the Court of Appeal in Karpal’s case, in 2012, had so widened the meaning of ‘seditious tendency’ under the Sedition Act 1948 that in effect curbed any criticism of the government, which decision was affirmed by the Federal Court. That was not all. In the case of Yuneswaran, the Court of Appeal, in 2015, held the restrictions to ‘peaceful’ assembly imposed by s. 9(5) of the the Peaceful Assembly Act 2012 to be constitutional and valid, while a different corum of the Court of Appeal (made of Justices Mohamad Ariff Yusof, Mah Weng Kwai, Hamid Sultan Abu Backer) in Nik Nazmi Nik Ahmad had declared the s. 9(5) to be unconstitutional and invalid for contravening the freedom of assembly guaranteed by the Federal Constitution in Art. 10. Cases such as Karpal and Yuneswaran  protected the government from being effectively challenged or questioned, that has resulted in what we now complain ‘kleptocracy’.

Since the inception of the new government, numerous serious allegations had been levelled against the judiciary. Dato’ Seri Anwar said that there was a miscarriage of justice in his sodomy cases as a ground for his claim for royal pardon. This statement was no surprise to the legal fraternity given that, among others, he was awarded an unprecedented sentence of 5 years for a private offence of this nature.

Justice Datuk Dr. Hamid Sultan openly said in the International Malaysia Law Conference 2018 that he was reprimanded by a top judge for his dissenting judgment in the Indira Gandhi conversion case in her favour. He also said that, after this case, he was not assigned to hear any cases of constitutional or public importance, noting the practice at apex courts to fix corums to achieve desired result. He added that great judges, such as Dato’ Mohamad Ariff, Dato’ Mah Weng Kwai and Dato’ Mohd Hishamudin Hamid Sultan, who were committed to uphold the oath of office had to pay the prize for that – they were not elevated to the Federal Court when due.

Then followed the public statement made by a member of the Bar, coupled with his police report, that he was aware of interference in Karpal’s sedition case at the Court of Appeal, that turned what would be an aquittal into conviction by majority decision.

Following all the above, the Chief Justice took it upon himself to investigate the allegations but shortly after that came out with a result that the investigations had been terminated or suspended for certain stated reasons. This led Karpal’s daugther Sangeet to sue the Chief Justice for allegedly failing to defend the integrity of the judiciary, action now pending before the KL High Court. In light of all these, the Bar Council twice asked for a RCI to be commissioned.

Many of the judges implicated in the said allegations are still sitting in the apex courts. No RCI has been commissioned. None of them have come forward to clear any of the allegations. None of them have been charged. It is not known what investigation has been carried out and why the Attorney General has not preferred any charge until now, despite the so serious accusations. Comparatively, recently, when serious accusations of power abuse scandal, judicial interference, etc were levelled against the ex-Chief Justice of South Korea, the prosecuting authority there charged him without any exception.

It will be comical to put the entire blame for breach of rule of law and for kleptocracy on the ex-government and its politicians without seeing the full picture of how that was facilitated. Pressing the ‘reset button’ merely at the political arena, leaving out the judicial arena, will not yield result. It was part of the Pakatan Harapan’s manifesto to revamp the judiciary, endorsing the need for the same. But that was not done yet, any changes in the judiciary so far being cosmetic only.