Malaysian Sultan Blasts Judiciary
In an almost unprecedented speech, Malaysia’s Sultan of Perak, Azlan Shah, one of the country’ s most respected figures, has hit out at the country’s increasingly tainted judicial system. “We must be ever mindful that written constitutions are mere parchment pieces,” he told a law conference in Kuala Lumpur Monday. “Without a reputable judiciary ‑ a judiciary endowed and equipped with all the attributes of real independence ‑ there cannot be the rule of law.”
Azlan Shah's speech appears to be dramatically deepening the divide between the country's nine hereditary rulers and the government. Since the country won independence from the United Kingdom in 1963, the sultans, known as the Conference of Rulers, have mostly stayed out of politics. Whatever power they had was largely taken away from them by former Prime Minister Mahathir Mohamad in a series of actions in the Dewan Rakyat, or parliament, in the 1980s, leaving them with only the power to appoint judges.
They usually rubber-stamped the government’s recommendations until earlier this year. But the conference has been in a behind-the-scenes brawl with the government of Prime Minister Abdullah Ahmad Badawi over the judiciary for months, starting when they rejected the government’s choice for the position of Chief Judge of Malaya (the old name for the country is still used for the court). The position, the judiciary’s third-ranking post, has been vacant since Siti Norma Yaakob, the previous occupant, retired earlier this year.
Now, with Ahmad Fairuz Sheikh Abdul Halim, the chief justice, due to retire Friday, the sultans are refusing to give him a six-month extension while the government finds a new chief judge. Fairuz, who will turn the compulsory retirement age of 66 on Thursday, is the subject of a heated scandal over judicial appointments that erupted when opposition leader Anwar Ibrahim held a press conference in September make public a video clip purportedly showing well-connected lawyer V K Lingam in a 2002 telephone conversation with Fairuz on the other end, talking about using his political clout to get tame judges promoted.
With the government facing mounting pressure over the scandal, human rights groups are demanding an independent Royal Commission of Inquiry to investigate the case.
The squabble has spread beyond that case to many others and appears to be a growing part of a malaise with Abdullah Badawi in general. Some 2,000 lawyers marched on Putrajaya, the country’s administrative capital south of Kuala Lumpur, in September to demand that the judiciary be cleaned up. A bigger rally is scheduled for November 10, at which as many as 100,000 people are expected to attend.
“On the ground, people are very unhappy with Badawi's administration,” a Malaysian lawyer told Asia Sentinel. “His perceived ineffectiveness is one problem. But the cost of living is rising for everything from flour to sugar. Corruption is growing worse, crime is on the rise. Sensational crimes are definitely up and more daring. Three cops were shot dead in a drug bust a few days ago. That's unheard of in Malaysia. Cop Killers!”
As a result, the lawyer says, people are starting to turn to the royals, something unheard of since independence. However, he adds, the United Malays National Organisation, the biggest ethnic party in the country and the leading power in the ruling national coalition, “is getting weary of the sultans challenging their power.”
Azlan Shah, the former lord president of the Supreme Court also served for five years as the country’s king under the constitutional rotating kingship. He is by far the most distinguished of the nine sultans and he is said to be the force behind the Conference of Rulers' denial of Fairuz’s additional appointment. In his speech to Malaysia’s 14th Law Conference Monday, he told the assembled legal community that the judiciary “loses its value and service to the community if there is no public confidence in its decision-making.”
“Sadly, I must acknowledge there has been some disquiet about our judiciary over the past few years and in the more recent past. Recently there have been even more disturbing events relating to the judiciary reported in the press,” he added, calling attention, although not by name, to a book by NH Chan, a former appellate court judge, citing erroneous and questionable judgments delivered by the higher courts in a chapter under the heading "When Justice is Not Administered According to Law".
“I am driven nostalgically to look back to a time when our judiciary was the pride of the region, and our neighbours spoke admiringly of our legal system,” he continued. “We were then second to none and the judgments of our courts were quoted confidently in other common law jurisdictions. As Tun Suffian, a former Lord President of the then Federal Court, said of the local judges who took over from the expatriate judges after Merdeka (independence) that transformation was without ‘any reduction in standards.’”
Nothing, the sultan said, “destroys more the confidence the general public, or the business community has in the judiciary than the belief that the judge was biased when he decided a case, or that the judge would not be independent where powerful individuals or corporations are the litigants before him. 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.”
He pointed to a recent World Bank survey on resolution of commercial disputes that ranked Malaysia 63rd among 178 countries, and a report by the US State Department warning American businessmen that cases before the Malaysian courts take inordinate amounts of time to be adjudicated. One case of medical negligence, he said, took 23 years to reach the Court of Appeal.
“Countries such as Singapore and Hong Kong, who have a similar legal system and who share similar laws, and whose judges and lawyers are trained as ours, are ranked in these surveys as amongst the best in the world (Hong Kong is placed first and Singapore ranks fourth). The reason is obvious: these countries have undertaken major reforms in their court structure and procedures and have introduced more efficient and transparent commercial courts so as to attract the foreign investor.”
Noting the alleged conversation between Lingam and Fairuz, once again without naming names, he said that “the relationship between judges and lawyers must be a proper and correct one. As I have said earlier, judges are supposed to be no respecters of persons who appear before them. This rule applies not only to litigants but also to lawyers. It is not just a matter of prudence and good practice, but fundamentally one of ethics.”
He also alluded to the recent race-based case of Lina Joy, a Malay woman who was denied the right to change her religion from Muslim to Catholic when the courts referred the matter to a religious court, saying that “We in Malaysia live in a multi-cultural and multi-religious society. Our founding fathers accommodated this diversity into our constitution that is reflected in the social contract, and saw this diversity as strength. Judging in a diverse society is not an easy task.”
Judges in Malaysia, he said, “must be sensitive to the feelings of all parties, irrespective of race, religion or creed, and be careful not to bring a predisposed mind to an issue before them that is capable of being misconstrued by the watching public or segments of them.
“I have found it necessary to speak at some length on these matters because it is my earnest hope that the Malaysian judiciary will regain the public’s confidence and it will once again be held in high esteem as it once was held.”