Judge Dread in Malaysia

Ahmad Fairuz Sheikh Abdul Halim

In a move that would almost certainly deepen the growing rift between Malaysia’s nine hereditary sultans and the government of Abdullah Ahmad Badawi, it appears that Zaki Azmi, until recently the United Malays National Organisation’s chief legal advisor, may be appointed Chief Justice of Malaysia’s Supreme Court.

Malaysia’s Conference of Rulers, made up of the sultans, was meeting Thursday afternoon on the appointment, which they would have to approve. In the absence of their decision, Abdullah Badawi announced that Court of Appeal President Abdul Hamid Mohamad had been appointed acting chief justice in the interim.

In September, Zaki was hurriedly appointed a judge to the Federal Court, Malaysia’s second-highest court, without ever having served on the bench. Since the country won independence in 1963, the government has carefully avoided appointing prominent members of political parties to the bench. At the time of his appointment, Zaki told reporters he was given only 24 hours to accept. He described his decision to take the job as "national service." It was the first time anyone had been appointed directly to the federal court without making earlier stops at the trial and appellate court levels.

For months, Abdullah Badawi’s government has been on a collision course with the sultans, particularly Azlan Shah, the Perak sultan who served as the Lord President of the Supreme Court, as the Chief Justice position was known previously, and for five years as the country’s king. On Monday, Azlan Shah hit out at the government in a speech to the country's lawyers, saying, “Without a reputable judiciary ‑ a judiciary endowed and equipped with all the attributes of real independence ‑ there cannot be the rule of law.”

Until now, Malaysia’s sultans have not been a particularly aggressive force in the country’s politics or society. Whatever powers they had, except for the power to ratify judicial appointments and a few other prerogatives, were shorn from them by former Prime Minister Mahathir Mohamad in a constitutional confrontation in the early 1980s. Now, however, led by Azlan Shah, the most distinguished of them, there are growing signs that they regard themselves as the country’s bulwark against corruption and Abdullah Badawi's perceived weakness. Their opposition appears to be gaining public approval as well. Adding to the pressure, the Malaysian Bar Council, which represents 12,000 lawyers, has called for a more transparent system of judicial appointments. A week ago, a human rights lawyer handed the king a 5,000-signature petition calling for reforms.

Although the confrontation over the judiciary has gone on for several months, beginning with the sultans’ blocking the appointment of a replacement for the chief judge in the federal court, it has come to a head now because Ahmad Fairuz Sheikh Abdul Halim’s term as chief justice of the country’s highest court comes had come an end. Abdullah Badawi had asked the Conference of Rulers, which ratifies the appointment of judges, to extend his mandatory retirement at the age of 66 while a new chief justice could be found. Although extensions have been automatic in the past, they have refused to do so.

That is because Fairuz has been embroiled in a growing scandal over allegations that well-connected political figures were using their influence to secure the promotion of compliant judges. Reform groups and particularly the country’s lawyers have been demanding an independent Royal Commission of Inquiry to investigate the case. The government responded with its own three-person panel, which has been accused of being a sham. Some 2,000 lawyers marched on the country’s administrative capital in September to demand that the judiciary be cleaned up. A far larger rally is scheduled for November 10, at which as many as 100,000 people are expected to attend in what could be a de facto march against the government itself. There has not been a demonstration approaching that size for more than a decade in Malaysia, since the tumultuous days that culminated with the arrest and ultimate imprisonment of former Deputy Prime Minister Anwar Ibrahim.

Zaki has long represented UMNO, the country’s biggest ethnic political party and the leader of the Barisan Nasional, or ruling national coalition, in court. He was successively the chief legal advisor, the head of the UMNO disciplinary committee and, in 2001, became deputy chairman of the UMNO Disciplinary Board of Appeal.

At the time Zaki was put on the Federal Court bench in September, Mohd Nazri Abdul Aziz, the minister in the Prime Minister's Department, faced extensive questioning in the Dewan Rakyat, or parliament. He said that Zaki was not active as a party member or elected member of the UMNO leadership, but was only involved in hearing disciplinary cases of party members. Zaki’s appointment, Nazri said, complied fully with the provisions of Malaysia’s constitution.

“Everybody knows that Tan Sri Zaki Azmi Zaki is the lawyer for UMNO," said a Kuala Lumpur-based lawyer. "Many other judges have been passed over. Lawyers have marched for the independence of the judiciary while the public has totally lost confidence in the system, and businessmen now prefer the jurisdiction of Singapore courts to govern commercial contracts. Will it never end?"

Lim Kit Siang, the leader of Malaysia’s opposition Democratic Action Party, criticized Zaki’s possible appointment to the country’s highest court in a press statement, saying, “Nobody questions the legal qualifications and capabilities of Zaki, but there are many legitimate questions as to the suitability of his judicial appointment, in particular as Chief Justice. Even if Zaki had resigned from UMNO, at a time when the greatest challenge of the judiciary is to restore national and international confidence in the independence and integrity of the judiciary after two decades of erosion and devastation, will Zaki's further elevation in the judiciary to become the Chief Justice be conducive to such an uphill task which had been the bane of Malaysia's world standing and international competitiveness?”

The reputation of Malaysia’s judiciary has been on a downward spiral since 1988, when Mahathir sacked the country’s Lord President, Tun Salleh Abbas, and two Supreme Court judges and ended the courts’ autonomy. The system largely remained under Mahathir’s thumb until he left power, with the result that a growing number of cases have been decided for reasons other than on their merits, critics say.

In his speech Monday, Azlan Shah said, “Confidence in the judiciary may also be eroded where the business community perceives incompetence in decision-making. A judgment in a banking or commercial transaction that is contrary to the established norms or which is incomprehensible in its reasoning is bound to give rise to suspicion and loss of confidence. It therefore becomes apparent that our attempts to establish ourselves as a leading financial and commercial center will fail if we do not have a competent judiciary to decide on complex commercial disputes.”

In a survey conducted by the World Bank, Azlah Shah said, “on resolution of commercial disputes, Malaysia ranks poorly, 63 amongst 178 economies. A similar report by the US State Department warns American businessmen to be wary of the slow process of adjudication of cases before the Malaysian courts. This is indeed a poor reflection on our courts.”

Several recent cases, particularly the trial of three defendants for the brutal murder of Mongolian translator Altantuya Shaariibuu, have underscored the court’s problems. The three defendants are Abdul Razak Baginda, a close friend of Deputy Prime Minister Najib Tun Razak, and two of Najib’s bodyguards. Long delays and obfuscations in the case have given rise to suspicions that it may end inconclusively. In addition, tycoon Eric Chia, a close friend of Mahathir’s, was abruptly acquitted earlier this year of criminal breach of trust involving RM76.4 million of allegedly tainted funds from the Perwaja Steel Corp.