MALAYSIA: IS THE RULE OF LAW UNDER THREAT? CURRENT CHALLENGES FACED BY THE LEGAL PROFESSION

Shubhaa Srinivasan

Partner, Leigh Day & Co

Many within the Malaysian legal fraternity believe that they are operating in a very difficult political climate and the carrying out of their professional duties is being undermined and threatened by increasingly abusive and arbitrary state machinery widely regarded as acting under executive consent.

As a backdrop to the talk, this brief note sets out the international covenants which calls on States to uphold, promote and protect the role of lawyers as an essential element of the rule of law in a democracy, and aspects of Malaysian law which echoes this position. The current sustained assault on the legal profession needs to be understood against Malaysia’s obligations under international human rights law. The note also briefly looks at the 1988 executive assault on the judiciary, which many regard as the watershed event in subjugating the judiciary to the executive will. Since then there has been genuine concern that constitutional changes made in the late 80s has compromised Malaysia’s pledge to uphold the rule of law. The rise of an increasingly unaccountable and abusive executive coupled with the steady weakening of the nation’s justice system has meant public confidence in state institutions and the efficient and predictable application of justice is at an all time low. This has led to sharp criticisms against state institutions of enforcement, which are widely seen as abusive and corrupt, the perception of an increasingly arbitrary and unaccountable executive, the decline of human rights in the country, political persecution, erosion of public confidence in the judiciary, and mounting fear in civil society that Malaysia is fast becoming a police state.[1] 

International Law on Role of Lawyers

Since the evolution of international human rights law, equality before the law, the presumption of innocence, and the right to a fair trial are some of the fundamental principles guaranteed by nation states to its citizens in furthering the ends of justice and public interest. Adequate protection of human rights and fundamental freedoms, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession[2]. The right to counsel, access to counsel and state protection of lawyers has been widely regarded as a fundamental aspect in sustaining the rule of law and an intrinsic culture of a free and democratic society.

Denial of access to counsel is regarded as a fundamental breach of international human rights norms. It follows that, in a democracy or a civil society which is committed to upholding the rule of law, it is essential that lawyers are free to practice their profession independently without intimidation, harassment and any undue interference. International law imposes a duty on States to protect lawyers who are threatened as a result of discharging their professional duties; without such obligation a state’s commitment to the spirit of the rule of law would be meaningless in practical terms. The legal profession also has a professional and ethical obligation to protect its members from persecution and improper restrictions and infringements, providing legal services to all in need of them, and cooperating with governmental and other institutions in furthering the ends of justice.

There are several international instruments (emanating from the United Nations) which underscore the right to legal representation in various ways.

·         The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that a detained person shall be entitled to have the assistance of, and communicate and consult with, legal counsel.

·         The Standard Minimum Rules for the Treatment of Prisoners recommend that legal assistance and confidential communication with counsel should be ensured to untried prisoners.

The Basic Principles on the Role of Lawyers adopted in September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders[3] remains the most comprehensive instrument detailing the importance, function and role of lawyers in a modern society. These principles are intended to provide specific substance to the due process guarantees recognised in the International Bill of Rights (principally the Universal Declaration of Human Rights and Covenants such as the International Covenant on Civil and Political Rights). The Basic Principles on the Role of Lawyers requires States, as a central part of their responsibility to protect human rights, to ensure equal access to lawyers (the Preamble, Rules 1 and 5), effective and timely legal assistance (Rule 7) and impose a positive obligation on governments to have in place effective procedures and responsive mechanisms for effective and equal access to lawyers without discrimination of any kind (Rule 2). Other key provisions worth mentioning are:

Rule 16. “Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics.”

Rule 17. “Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.”

Rule 18. “Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.”

The Basic Principles were unanimously adopted by over 100 States represented at the Eighth UN Congress, including Malaysia. There is strong argument that the Basic Principles have normative value by virtue of customary international law (see footnote 2).

The United Nations General Assembly highlighted the importance of these Principles in a Resolution dated December 18 1990 (A/RES/45/166) and invited governments to respect them and take them into consideration within the framework of their national legislation and practices.

Malaysian Law

The Federal Constitution of Malaysia reiterates the nation’s commitment to the rule of law and guarantees an individual’s right to access legal assistance.

Article 8: All persons are equal before the law and entitled to the equal protection of the law.”

Article 5(2): “Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.”

Further legislation specific to the legal profession has developed the above constitutional guarantee, developed professional duties and enabled effective self-regulation of the profession (Legal Profession Act 1976, Legal Profession (Practice and Etiquette Rules) 1978 and Legal Profession (Publicity) Rules 2001. The constitutional guarantees also found expression in the Criminal Procedure Code. 

