Will our legal system ever be great again?

 

It was both shocking and refreshing to hear Prime Minister Anwar Ibrahim admit that several high-profile cases brought against members of the former Barisan Nasional government following the 2018 general election (GE 14) were flawed.

In fact, Anwar reportedly went much further, saying that some of the cases took the form of “political vengeance” and were prosecuted with “venom” and “enmity” by “those in power at the time”.

Anwar was obviously seeking to distance himself from several controversial court cases brought after GE 14, when Dr Mahathir Mohamad was prime minister and chairman of Pakatan Harapan.

Anwar’s view is one I have held for a long time. In previous columns I have highlighted the prosecutorial anarchy orchestrated by various members of the executive post GE 14 through various government agencies, purportedly in the exercise of constitutional powers.

In reality, however, these actions were carried out without due regard to international conventions relating to ethical prosecutorial practices and the due process of law. They were simply designed to fix key political opponents.

Such conduct in my view has also compromised political harmony and opened the door to civil disharmony.

The prosecutions which the prime minister has now called into question were brought by an attorney-general (AG) appointed by the PH government. Under his watch, multiple court cases were brought against leading BN politicians and members of their family.

Meanwhile a case against a PH Cabinet minister was controversially discontinued, although the AG at the time said he was not personally involved in that particular decision.

Subsequent AGs who held office during the Perikatan Nasional, Umno-PN and Madani regimes which followed have taken a similar path.

Critics have openly questioned several controversial prosecutorial decisions taken by each of these regimes, but those taken during the early years of PH rule continue to be defended as justiciable even to this very day. In my view, there is clearly a double standard at play here.

Yes, the group that lost power in 2018 can be held responsible for the high national debt, the country’s unfortunate rise in the corruption index, the broadening of the low-income group, a poorer quality of life, the decline in our education system, the poor command of key subjects, especially English, Science and Mathematics, and numerous other problems which have arisen.

There is no doubt that these have both directly and indirectly affected Malaysia’s economic growth and the ethics of its populace, resulting in the creation of a society which is missing vital components of the Rukun Negara.

In particular, modern Malaysia today fails to uphold the supremacy of the constitution, the sanctity of the rule of law, and lacks courtesy and morality, as evidenced by heightened racial and religious intolerance.

Even our collective belief in the Almighty has become corrupted, with shariah law, meant to govern only the personal beliefs of Muslim Malaysians, overreaching into public life and adversely impacting the lives of both Muslims and non-Muslims alike.

Two recent instances come to mind. The Kelantan government’s desire to require all food and beverage outlets in the state to have halal certification (now seemingly rolled back), and the Terengganu government’s insistence on publicly caning a man convicted of khalwat.

In my view, the latter case saw a clear and unfortunate dereliction of duty by those in authority.

The attorney-general (the defender of public interest), the Bar Council (the statutory body empowered to uphold the rule of law), and civil society, ought to have intervened to test the constitutionality of this act.

In fact, as decided by the Federal Court in the landmark Nik Elin case last year, any member of the public could have done so. Alas, there was no one to defend the constitutional rights of the offender.

He was likely from a poor background, but the same fate also befell the once mighty Najib Razak who suffered numerous transgressions during his legal battles, only for his lawyers and himself to be pilloried unjustly.

One brave Federal Court judge eventually recognised that the former prime minister had been deprived of his constitutional right to counsel, but even then, the Bar Council chose to turn a deaf ear and instead pursued disciplinary action against the lawyers involved and even challenged the Yang di-Pertuan Agong’s right to pardon.

Perhaps the prime minister has finally decided to speak up on account of these injustices.

After all, wasn’t restoration of the rule of law central to his own quest for justice when he started the Reformasi movement 26 years ago? Wasn’t it his central allegation that the executive and judicial arms of government were in cahoots to fix him up? Did he not claim that the pardon he secured was on account of a “travesty of justice” he suffered?

Since the prime minister has now admitted that these high-profile prosecutions have suffered a similar fate–a claim which no one has come out to deny–what is his government, the law and institutional reform minister, the AG, the Bar Council, civil society, and the public at large going to do about them?

And will the government finally speak the truth about the purported addendum that Najib says allows him to serve time under house arrest, or is it happy to suffer the embarrassment of an adverse court ruling?

Are we going to continue sidestepping the rule of law for the sake of political expediency or will we work to see justice served and judicial reforms expedited?

Will 2025 finally see the AG divested of his prosecutorial powers?

Will we see a tightening of judicial appointments so that they comply with the law?

Not too long ago, a former AG admitted that several appointments to the top judicial posts did not go through the Judicial Appointments Commission. That appears to have happened again in two key appointments recently.

Will the obvious imbalance on the bench between Malay and non-Malay judges and peninsula and East Malaysian judges be rectified?

Will future appointments at all levels of the judiciary and legal services be made on merit?

Do we have the political will to restore our legal system to its former greatness? - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.