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.
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.
We saw back in 1988 how the institution was dealt a fatal blow by the powers that be then and we saw in 1998 how it was not just me who was given a black eye but the judiciary itself, thanks to the perverse decisions of two High Court judges then. These are the same judges who now warm the seats of our Appellate courts, enjoying the fruits of their perversity, as it were. Is it then any wonder that today history is again repeating itself?
Judiciary Independence
We would have thought that the lessons of March 8th 2008 would have taught the political masters some fundamental truths regarding the legitimate expectations of the people. One of which is that the people don’t want to see the judicial process turned into a circus. We are tired of seeing judges as mere puppets dancing to the tune of the political masters.
The latest instance of this judicial aberration can be seen in the decision just last week in respect of the suit filed by the legitimate Pakatan speaker over the Perak debacle on May 7, 2009. The court held that in accordance with Article 72 of the Federal Constitution, “the validity of any proceeding in any state assembly cannot be questioned in any court”. Well, that indeed sounds very impressive and laudable in the context of respecting the concept of the separation of powers. But then why is it that in the same breath the court also held that the legislative assembly’s decision to remove the speaker and to appoint someone else was conclusive and had been fairly determined by the state assembly?
I have heard of judges making wrong decisions based on a misinterpretation of the law but I don’t recall judges blowing hot and blowing cold in the same judgement. In coming to this conclusion, we may say that the court has sunk into the abyss of judicial reasoning displaying in the process clear symptoms of judicial schizophrenia. The question now is not whether we should challenge such a decision. Indeed we must, but I believe even more importantly, there is a moral duty to speak out against such a gross travesty of justice.
In practical terms, judicial independence must mean protecting citizens against illegitimate usurpation of power. Indeed, the travesty of justice that continues to plague us in the Perak debacle remains a stark reminder that the separation of powers envisaged in a democracy remains largely a mirage in the constitutional landscape.
The Judiciary in a Real Democracy
The topic of our gathering tonight is the launch of this important book and recognition of its author, a dear friend of mine, Pawancheek Marican. It is of course rare to find in today’s Malaysia such a comprehensive account of an event so controversial in our nation’s history. Applying no varnish to the entire sordid affair I believe this text will be a signpost for generations of Malaysians on the dangers of absolute power. He has also paid a great tribute to the the legal team that defended not just me but an entire nation against the onslaught of executive power run amok. For those present and absent who had a hand in the trial and particulary the lawyers, words cannot convey the deep gratitude that I, Azizah and my family have for their work – which I might add is not yet done.
Now with reference to the trials prosecuted against me, as so well documented in Pawancheek’s book, suffice it to say that the judges were essentially under the thumb of the Executive. There is a saying that when the law is subjugated to the chicanery of politics, that is, where the judges are subservient to the political masters, the administration of justice becomes both farcical and perverse.
In a real democracy, the use of judicial high-handedness to bring down a political opponent won’t be tolerated because of the existence of a transparent court system and a process of accountability. In a sham democracy, however, judicial highhandedness is given free rein and transparency is irrelevant. Those prosecuted for political reasons are thus condemned even before the trial begins. It is not just about me or some of our friends here today.
There are now a few other high profile cases pending. For example, the persecution of Raja Petra will certainly be top on the list of the study on the breakdown of the rule of law. I emphasise the word ‘persecution’ because the manner in which he is being hounded is no longer prosecution but sheer audacious use of blatant state powers in order to bring down one one of the government’s most strident and vocal critics. These actions violate the dignity and honour of all Malaysians.
Instead of being the ultimate guardians of our liberty from executive tyranny, the judiciary is then transformed into principals in the destruction of the very process it was entrusted to protect. Indeed, the undermining of judicial independence by political interference has negative repercussions not only on society at large but on the nation as a whole. Very often the inability to assert independence seems to be inversely proportional to the degree of integrity. Judges must display competence and expertise and they must be above suspicion.
We are by now very familiar with the videotape of the “correct, correct, correct” judicial scandal but have we seen any action yet? And where judges are not seen to be absolutely above board, the establishment of equity and fair play in commercial and economic deliberations will be largely illusory. This would also explain why Malaysia continues to occupy dismal positions in the corruption index, not to mention how much further we have sunk in competitiveness.
Justice and the Discretion of Law Enforcement Agencies
Another crucial criterion for the rule of law is that the discretion of law enforcement agencies must not be allowed to pervert the cause of justice. We know that not only the judiciary but the police and the Attorney General’s office play essential roles in the preservation of the rule of law, failing which they are easily used to pervert the law. Selective prosecution, police highhandedness and arbitrary arrests, and now of course the actions of the MACC, all collectively serve to pervert the cause of justice rather than uphold the rule of law.
