12 December, 2008

Hopes ride high for judicial reform in Malaysia

With the emergence of several landmark court rulings this year, there is renewed hope among Malaysia's legal fraternity that the judiciary system, more often than not the object of scorn and ridicule, is beginning a long-awaited path to reform. Years of controversies surrounding the judiciary have led to an all-time low public opinion of judges and the courts.

The first major crisis faced was 20 years ago in what is remembered as the Judicial Crisis of 1988, when ex-prime minister Mahathir Mohamad sacked six top judges from the Supreme Court following a series of clashes between the former leader and the judges.

Three of the sacked judges were eventually reinstated, but the crisis gave clear warning to other members of the judiciary to toe the line.

Public opinion of the judiciary suffered further when in 1996, a letter was circulated alleging judicial corruption. Government investigations later claimed to have found no proof of the alleged wrongdoings.

Observers believe that the 1988 crisis marked the end of judicial independence from the executive powers, and the start of a string of questionable judgments in high profile cases.

One such case was the trial of former deputy premier Anwar Ibrahim on charges of sodomy and corruption.

Anwar was sacked by his former mentor Mahathir in 1998, and subsequently jailed for sodomizing his former driver and then using his power of office to try and cover up his wrongdoings.

Anwar's supporters, as well as international and independent observers at his trial, criticized the manner in which the hearing was conducted and claimed there were several instances where the presiding judge appeared to have favoured the prosecuting government.

Anwar's sodomy conviction was later reversed, but only after he served six years in jail. His appeal against the corruption charge is still pending.

"The Judicial Crisis of 1988, that's where the rot started," said Ambiga Sreneevasan, the president of the Bar Council.

Last year, a videotape surfaced purportedly showing a veteran lawyer with links to top government leaders allegedly fixing the appointment of senior judges in a phone conversation with a former chief justice.

The ensuing outrage caused the government to form a Royal Commission of Inquiry into the videotape contents. The probe revealed that the process of judicial appointments was open to manipulation by the executive branch and private citizens.

Pledges of reform by the current government under Prime Minister Abdullah Ahmad Badawi have been largely met with cynicism as critics say the lack of political will to clamp down on the corruption is the major hindrance.

"Reform is not just the question of the integrity of the judiciary. It also includes the issue of competence. How do we select our judges?" said human rights lawyer and constitutional expert Malik Imtiaz.

"The judiciary doesn't only need to be free from influence, but also the appointment process has to be set apart from the executive powers," Imtiaz said.

"I'm not wholly sure there is the political will to carry this through," he said.

However, even critics have acknowledged that several landmark rulings this year alone may signal a long-awaited return to judicial integrity.

On November 5, a court decided to release a controversial internet blogger who had been jailed without trial on allegations that his anti-government writings were a threat to national security. The court ruled that the government acted unconstitutionally.

The ruling was hailed by the legal fraternity and rights activists as a sign that the country's judiciary was not serving as a tool of the government.

"At a time when public confidence in the independence of the judiciary has taken a beating and when promised reforms have yet to take place, the decision gives hope that our judiciary has acted and will act with courage, integrity and independence when the liberty of an individual is threatened by the arbitrary use of power," said Ambiga.

In late November, the High Court overturned the conviction of human rights activist Irene Fernandez, whom the government accused of false reporting that illegal immigrants were sexually, physically and mentally abused in Malaysian detention centres.

Despite the fact that the acquittal came after a 13-year battle, the ruling was hailed as another milestone in judicial independence.

"There's always hope," said Imtiaz.

"As long as there are people who believe in the sacred institution of the judiciary, there will be hope."




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