Justice in Jeopardy: Malaysia in 2000 concludes that the extremely powerful Executive in Malaysia has not acted with due regard for the essential elements of a free and democratic society based on the rule of law.
The report is released today as a joint report of the International Bar Association, the ICJ’s Centre for the Independence of Judges and Lawyers, the Commonwealth Lawyers’ Association and the Union internationale des avocats.
The Report examines the relationship between the Executive, the Bar Council and the Judiciary in Malaysia and finds that in the vast majority of cases which come before the courts at whatever level there is no complaint about the independence of the judiciary. However, in cases which are considered of political or economic importance to the Executive, there are serious concerns that the Judiciary is not independent and this perception is also held by members of the general public. It finds that there has been an increased threat by the government to the institutional autonomy of the Bar and that the relationship between the Bar and judiciary has become strained.
The organizations listed above urge the Government of Malaysia to recognize the independent constitutional position of the judiciary and not to interfere with this independence in any way. Further, they call on the government to refrain from speaking out publicly against the Bar Association and its members. Such actions are of vital importance to the well-being of the entire system of justice in Malaysia.
The report documents the defamation proceedings against UN Special Rapporteur on the Independence of Judges and Lawyers and calls on the Malaysian government and courts to heed the opinion of the International Court of Justice by affirming the immunity of the Special Rapporteur. It finds that the awards of damages in defamation cases are of such magnitude as to be a means of stifling free speech and expression.
The report expresses serious concern about the fairness of the trial of former Deputy Prime Minister, Datuk Seri Anwar Ibrahim, and the independence and impartiality of the trial judge.
It cites the use of contempt proceeding against lawyers practizing their profession as a serious obstacle to the ability of lawyers to render their services freely and concludes that certain provisions of Malaysian legislation are extremely restrictive and well outside the ambit of international standards.
The four organizations recommend, inter alia, that:
- the Government of Malaysia should recognize the independent constitutional position of the judiciary and not interfere with this independence in any way;
- the Government of Malaysia should not threaten or diminish the autonomy of the Bar Council;
- the Judiciary should act and be seen to act with complete independence from the Executive and should do all in its power to counter the harshness of repressive legislation and overbearing actions of the government;
- the choice of judges in high profile cases be carefully considered;
- the Executive should refrain from speaking publicly about a trial before judgment has been delivered;
- a Judicial Services Commission should be established with the function of recommending appointments to the judiciary;
- Malaysia should become a party to UN human rights treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights;
- certain restrictive legislation, including the Internal Security Act (ISA) and the Sedition Act, should be repealed and an independent Law Commission be established to review existing legislation and recommend amendments that are consistent with international human rights law;
- non-government organisations should be able to carry out non-violent activities freely without harassment and should be able to exercise their right to freedom of expression.
The report is based on the findings and conclusions of a fact-finding mission which visited Kuala Lumpur from 17-27 April 1999.
The mission was asked to examine:
- The legal guarantees for the independence of the judiciary in Malaysia and whether these guarantees are respected in practice. The mission was to use as its yardstick the 1985 UN Principles on the Independence of the Judiciary.
- The ability of lawyers to render their services freely. The mission was to use the 1990 UN Basic Principles on the Role of Lawyers as a yardstick.
- Any impediment, either in the law or in practice, that jeopardizes the proper administration of justice.
The mission met a wide variety of persons concerned with the administration of justice in Malaysia including the Chief Justice, President of the Court of Appeal, Deputy Minister in the Prime Minister’s Department, officers of the Bar Council of Malaysia, UN Special Rapporteur on the Independence of Judges and Lawyers, senior lawyers and representatives of non-governmental organizations.