LETTER | The previous government fell at last year’s general election and the general public perception has been that its key politicians were largely kleptocrats who bent and broke the rule of law resulting in multi-billion dollar scandals. The new government is going after them and some have already been charged.
The governance of any democratic country is made up primarily of three active components, namely the legislature, executive and judiciary. The last is the supreme policeman and final arbiter. The point that many missed is who is the guardian of the rule of law? It is the judiciary.
The question that many failed to ask was whether kleptocracy could have evolved in a country where the judiciary was abiding by 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, Hamid Sultan said in a recent international law conference in Kuala Lumpur that “kleptocracy was the result of political rowdyism and judicial passivism”. He defined rowdyism as acting in breach of the rule of law and passivism as not acting according to the dictates of the oath of office. It takes two hands to clap.
In countries where the judiciary upholds the rule of law, the executive and politicians do not easily transgress. This is because any member of the public can openly speak about it, create public awareness and even bring public interest litigation to fix any intrusion into the rule of law thereby maintaining accountability through the judicial process. When accountability is lost, kleptocracy flourishes.
However, in Malaysia, the doors to public interest litigation were nearly shut with the Supreme Court decision in the case of the Government of Malaysia vs Lim Kit Siang in 1988. This marked a shift to a restrictive approach in terms of the rules of standing which a public interest litigant is required to meet before his action against the executive can be maintained.
It was arguably the start of the oxymoronic culture in our country whereby the government is elected by the public and runs on taxpayers’ money but is not really accountable to the said taxpayers. This was further reinforced by decisions in Karpal Singh’s sedition trial in 2012 and a restrictive judgement on peaceful assembly in 2015. These decisions protected the government from being effectively challenged or questioned and resulted in what we now complain about - "kleptocracy".
Since the inception of the new government, numerous serious allegations have been levelled against the judiciary. Anwar Ibrahim maintained there was a miscarriage of justice in his sodomy cases as a ground for his claim for a royal pardon. This was no surprise to the legal fraternity given that he was awarded an unprecedented sentence for his offence.
Justice Hamid Sultan openly said in the International Malaysia Law Conference last year that he was reprimanded by a top judge for his dissenting judgment in the Indira Gandhi conversion case in her (Indira's) favour.
He also said that after this case, he was not assigned to hear any cases of constitutional or public importance.
At one point the chief justice took it upon himself to investigate allegations that the judiciary had been compromised but the investigations were soon terminated or suspended. This led Karpal’s daughter Sangeet to sue the chief justice for allegedly failing to defend the integrity of the judiciary. In light of all this, the Bar Council has twice called for a royal commission of inquiry.
Many of the judges implicated in the said allegations are still sitting in the apex court. No RCI has been commissioned. None of them has come forward to clear any of the allegations. None of them has been charged. It is not known what investigations have been carried out and why the attorney-general has not preferred any charge until now, despite the so serious accusations.
Comparatively, when serious accusations of judicial interference were made against the ex-chief justice of S Korea, the prosecuting authority there charged him swiftly.
It will be a fallacy to put the entire blame for breaches of rule of law and for kleptocracy on the ex-government and its politicians without seeing the full picture of how it was facilitated. Pressing the "reset button" merely on the political sphere and ignoring the judiciary will not yield results. It was part of the Pakatan Harapan’s manifesto to revamp the judiciary but that has not been done yet.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
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