And in all these, the ruling UMNO government is not only complicit but blatantly instrumental in perpetuating these gross transgressions. The upshot is harassment, oppression, and in most cases, the extermination of the small fry while the large predators continue to roam free. The Pakatan controlled government of Selangor will remain a classic case study of the systematic abuse by Federal law enforcement agencies under the thumb of the ruling federal clique.
The arrogance of power has rendered them completely impermeable to public opinion. The extension of the IGP’s contract just last week flies in the face of the overwhelming chorus of objections from the people. The increasing incidences of custodial deaths and the blatant bias of the MACC in carrying out its duties are but two examples of this breakdown in the rule of law.
The very root of this problem goes to the question of accountability. We have seen what it is like. Without accountability these agencies literally get away with murder. They are certainly getting away with corruption. The instances are too many to enumerate but it would be accurate to say that the amounts involved get bigger by the year. We know about the billions earmarked for the stimulus packages but where has the money gone? How much longer can we allow public financial resources to be used in complete disregard of the rules of accountability?
The proper application of the rule of law would have meant that those who occupy the seats of power must be subject to scrutiny and held accountable for their misdeeds. They must realise that power and authority are but duty and obligation and not right and privilege. Will they ever be brought to justice?
In the final analysis, the idea of justice to man is so central to the rule of law that you can’t have one without the other. Corruption and the abuse of public office, the absence of transparency in financial dealings, the perversion of justice by the law enforcement agencies and the dereliction of judicial duty – these are indeed characteristics of the rule of men, and not the rule of law. The trappings of democracy cannot mask this perversion.
Reform is way overdue but on the eve our our Malaysia Day celebrations let us renew our commitment to freedom and to justice.
Thank you.
Read also: Singapore Law Society Head revives issue of Role in Reform
By no means is this the only example I can use from this blog, but this article is one that clearly enunciates TOC’s editorial slant, and that is of political CENTRISM.
Who cares about being ‘mainstream’ when that is clearly a steeplejacked word to descibe an a class of people who consider themselves to holier, and mightier than thou?
‘Mainstream’ is a value judgement and loaded with emotion; it’s coinage does not conform to the system of using the objective criteria from political science to determine CENTRISM, which so happens also to be the political position that the MAJORITY in freed-up polities supports.
I don’t care if Singanews wants to declare itself to be mainstream. Let’s see if they do the *centrist* thing instead and attack the PAP government for its non-adherence to constitutionalism, the rule of law, and the attendant rationality in legislative processes and law enforcement.
Good for you TOC for taking a centrist position!
Singaporeans are very strange.
They ignore or even PUI on their own heroes and then adore their counterparts in other countries, near or far.
Injustice is right here at home. You don’t need to look elsewhere.
Example: Maruah protested for Burma at the Speakers’ Corner.
How about Singapore’s judiciary?
http://yoursdp.org/index.php/perspective/special-feature/631-csjs-closing-submissions-for-contempt-of-judiciary-2006
When judiciary is gone, tyranny takes over. We have seen of late more and more criminal convictions without fair trials including police disorder and court disorder (kangaroo boys) and the take over by IMH for retaining and restraining without trials.
I agree with Agent008.
I do not believe the judiciary acts fairly in quite a number of cases. In some cases, convicted criminals can get reduced sentences simply because of unsubstantiated “mitigating” factors during appeal.
Bring back Yung Pong How, at least he is not a softie when dealing with criminals.
Check this out http://www.apill4life.blogspot.com.
Hmm?
Even Anwar attempted to circumvent the court’s power in his hey days. Who is he to declare for fair judiciaries now?
Dear Ben
‘Even Anwar attempted to circumvent the court’s power in his hey days. Who is he to declare for fair judiciaries now? ‘
ANWAR HAS REPENT LA! WHO ARE YOU TO LINK HIS PRESENT ACTIONS TO HIS PAST! I am now working in Malaysia and I know it from sources close to me. You wrote like the lawless, undemocratic LKY regime out to distort and mislead our poor singaporeans! I think you are paid to write this! Reveal yourself.
Better than in SG, there is absolutely no nimpartiality in our court when comes to political “defamation” cases
Readers,
am i right to assume :
Law
1. is Rule Based.
2. can be changed thru repealing.
3. is set by a person if not a group of persons.
?
But is law = morality?
Is law = ethics?
can someone enlighten?
