That is the title of a report issued last month (released on 6 April 2000) by the International Bar Association (IBA), the ICJ's Centre for the Independence of Judges and Lawyers (CIJL), the Commonwealth Lawyers' Association (CLA) and the Union Internationale des Avocats (UIA). It is a damning indictment of the way in which Malaysia addresses the independence of the judiciary and the profession and of the way in which the rights of some litigants are infringed.
The report was compiled following a mission to Malaysia by the Honourable Lord Abernethy (Judge of the Court of Session of Scotland and now reserve judge in the Lockerbie trial), Justice McNally (Appellate Judge of the Supreme Court of Zimbabwe) and Dr Rajeev Dhavan (Senior Advocate and Commissioner of the ICJ, India). The full text of the Report is available on the IBA's website at www.ibanet.org and a hard copy has been provided to the Bar Association.
The report describes the concerns that gave rise to the mission and provides background to the Malaysian justice system. It address the relationships between Bar and Executive, between Bar and Judiciary and between Judiciary and Executive and explores the role of legislative power and it does so by reference to the law and individual examples of the law in practice - a number of cases are reviewed in some detail. The Report's conclusions and recommendations repay detailed consideration.
In summary, the delegation found that
"... there are well-founded grounds for concern as to the proper administration of justice in Malaysia in cases which are of particular interest, for whatever reason, to the government... The central problem seems to lie in the actions of the various branches of an extremely powerful executive, which has not acted with due regard for the other essential elements of a free and democratic society based on the just rule of law. Such due regard requires both a clear grasp of the concept of the separation of powers and also an element of restraint by all branches of the executive. These have not always been evident. There must be a truly independent judiciary, fully prepared at all times to do justice for all, whether strong or weak, rich or poor, high or low, politically compliant or outspoken. There must be an autonomous bar which is allowed to render its services freely so as to enable it to fulfil the purposes set out in its governing statute. Repression of fundamental liberties should be maintained only if and to the extent that it is absolutely necessary. There is real cause for concern in all of these areas."
The Report recommends legislative and administrative action to address these concerns. A proper relationship between the bar and the executive requires that the autonomy of the bar not be threatened and that lawyers have the right to freedom of association. The Bar Council should be free to provide constructive criticism of government action and to make such views public. The government should refrain from speaking out publicly against the Bar Council and its members and should recognise and respect its proper role. There should be regular meetings between the Bar Council and the executive to discuss matters of mutual interest and concern. The police should also be fully trained regarding the role of the lawyer and should refrain from exerting undue pressure on lawyers acting in their professional capacity. The confidentiality of client communications should be respected.
To improve the relationship between the bar and the judiciary both judges and lawyers should be careful to treat each other with mutual respect and courtesy, particularly in court or in front of the media. There should be regular meetings between the Bar Council and the senior judiciary to discuss matters of mutual interest. Social contacts between the Bar Council and the judiciary should also be resumed. There should be a mechanism for mediation of disagreements between lawyers and the judiciary (and the four organisations involved in the Report have offered to assist in that regard). Steps should be taken to ensure that judges and lawyers are trained to be in no doubt as to the true nature and meaning of the independence of the judiciary.
One of the issues of concern is the willingness of judges to use contempt proceedings against lawyers as a means of control of the bar. The Report recommends that the courts should act with great forbearance and restraint in the use and threatened use of the contempt power in respect of lawyers when practising their profession. The power should be used only as a last resort when all other means of achieving the proper result have failed. Unprofessional conduct by lawyers should be dealt with, instead, by the Disciplinary Board after the conclusion of the hearing, except in cases where the continuation of the process fairly is impossible. Failing restraint, the contempt law should be reformed in order to remove the adverse effect it has on the ability of lawyers to render their services freely.
In defamation cases - seen as another means of stifling free speech - it is recommended that courts should not allow claims for or awards of damages to be of such magnitude as to be a means of stifling free speech and expression.
There are problems between the judiciary and the executive. In cases that are considered of political or economic importance to the executive, there are serious concerns that the judiciary is not independent, either because it is leaned on directly or indirectly by the government or because it knows what the government wants and is simply too cowed in the light of past experiences. This perception is held by members of the general public and reasonable perception is every bit as important as the truth of the matter. The problem needs to be recognised and confronted. The single most important factor in bringing about the present unsatisfactory position has been the failure of a very powerful executive to understand the independent constitutional position of the judiciary and all that involves.
The judiciary should act and be seen to act with complete independence from the executive. The decision making and reasoning of the judiciary in the recent cases of Lim Guan Eng and Anwar Ibrahim have, quite understandably, given real cause for concern in this regard. The choice of judges for high profile cases should be carefully considered. An independent prosecution system should be established.
There is much more. The Report is a comprehensive, measured and thoughtful treatment of many of the problems of justice in Malaysia in 2000, based on fact. Its recommendations are wholly constructive. A copy of the draft report was sent to the Malaysian government last year for comment, such comments to be reported (if desired) in the final Report. There was no response. The Report was released at simultaneous press conferences in Geneva (which I attended before addressing the UN Human Rights Commission on behalf of the IBA), London and New Delhi. The Malaysian Chief Justice's disingenuous response was to assert that he was able to answer and deal with the concerns raised in the Report, but that he had not been sent a copy of it. It was not sufficient that a copy had been sent to the government because, after all, the judiciary in Malaysia is independent from the government!
In my view it would be appropriate for the NSW Bar to consider developing some sort of arrangement with the Malaysian Bar Council in order to provide support for our beleaguered colleagues. This request has been made to me by concerned Malaysians and I pass it on for consideration.
N R Cowdery QC|
Co-Chairman, Human Rights Institute, IBA