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