@Albino:
Laws are set by those in power, and while Law *can* reflect the accepted definition of morality, ethics and justice as defined in the hearts of a population, it is not necessarily so – it all depends on how those in power are one with those they rule over.
Take the Burmese Junta as a example. Recently they convicted democracy leader Aung San Suu Kyi for “breaching house arrest conditions”; even though it was due to an uninvited guest who committed the infringement without her will. Judgment was passed in a court of law, which found her guilty. It was said to be made under Rule of Law. But is it just? (could she have prevented it?) Is it moral (does the public agree with it?) and ethical (is the judgment not-political in nature instead of for the protection of the people – which should be the basis of laws – for the good of the people it was written for)
An even more hard-hitting example would be that of the Taliban during their rule from 1996-2001. Their treatment of their people and how they punish offenses are certainly cringeworthy – but they are doing it as part of the law they set down. It is even noted that there is relative peace within the country during their period of rule, compared to the fighting before and after their regime. But while it was good for the Taliban, was it good for the people? We note that after their rule was broken, many felt more liberated, and acted as such, even despite the increased violence from the in-fighting. So once again, can their law, and indeed, the rule of law in their country be considered moral, ethical and just?
Having gained your own understanding from these examples, I leave you to consider the situation in other countries such as our own.
Albino,
just look at Singapore kangaroo law system, and you can easily find out your answer.
to Albino, Daniel has made a good point.
You can have all the rules/laws in place like say for a football match, But the referee and linesmen can influence the outcome, not forgetting the referee’s decision is final. So you see it is easy to fix the outcome if you have a compliant referee, backup with compliant linesmen. The good thing is that FIFA can ban such a referee but in the case of a compliant judiciary, there is no international body to ban the kangaroo judge.
I hope this rings a bell for you when you look at the way elections system, judiciary, walkover for PrataNathan, voting pattern in parliament, etc are fixed.
Of course I expect you to figure out by “you know who”. LOL
In the eyes of Law,
how equal is a rich man vs a poor man who could not even afford a peanut?
to me, i think it is very equal. of course right?
I am not a lawyer or a judge, but I believe that man y political leader naturally when they are fighting for power they always fight for justice, human rights, against corruption, abuse of power. They will gather people and fight for them. I do not doubt their sincerity. However when they eventually come into power, they start to compromise and now they are fighting to stay in power instead of fighting for what they stand for in the beginning.
Power corrupts. Absolute power corrupts absolutely!!!
So it is important that the rule of law is being exercise in any environment or country. Singapore is no different. We are often being told that Singapore is very unique and that we need stability more than liberty and freedom. These are fear tactics used to silent anyone from questioning the ruling party.
The law should be above the political governance.at all time. This, I felt, will put any political leader on their toes because they are also subjected to the law and they cannot escape the net of justice if they commit any crime, just like everyone.
The recent outburst of MM LKY’s statement that even if an opposition party is to be chosen to govern Singapore in the future, they will not be able to control major government ministries and departments; they will not be able to touch the International reserves as they will not have the president support. THIS IS OUTRIGHT disrespecting Justice, fairness, human rights and democracy. Shame on PAP.
The judiciary does not only have to be independent, but it also must have the confidence of its people, i.e. it has to be SEEN as independent. Ours is a failure on both counts. How to judge like that?
The Rule of Law can only provide JUSTICE if HUMAN RIGHTS are respected.
When the EXECUTIVE(RULER/GOVERNMENT) SETS THE LAWS for the Judiciary to enforce, how could Justice prevail when and if the Executive abuses Human Rights?
No Human Rights equal no JUSTICE and when there is no justice in a country the Judiciary in it can never be independent of the Executive(which legislates the Laws).
patriot
#1,
I feel that TOC IS Mainstream and this is to me.
As I dun buy the news, no money, Blogs like this are Mainstream to me.
Mainstream, just a word, a description.
When it comes to Internal Security Acts, I’m reminded of a comment a friend of mine made during the Mas Selamat incident. He said,”There is absolutely NO PROOF that Mas Selamat is a terrorist. For all you know, he could have been an unlucky sarabat stall owner who happened to run into a very grumpy ISD man on a bad day.”
In principle, I am against things like Internal Security Acts. If a state has a case, they should make it a point of putting the bugger on trial and having evidence presented. However, in the age of mass terrorism, I guess we have to accept that things like this may be necessary.
However, there has to be a limit to how long the state can hold some one. Indefinitely should not be the answer. If you take the example of Mas Selamat, they were holding the bugger for two-years. Surely, in those two-years they could have found enough evidence to put him on trial – but then again, I suppose the world more fun when he walked out of a secured detention facility.