Rule of Law in Malaysia: A Race to the Bottom?

The foundation for rule of law in Malaysia was cemented when the federal constitution was created and enacted in 1957 & expanded in 1963 (when Malaysia was established), at least that was what we thought.

However, several issues and events which happened in the last 3 years have put the whole foundation through a stringent test.

Fundamental issue such as freedom of speech, assembly and association has created a lot more confusion and controversy that what was supposed to be a straight forward answer. In a democratic country, the rights to speak up, assemble and to form/participate in an association are almost certainly protected by a democratic constitution.

In fact, these rights are the basic pillars of a democracy. These rights should be accorded fairly to all citizens without prejudice. These rights are to be protected by the constitution, interpreted justly by the judiciary and enforced fairly by the enforcement authorities.

Civil society would play a role as a watch dog to ensure that any attempt to usurp or distort these rights is severely criticised and opposed. Even a government is duty bound to govern and function within the democratic and constitutional framework.

There are many benefits for a society/nation which practices the rule of law. A proper adherence to the rule of law does not only provide protection for all regardless of ethnicity, creed or social status but it could dissuade abuse of power and promote accountability.

Any branch of power should always be mindful that there is a check-and-balance mechanism to ensure it acts in accordance to the constitution.

Rule of law helps to promote international trade and investment. Rule of law offers consistency and predictability to the application and enforcement of corporate law. It helps to pacify foreign investors who are not familiar with this country that their investment is safe.

Now, back to Malaysia, why am I suggesting that we might be racing to the bottom in regards to the rule of law?

1. Public institutions losing its credibility and aura of being democratic. In Malaysia, we should ask which public institution is still enjoying a good image for being trustable and credible? If you cannot name me some and do it quickly, then there is a problem with rule of law in Malaysia. Building institutions, credible ones, is a key tenet of a democracy. It is important not to allow the concentration of power in the hands of certain individuals or non-inclusive institutions.

2. Concentration of power in the hands of a few personalities. Public institutions in the country do not function independently of a few personalities. Politicians are in control of these institutions and not their legal and constitutional jurisdiction and role. Many were quick to blame it on Mahathirism but we should admit that a lack of appreciation of democratic values had allowed Mahathir to manipulate these institutions and the system to his regime's advantage.

3. Lack of public awareness on key democracy enablers e.g. rule of law, separation of power, role of elected representatives, individual rights, constitutional rights and nation building. A lack of awareness and knowledge is not only demonstrated by the common public but heads of public institutions who think that they are supposed to be grateful to the government of the day for their appointments.

4. Abuse of power and inappropriate use of state coercive power. This is the worse form of action which could dampen and destroy public confidence in these institutions and their officials. You do not need me to elaborate on examples of abuse of power by public institutions. I am sure you could list me 10 examples within a few minutes. It does not augur well for Malaysia and our global ambition.

It is important for all of us to pause for a while to reflect on what we should and can do for this country. Sadly, this country, a beautiful land blessed with the best of scenery and resources, deserves better. To be listed as one of the top 10 countries suffering worst brain drain is both painful and unbelievable. This country is neither Somalia nor Iraq.

How many of us realize that we are caught in a perpetual decline? Meaning while we remain sluggish, our neighbours are improving very quickly. It means vis-a-vis we are actually suffering from a competitive decline.

What can we do? What can be done? How can we impact change so that Malaysia can reverse the decline?

These questions have become more pertinent than ever if you care for Malaysia.