Despite constitutional and statutory guarantees lawyers in Malaysia are routinely subjected to undue harassment, intimidation and interference by the authorities, such as the security services, police and other law enforcement agencies e.g. the recently set up Malaysian Anti Corruption Commission. This climate of fear and intimidation faced by lawyers in the performance of their recognised professional duties is having a highly corrosive effect on access to justice and rapidly eroding public confidence in the effective delivery of justice.

Assault on the Rule of Law – the 1988 Judicial Crisis

The 1988 judicial crisis is regarded by many as the darkest hour in the history of the Malaysian judiciary and the start of the government reneging from its commitment to uphold the rule of law and protecting the legal profession. It also marks the rise of a culture of executive bias.

The then Prime Minister Mahathir Mohammed (from 1984 – 2003) was known for his frequent attacks on the judiciary, which at the time was still regarded as a robust, independent institution. In the late 80s the judiciary made a series of decisions which, according to Mr Mahathir was contrary to the will of Parliament and the government’s interests. Mr Mahathir publicly criticised the judiciary which he regarded as being “too independent” and not giving sufficient consideration to the will of Parliament in its judicial considerations.

There were number of cases which irritated Mahathir and the government. They were:

·         The case of two foreign journalists, John Berthelsen and Raphael Pura who authored a series of articles on financial transactions of dubious ethical and legal nature carried out by government officials. The Asian Wall Street Journal which published them was promptly banned from the country, and Mahathir in his capacity as Home Affairs Minister had Berthelsen's and Pura's work permits revoked. However, the Supreme Court overturned the cancellation of Berthelsen's work permit because he had not been given a chance to answer the charges of the government. As a result, the ban on the Asian Wall Street Journal was also lifted.

·         In another matter, the Supreme Court used its power of judicial review, and nullified amendments to the Criminal Procedure Code which gave the Attorney-General the power to initiate criminal proceedings in the High Court without first going to a Magistrate's Court.

·         In 1987 the government detained several political dissidents, including opposition MPs without trial under the Internal Security Act (ISA) (Operation Lalang). The High Court granted Mr Karpal Singh’s (a lawyer and opposition MP) application to be released from detention due to technicalities in the way he had been detained. This case was the last straw which saw Mahathir recommending sweeping changes to the constitutional guarantees of separation of powers and the independence of the judiciary.

·         The UMNO case in 1987 which declared the dominant party within the ruling government as illegal and nullifying the parties elections

Mr Mahathir went on the offensive during this time and made public statements in the press which were sharply critical of the judiciary, and even lashed out at ‘black sheep (judges)...who want to be too independent”[4].   

Constitutional Amendments

Following the case against Mr Karpal Singh, Mahathir tabled a series of amendments to the Malaysian Constitution which touched on the role and function of the judiciary. One of the most controversial amendments proposed was changing Article 121 (1) divesting the courts of its inherent judicial powers and jurisdiction and give the courts only such powers as Parliament might grant them.   

In a surprisingly candid reference to the incident, former foreign minister in Mahathir’s cabinet, Datuk Rais Yatim[5] frankly admitted that the removal of the "judicial power of the Federation" from the High Courts after the 1988 judicial crisis "endangered" the constitutional doctrine of the separation of powers.

Rais described the removal of the court’s judicial power as "death strokes to judicial independence", saying that it was "a direct reaction by the executive to the attitude of the courts in certain decisions that went against the government, particularly during the two years preceding the amendment". Few commentators and observers of Malaysian politics would disagree the former foreign minister’s views.

The judiciary, led by the Lord President of the Supreme Court objected to the constitutional amendments citing that it would bring about the inevitable subjugation of the judiciary to the executive. The Lord President, Tun Salleh Abbas was suspended and consequently sacked for misconduct, a decision arrived at by a tribunal which was convened by the Prime Minister under controversial circumstances. Five other Supreme Court judges were suspended, out of which two were later dismissed and three reinstated[6]. The suspension of the judges effectively suspended the Supreme Court and the legality of the Salleh tribunal could never be established. The amendments to the Federal Constitution were carried out.

 

The Malaysian judiciary was the constant subject of a series of adverse criticisms by the international legal and judicial community[7]. Since events in 1988 there have been numerous calls to restore the honour of the victimised judges and to restore the inherent judicial powers of the courts by reinstating the original provision in Article 121 (1) before the 1988 amendment which robbed the judiciary of its independence[8]. There are further calls for far-reaching judicial reform to try and undo some of the damage caused in 1988 in order to uphold judicial accountability, independence, impartiality and integrity, rooting out corruption and establishing a fair and transparent system of making judicial appointments. 

 

However, the Malaysian legal profession is still grappling with a less than independent judiciary, which has also been mired in allegations of widespread corruption, including involving the chief judge of Malaysia, improper associations with senior lawyers and businessmen and fixing of judicial appointments.