When Nazri says, ‘don’t worry’, start worrying!

The People’s Parliament
We are here, not because we are law-breakers; we are here in our efforts to become law-makers - Emmeline Parkhurst

December 7, 2007

Malaysiakini reports him as saying that ‘there is no law against the fast-track appointment of Zaki. We are not doing something unconstitutional or illegal’.

Nazri said that Zaki is a ’straight fellow’ and that the ‘only reason we roped him in was due to his past performance and his character’.

‘We roped him in’?

Who is ’we’?

UMNO?

His past performance and character?

Could Nazri tell us how the past performance and the character of the seven other more senior Federal Court judges is lacking such that ‘they’ had to ‘rope him in’?

What performance and character, specifically?

Perhaps Nazri is alluding to that referred to by Kim Quek in a Malaysiakini article entitled ‘Judicial rot : From one nightmare to another?’

I quote Kim Quek :

‘Just as the nation is heaving a sigh of relief at the exit of the scandal-ridden Ahmad Fairuz as chief justice, in comes another dubious candidate poised to take his place.

Prime Minister Abdullah Ahmad Badawi’s sudden announcement of the appointment of Zaki Azmi to the second highest post in the judiciary – President of the Court of Appeal – must have jolted and dismayed many who have cherished hopes of judicial reforms following the reluctant retirement of Fairuz.

…In fact, when Zaki was appointed a Federal Court judge in September, he was instantly recognized at home and abroad as the person planted to the highest court to succeed Fairuz, whose request for a six-month extension of service beyond his mandatory retirement on Oct 31 was not accepted by the Yang di-Pertuan Agong. Such instant recognition of Zaki’s mission came from his deep involvement with Umno as a key party player. He was chairman of the party’s election committee, deputy chairman of its disciplinary board of appeal, party legal adviser etc.

As Umno’s legal man, he was involved with the party’s myriad of scandalous financial misadventures that were bailed out by the government in the heydays of Mahathir’s crony-capitalism during the last Asian financial crisis. One prominent example is the RM3 billion loan scam in the disastrous acquisition of Philippines’ National Steel Corp (NS) by Umno’s financial proxy Halim Saad. When the shares of NS became scrap, four top Malaysian banks were made to stomach the entire RM3 billion losses. And Zaki was then a director of the investment vehicle - Hottick Investment Ltd of Hong Kong – which borrowed the RM3 billion and embarked on the acquisition of NS.

Apart from acting as Umno’s nominee, Zaki also has held directorship in scores of major companies including some of the most well known names such as Berjaya, Metacorp, Pan Global, SP Setia, Malaysia Airports, Hume, Matsushita Electric, Pharmaniaga etc. Zaki was reported by Bernama on April 21 this year to have said that his 58% owned Emrail Sdn Bhd, a railway specialist company, had only the government as employer, and that he was earnestly soliciting contracts in the northern and southern portions of the double-tracking project to turn the cash-strapped Emrail around.

Such political and business background would already have made him a poor candidate for any judicial appointment, Zaki is battered by yet another serious handicap – the question of his moral integrity arising from his controversial marriage and divorce from his second wife Nor Hayati Yahaya, who was half his age.Zaki married Nor Hayati in a ceremony conducted by a kadi from Thailand in a textile shop in Perlis in March 2005. They separated three months later. In the messy divorce that ensued, it was revealed that Zaki burned the original marriage certificate to hide the marriage from his first wife. Further, the marriage was ruled by the Syarah Court as illegal.

Following the revelation of Zaki’s marital trouble, he resigned as deputy chairman of Umno’s disciplinary board, for which he commented: “Considering that members of the disciplinary board are of the highest integrity, I have made this decision following reports in the media ….” (New Straits Times, 9 Aug 2005)’.

See also Sisters in Islam take on this sordid affair in an article entitled ‘Deception and Dishonesty in the Practice of Polygamy’ :

Tan Sri Zaki Azmi with his second wife, Nor Hayati, deliberately burnt their original marriage certificate to keep their union a secret from his first wife (NST, 5 August 2005). Now that he is facing problems with his second wife, he is seeking to get their marriage declared null and void as a way to resolve the matter. In other words, to claim that the second marriage did not really exist and that he had in effect, deceived his second wife about the legality of their union. When a prominent senior lawyer and public figure chooses to use his access to knowledge and expertise in law to effect deceit in his existing married life, as well as to evade responsibility and problems in his subsequent marriage, this demonstrates a startling lack of respect not only for his chosen life partners, but also to the family as instituted in law and religion. What can Malaysians expect when leaders of our community display such blatant lack of deference to the integrity of family life and the institution of marriage? Why have laws on polygamy in the first place, when they are used not to protect rights and interests of contracting parties, but as a way to avoid duties and responsibilities?

Kim Quek’s questions below sum up just how nonsensical Nazri’s attempt to calm public concerns is :

‘The question we must ask now is: If Zaki is morally unfit to serve in Umno’s disciplinary board, how could he be considered morally fit to be a federal court judge, not to mention his lightning elevation to the No.2 position, and anticipated imminent rise to the top job in the judiciary?Is this country so poor in legal talent and integrity that we have no choice but to appoint some one so glaringly unsuited for such important judicial position arising from his multiple conflicts of interests and questionable integrity? If not, then why did the prime minister make such a move? If it is not to advance the prime minister’s and Umno’s interests, then what motivated such an appointment?’

Whilst I could be wrong, my sense is that if no effective date has been fixed for Zaki’s appointment to take effect, then His Majesty has not as yet assented to Zaki’s appointment as President of the Court of Appeal. It seems unimaginable that His Majesty would sign an appointment letter with dates blank.

And if I am right, then the announcement by the PM that Zaki has been appointed when in fact the Agong has not is an act most mischievous on the part of the PM.

Kim Quek seems to share some of these concerns. This is what he says :

‘Knowing that the King and the Council of Rulers had previously declined to accept nominees deemed inappropriate to fill the vacancies of the President of Court of Appeal and Chief Judge of Malaya respectively, as well as having turned down Fairuz’ request to continue as chief justice, the suddenness of PM’s claim of royal assent – particularly in reference to Zaki’s controversial promotion – came as a surprise to many people. Did the Agong also assent to Zaki’s appointment? If so, why couldn’t Zaki’s date of appointment be also decided alongside with Hamid’s? Or was there a problem of royal assent?’

These concerns also raise the question as to the sincerity on the part of the government in the setting up of the Royal Commission of Inquiry to look into the judiciary following the VK Lingam video expose. Media reports have it that the names of nominees have been submitted to His Majesty for approval.

People, start worrying.

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

GUEST COLUMNISTS - Malaysia Today

REFLECTIVE NOTE 5

Niseko Kutchan

Introduction

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.

Conclusion

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.

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END NOTES:

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.