Friday, September 28, 2007

The Malaysian Experience: A Case Study of Non-independent Judiciaries in Asia



Niseko Kutchan


On the surface, Malaysia appears to be a dynamic and progressive South East Asian nation well positioned to achieve great economic heights in the future as other Asian nations within the region continue to produce healthy GDP growth rates. Blessed with an abundance of natural resources and multi-cultural diversity, a superficial overview of Malaysia would suggest that the government has done remarkably well to promote racial tolerance where so many others have failed, and in the process improved the nation’s economy, symbolized by the Petronas Twin Towers and ultra-modern Kuala Lumpur International Airport. Without doubt, the person responsible for Malaysia’s increased recognition on the global scene was the very vocal ex-Prime Minister Dr Mahatir Mohammed, who served from 1981 till 2003. Dr Mahatir and his counterpart Lee Kuan Yew were leading exponents of Asian values, and claimed that the Asian ‘way’ of achieving greater economic prosperity required ‘stable’ governments instead of adopting liberal democratic policies. This reflective note will examine the historical background of Malaysia’s judiciary and developments which led to its current non-independent state, as described in “Constitutional Values in Turbulent Asia” by Lee (1).

Malaysian Legal System – From Rule of Law to Rule by Law

Akin to Australia, Malaysia was colonized by the British empire, and its legal system duly absorbed much of the form and shape of the common law. When Malaysia achieved independence in the 1960’s, it coincided with the Cold War. As such, communist ideology was rampant in the nation, especially among its Chinese residents. At that time, because Malaysia was still under significant British influence (2), it sought to permanently eradicate communism. The Internal Security Act (ISA) was specifically drafted for this purpose by warranting arbitrary detention without trial for persons involved in communism. Although the draconian ISA shook the very foundations of rule of law itself and encouraged the rise of authoritarianism, Western democracies such as America turned a blind eye as long as the government supported its cause by promoting anti-communistic rhetoric (3). As a result, the ISA still remains in force today, albeit for different purported reasons such as protection of ‘national political stability’ and ‘racial harmony’. In fact, it is used by those in power to quell political dissent and limit freedom of expression. Therefore, it can be said that the ISA and other related laws altered Malaysia’s legal and political climate permanently and provided ripe conditions for dictatorial leadership. Although legislative motives were often ulterior, the Malaysian judiciary gave it the benefit of the doubt and did not proceed to rule the ISA unconstitutional. This was to come at a great cost to the independence of Malaysia’s judiciary, as explained below.

Transformation of the Malaysian Judiciary

Tun Salleh – ‘Calibration’

The Malaysian judiciary did not appear to waver against the tide of authoritarianism in the country until the infamous incident of 1988, where the highest judicial officer of the land, Tun Salleh, along with two other senior Supreme Court judges were suddenly removed from office (4). Dr Mahatir was a central figure in the debacle which stemmed from an action challenging the validity of his narrow win over an-intra party rival during the UMNO (United Malays National Organisation) (5). The personal stakes were high for Dr Mahatir and he could entertain the possibility of losing while his case approached its trial date before a full Supreme Court led by Tun Salleh. Acting swiftly by applying political pressure and cunning, Dr Mahatir was able to manipulate the Article 125 of the Malaysian Constitution to architect the removal of Tun Salleh. Judicial officers brave enough to allow an appeal by Tun Salleh were subsequently ‘mysteriously’ dismissed, and replaced by cronies of Dr Mahatir. As such, it is apt that renowned QC Geoffrey Robertson described the episode as one of the most despicable manoeuvres in modern history (6).

Anwar Ibrahim – ‘Validation’

Just when commentators thought that Malaysia had seen its most controversial legal and political episode of the century culminate in the Tun Salleh case, Dr Mahatir pulled another stunt that attracted even more public and international outcry when he had his then deputy Prime Minister Anwar Ibrahim sensationally removed from office in 1998. Ironically, Anwar was hand picked by Dr Mahatir to as his successor, but the two disagreed over how to respond to the economic crisis that gripped the nation in 1997. Many believed that Anwar sought IMF (International Monetary Fund) assistance at the chagrin of Dr Mahatir because the latter was embroiled in rampant corruption and IMF monetary aid procedures first required transparent accounts. Dr Mahatir was growing wary of Anwar’s increasing popularity, especially among the Malays, and eager to protect himself and his cronies. As such, he had Anwar sacked by the day and detained by night, invoking the ISA before Anwar could rally any support. The events that transpired after resembled a legal circus, with Anwar being charged with sodomy (7), adultery and corruption. Adding insult to injury, Anwar was physically abused while in custody, refused habeas corpus and ultimately given a ten year concurrent sentence by Paul Augustin J despite glaring factual inconsistencies that would not satisfy the balance of probabilities, much less prove the case beyond reasonable doubt. Naturally, Augustin J was keen to avoid the same fate that befell Tun Salleh. In response, Anwar’s supporters held large rallies that were quelled by force and even Al Gore (then the US Vice President) brought up the issue and praised the ‘brave Malaysian people who took to the streets’ during an APEC meeting in Kuala Lumpur, further souring US –Malaysian relations.

Future of the Malaysian Judiciary

Both cases illustrated above show that the Malaysian Judiciary has lost its independence. Anwar’s case is particularly disturbing as it represented a blatant violation of human rights, and in a sense validated the efforts of ‘under-the-table’ political dirty work which set the wheels of judicial ‘non-independence’ in motion since 1988. While Dr Mahatir continues to trumpet Asian values and claims that dual-party systems are not tailored for developing countries, he has perverted the meaning of Asian values to effect his own political survival. In the process, as observed by Lee, a non-independent judiciary has been created and this cannot bode well with the confidence of foreign investors who expect disputes to be adjudicated in a just fashion. I believe that the incorporation of Asian values into common law should only manifest in stricter laws and harsher penalties (i.e. corporal, capital punishment, length of jail sentences) and not in a completely biased way of construing the law to the benefit of those in power. To this end, at least there is integrity within the judiciary where fair trials are afforded. The future of the Malaysian legal system does seem bleak and will only serve to drive investors away to other rivals within the region, thus reducing the competitive edge of Malaysia to its detriment.


If Malaysia intends to achieve sustained economic progress, it needs a revamped judiciary. That seems highly unlikely without a change of government because the current system does not facilitate the opportunity for change. Many Malaysians want to avoid a repeat of the 1969 racial riots and bloodshed at all costs and are thus tentative to push for reforms, fearing national ‘instability’. This may have led to educated Malaysians migrating away from home, causing a brain drain. As such, this is a condition other emerging Commonwealth nations can learn from and try to avoid because they share a similar colonial past. The independence of Singapore’s judiciary must also be questioned, but it will experience lesser adverse effects because its demographics and geographical region is smaller so easier to control. However, this does not present a sustainable method of progressing indefinitely as people at the grassroots level will eventually begin to think critically. When enough people share the same sentiments, they will be emboldened to effect change.


1. H.P. Lee, “Constitutional Values in Turbulent Asia” (1997) 23(2) Monash Law Review 375.
2. The British still had economic interests such as petroleum in the nation.
3. H.P. Lee, “Constitutional Values in Turbulent Asia” (1997) 23(2) Monash Law Review 375.
4. Ibid.
5. The leader of UMNO will naturally become the leader of the nation under Malaysian law to reflect local racial demographics.
6. H.P. Lee, “Constitutional Values in Turbulent Asia” (1997) 23(2) Monash Law Review 375.
7. Homosexuality is outlawed in Malaysia.

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