Malaysian Justice is a Waiting Game
Malaysia's shambolic judicial system, in which both criminal and civil cases can take years to be decided, is under the spotlight again, this time over a lengthy delay in the spectacular murder trial involving a prominent Malaysian political figure accused of the gruesome murder of his Mongolian mistress.
The trial of 46-year-old political analyst Abdul Razak Baginda and two elite police unit officers for the gruesome murder of Mongolian beauty Altantuya Shaaribuu won't start until March 10, 2008, leaving the three defendants in Kuala Lumpur's sweltering Sungai Buloh Prison for at least a year while they await the earliest possible date available for the hearing by the High Court.
Malaysian officials like to say that their system is immune from the kind of political manipulation and inefficiency that mars virtually all of Southeast Asia's legal systems. But the delay has again pointed out to observers that the country has plenty in common with neighbors when it comes to clogged courts and questionable judges. It can take years for both criminal and civil cases to be decided and judges are swamped with old cases waiting their turn in the dock.
At a bail application hearing earlier this month, Abdul Razak's request for a speedier trial was put to Judge K.N. Segara, whose own backlog stands at 135 cases stretching to 1999. Abdul Razak would have to wait his turn, despite the fact that the case involves a political figure with ties to the ruling party.
Abdul Razak is hardly alone. Some 13,000 defendants remain in jail awaiting trial, not least because of a chronic shortage of judges. Malaysia has only 2.4 judges per million citizens, compared to 10.5 in India, 57.1 in Australia, 51 in the United Kingdom and 75 in Canada.
According to a 2006 study of the court system by the European Union-Malaysia Chamber of Commerce and Industry, Malaysia's judiciary system suffers from low conviction rates and a huge backlog, lengthy delays in charging offenders, inadequate sentencing on the criminal side and high costs and lengthy delays in civil cases. The result is that "infringement matters can take three to five years before going to trial and final judgments are often worthless."
It is a system that has been saddled with scandal and inefficiency ever since 1988, when then-Prime Minister Mahathir Mohamad sacked Tun Salleh Abas, the highly respected Lord President of the Supreme Court, because of the court's refusal to buckle under on government decisions. The courts took another body blow in 1999 and 2000 when Anwar Ibrahim, the former deputy prime minister, was convicted on what are widely assumed to be spurious charges of corruption and sexual misconduct and sent to jail for six years.
However, it is the daily grind of the court that is costing the country its judicial reputation as well. "It's not because the court doesn't want to hear the (Abdul Razak) case or the DPP (state prosecutor) does not want to prosecute," Judge Segara said. "It's just that nothing will be achieved if it is rushed. Justice will not be served."
But justice often doesn't appear to be served even when it isn't rushed. In July, former judge Syed Ahmad Idid Iyed Abdullah broke a 10-year silence to say he had been forced to resign from the bench after writing a 1996 letter to the then Chief Justice Mohd Eusoff Chin, alleging that 12 judges were implicated in corrupt practices.
The Malaysian reform organization Aliran in 2006 editorialized in its newsletter that "the image of the Judiciary has been severely battered and shattered through the unbecoming conduct and questionable behaviour of some unethical judges. They have insidiously and brazenly destroyed an institution that was in the past viewed with admiration and awe for its high standards of ethics and sound judgments. There is now an urgent need to restore and maintain the dignity, integrity, independence and impartiality of the Judiciary."
Aliran called for the formation of a royal commission "in an honest attempt to restore (the judiciary's) lost respect and confidence and purge (it) of all the negative elements plaguing it."
In addition to corruption, the backlog of cases appears to have been getting steadily worse since 2000, particularly in magistrate's courts. Statistics by Federal Court Chief Registrar Maimun Tuan Mat show that between January and 30 June 2006, more than half a million cases were registered at magistrates' courts nationwide, with 475,000 brought forward from previous years, bringing the total to nearly 1 million. Of these, only about 65 percent were disposed of, she said, leaving nearly 450,000 unresolved cases in the magistrate's court.
For civil cases, the situation is as bad. Some 131,041 cases came to court in 2006 with even more -- 134,537 -- brought forward from previous years. Only 125,712 cases were disposed of, leaving another 139,866 unattended.
Maimun said case loads increased in almost all courts.
Sixteen new High Court judges are expected to be appointed in the near future in an effort to relief the traffic jam nationwide. Chief Justice of the Federal Court, Tun Ahmad Fairuz Sheikh Abdul Halim, said the judges would be mostly posted to courts in Kuala Lumpur and Shah Alam which are in dire need of judicial officers.
There are only 57 High Court judges nationwide. Ahmad Fairuz said seven more Court of Appeal judges would be appointed, bringing the total to 23. The number of Federal Court judges will, however, remain at 15.
Ahmad Fairuz is seeking candidates for the High Court bench but it is not going well. "Persons with aptitude and the right attitude from the private sector are not interested as they would lose their earning capacity," he said.
The crisis in confidence has reached such a level that retired Judge Karam Chandh Vorah, head of the Human Rights Commission of Malaysia, requested an Independent Judicial Commission to assist in identifying candidates.
The commission, he said, "wholly supports the formation of a commission on the selection, appointment and promotion of judges. It's time that we had it. With a commission made up of a cross-section of the legal profession, judges, retired judges, maybe the Attorney-General or his representative, no issue of favoritism can be leveled at any one person."
The proposal however hasn't seen the light of day yet. Instead the government's solution to the problem is a 27 million ringgit e-judiciary pilot project in which courts nationwide would go online.
We are studying the proposal for a nationwide roll-out, with a decision expected in March," Minister in the Prime Minister's Department Nazri Aziz said. The electronic court system, an electronic government (e-government) application, aims to provide the judiciary and government agencies, such as the police, easier access to court documents.
Nazri is confident that the e-judiciary system would bring positive results even for the 13,000 prisoners awaiting case judgments. "With e-courts and, later, video-conferencing, there would be no need for (the accused) to be in court so it will help reduce the number of postponements."
The response from the legal community is lukewarm. A Kuala Lumpur-based lawyer told Asia Sentinel, "You can have increased judges, you can have the e-judiciary but if the bad attitude, indiscipline and standards of the judges and magistrates do not improve, not forgetting the prosecutors and lawyers, and last but not least the administrative officers of the courts, the perennial problem will not go away."