Rais Yatim of the view that there is no rule of law and  no independence of judiciary in Malaysia and Parliament has failed to protect fundamental freedoms 

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Speech
- forum "Justice at Crossroads"
by Lim Kit Siang 

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These questions concerned the administration of justice in Malaysia, three of which deal specifically the rule of law, the  independence of the  judiciary  and  Parliament’s role in defending the rule of law  and  fundamental freedoms.

I now have Rais’ answers to these three questions, as follows:

Question 1: Whether in Malaysia there is no rule of law but only rule by law - resulting in the wide gulf between law and justice to the extent that courts of law have ceased to be courts of justice.

Rais’ answer:
 

The future for the rule of law and human rights in Malaysia is dismal. Rule by law and not rule of law supersedes and takes priority in most aspects of ruling the people. The decline of the rule of law and human rights in Malaysia can be traced to the corrupted notion of democracy which the executive holds. It has been suggested that in Malaysia human rights and the rule of law are precepts peculiar to the West which, so the imputation goes, it is inappropriate to apply in Malaysia.  This should be seen as a severe distortion because human rights and the rule of law are no longer within the confines of the geo-political parameters of each country. They are now universal rights.

Question 2: Whether in Malaysia there is no independence of the judiciary.

Rais’ answer:
 

The independence of the judiciary is merely illusory.

The judiciary has lost its tussle with the executive in controlling arbitrary executive power.  The executive that directly alters the affairs and status quo of the judiciary in a manner that the Malaysian executive has done is indeed a rarity and its mode of attack on the Malaysian judiciary in 1988 is not known to be practised in the liberal democratic world.  But again one must understand, Malaysia is not a liberal democratic country.

The executive has come to occupy a truly supreme position that renders the other segments of government - Parliament and the judiciary - subservient to it.

Question 3: Has Parliament failed to protect the rule of law and fundamental freedoms and instead aided and abetted in their serious violations?

Rais’ answer:
 

With an overwhelming majority in Parliament of the same political party since Merdeka in 1957 it has now become a misconception to regard the Malaysian Parliament as the safeguard of rights and freedoms. In many respects that institution is the issuer of licence to violate freedoms.

These are Rais’ considered views after research and study from 1991 and 1994, and they were extracted from his doctoral thesis at King’s College, University of London which  are published in 1995 under the famous title, "Freedom under Executive Power in Malaysia".

I am particularly drawn to his lament about the culture of fear and the lack of understanding and appreciation of the rule of law by the Malaysian people. Rais  wrote:
 

"Equally perplexing has been the seemingly calm and patronising attitude of the Malaysian people in facing and accepting these excesses vis-a-vis their rights. It is as if Malaysians have lost touch with their basic rights in a country that prides itself in being democratic and leading the voice of liberation within the third world countries.  Even with the increasing number of the young and well-educated in the country there appears to be little interest in the importance of civil liberties. We have noted how excessive executive powers, omnipresent and far-reaching as they have been, have rendered constitutional freedoms meaningless. And yet there appears to be little or no resistance from the man on the street to counter these inroads.  There can be only one explanation to this: the culture of fear has set in. The underlying fear of executive reprisal has slowly but surely reduced Malaysians into being reluctantly submissive in many respects of their daily life."

The arrest of Karpal, Marina, Ezam, Zulfifly and Cheah mark a massive assault on the rule of law,  press freedom, the right to information, fundamental liberties and democracy and Malaysians must stand up to send a clear signal to the powers-that-be that this the last straw that should serve as a catalyst for a national awakening among Malaysians about the importance of the rule of law and fundamental liberties in the  Malaysian nation-building process.

Karpal’s arrest violates  international principles on freedom of expression and democracy like the Johannesburg Principles 1995  as well as all international standards and norms  on the role of lawyers such as  the 1990 United Nations Basic Principles on the Role of Lawyers.

Principles 6 of the Johannesburg Principles provides three situations where  expression may be punished as a threat to national security  but they do not apply in Karpal’s case, namely  if the  government can demonstrate that:
 

1. the expression is intended to incite imminent violence;
2. it is likely to incite such violence; and
3. there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

If any of these three situations envisaged by the Johannesburg Principles existed in Karpal’s case, he should have been arrested at the relevant time  he said the offending terms in court, and not well after the general election.

Article 16 of the Basic Principles on the Role of Lawyers set out "Guarantees for the functioning of lawyers", providing that governments shall ensure that lawyers "are able to perform all  of their professional functions without intimidation, hindrance,  harassment or improper interference" and "shall not suffer, or be threatened with, prosecution  or administrative, economic or other sanctions for any action taken" in performance of their  professional duties.

(29/1/2000)