"Justice in Jeopardy: Malaysia in 2000" -  a terrible indictment on the lack of a just  rule of law in Malaysia which should be examined by  Human Rights Commission to restore one of the most important human rights

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Media Statement
by Lim Kit Siang 

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The Human Rights Commission headed by Tan Sri Musa Hitam and which has just been formed should act on this report to restore one of the most important human rights in Malaysia  - the rule of law and a truly  independent judiciary.

"Justice in Jeopardy: Malaysia 2000" is a joint report of International Bar Association, the Centre for the Independence of Judges and Lawyers, the Commonwealth Lawyers' Association and the International Lawyers' Union,  based on a visit to the country in April last year  by three top judges/jurists, namely Lord Abernethy from Supreme Court, Scotland, Justice N. J. McNally, Apellate Judge of the Supreme Court, Zimbabwe and Dr. Rajeev Dhavan, Senior Advocate and a Commission member of the International Commission of Jurists, India.

The 143-page report "Justice in Jeopardy: Malaysia in 2000" concludes that the                  extremely powerful Executive in Malaysia has not acted with due regard for the essential elements of a free and democratic society based on the rule of law,

It finds that in the vast majority of cases which come before the courts at whatever level there is no complaint about the independence of the judiciary. However, in cases which are considered of political or economic importance to the Executive, there are serious concerns that the Judiciary is not independent and this perception is also held by members of the general public.

The report sets out a series of court cases which it says show that the legal system is being manipulated for political ends, including cases where lawyers have been charged with contempt of court or sedition while defending clients. It said problems with the independence of lawyers and judges had only arisen since Datuk Seri Dr. Mahathir Mohamad  came to power in 1981.

It said the Lim Guan Eng v Public Prosecutor case has "led to concern that the judiciary is attempting to silence, not just the Bar, but anyone who criticises the legal system".

It said:
 

"The charges arose out of an allegation of selective prosecution but, as will be seen, the Court of Appeal appeared to see the case as one of criticism of the justice system. It therefore serves as a stern warning to those who criticise the legal or judicial process and raises a suspicion of closeness between the government and the judiciary. The case is also illustrative of the problems arising out of the wide interpretations of the words ‘seditious tendency’ under the Sedition Act, and ‘false news’ under the Printing Presses and Publications Act."

After reviewing the facts and the judgments in the Lim Guan Eng case, the report said:
 

"This episode shows in fact that anyone who dares to criticise the legal or judicial process may have to pay a very heavy price, as did Lim Guan Eng."

Referring to the Court of Appeal judgement that Guan Eng had made "an unwarranted attack on the judiciary", the Report commented:
 

"The Court accepted that it was not judicial policy to muzzle criticism of judges or their judgments but stated that ‘when the criticism exceeds its legitimate bounds and becomes proscribed conduct’, the courts will intervene.  This part of the judgment is difficult to understand. Whatever the appellant did in making the speech he made, he was not attacking the judiciary.

"The case and the sentences imposed have attracted widespread criticism.  We are not surprised.  The view has already been expressed that either the legislation or the courts’ interpretation of it demonstrates undue severity. Later in the report, in Part IV, the repeal of the Act is called for.  With regard to the sentences imposed by the Court of Appeal, frankly, we were dismayed.  Having regard to all the circumstances of the case, it is difficult to see how they could possibly be justified.

"The case has left us with relatively harsh laws which censor public opinion about the working of the legal and judicial system and which merit re-examination. The decision in Lim Guan Eng’s case strengthens rather than mitigates the law relating to publications and seditions.  This feeling was reinforced in the mission’s discussions with the various persons it was privileged to meet.

"The appellant appealed from the Court of Appeal to the Supreme Court but his appeal was dismissed, for some reason, without a reasoned judgment. This case leaves us with a number of deep concerns."

One such concern is the "apparent willingness of some members of the judiciary to try to stifle public comments on the state of the justice system" where "robust criticism is often unwelcome".

It said:
 

"Nevertheless, in a democratic society governed by the rule of law it is important that there should be freedom to express such views and the best response to them is a strong and healthy justice system which can withstand such criticism."
 

The report said:
 

"Although the Malaysian Constitution guarantees important rights, those rights are often deprived of their meaning and force by constitutional restrictions, many of which also deny judicial review of the executive action. A body of restrictive legislation exists in Malaysia that requires major change if Malaysia is to be ruled in accordance with a just rule of law."

In its report, the four organisations urged the Government of Malaysia to recognise the independent constitutional position of the judiciary and not to interfere with  this independence in any way.

Its other recommendations for the restoration of the rule of law and a truly independent judiciary include:
 

• the Government of Malaysia should not threaten or diminish the autonomy of the Bar Council;
• the Judiciary should act and be seen to act with complete  independence from the Executive and should do all in its power to counter the harshness of repressive legislation and overbearing  actions of the Government;
• the choice of judges in high profile cases be carefully considered;
• the Executive should refrain from speaking publicly about a trial before judgement has been delivered;
• a Judicial Services Commission should be established with the function of recommending appointments to the judiciary;
• Malaysia should become a party to United Nations human rights treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and  Cultural Rights;
• certain restrictive legislation, including the Internal Security Act (ISA) and the Sedition Act, should be repealed and an independent  Law Commission be established to review existing legislation and recommend amendments that are consistent with international human  rights law;
• Non-government organisations should be able to carry out non-violent activities freely without harassment and should be able  to exercise their right to freedom of expression

Parliament should also schedule two days for a special debate on the report, "Justice In Jeopardy: Malaysia 2000" which has again put Malaysia in the dock of international opinion as failing to protect and promote a just rule of law and an independent judiciary.

(6/4/2000)