No democracy can survive without the rule of law, and the rule of law is dependent on an independent judiciary. Malaysia has made enormous strides in strengthening and streamlining its judiciary over the last ten years, and especially the last four. To continue on to fully-developed status by 2020, the Government will need to continue these steps; by all appearances, it is doing so.
It is undeniable that Tun Dr Mahathir Mohamad damaged the judiciary during his time as Prime Minister in the wake of the Team A and Team B battle in Umno in the 1980s. To his credit, he set in motion the steps to repair that damage, but only through his successors has that repair been effected.
That the judiciary is once again asserting its independence is not only on display in Anwar’s acquittal in Sodomy II — an acquittal that most observers believed would ultimately work against the Government’s interest — and of course in the reversal of the Sodomy I conviction. It is on display in the list of former politicians and influential businessmen with close ties to the Government who have been convicted of criminal wrongdoing.
It is on display in the recent comments by Chief Justice Tun Arifin Zakaria, calling on respect for the judiciary in print and in speech, together with pointed reminders that judges dare not interact too closely with the powerful for fear of the perception of bias.
Undeniably, the system was in need of reform even five years ago, but under the Government’s hands-off approach — and repeated, public reminders that the judiciary was independent — and the allocation of funds for the judiciary’s self-imposed project of revitalisation and streamlining of processes and filing, this is no longer the case.
Speed and efficiency are critical aspects of public confidence in the judiciary that is often overlooked: Impartiality and independence are vital, but the public will often lose respect for the rule of law if it take incredible amounts of time and money to handle the smallest matter. Following a trend developed in other countries, including the UK and US, Malaysia’s judiciary now works on an electronic docketing system; directs small or easily-resolved matters to informal mediation; maintains computerised filing and records-maintenance systems; and provides regular screens of judicial dockets to certify that cases are being disposed at a regular rate.
Malaysia’s court system even five years ago was being compared to Charles Dickens’ novel, Bleak House, which notoriously told the tale of a court case that went decades, and could not be resolved because the litigants had bankrupted themselves in the process of trying their case. Thanks to Government reform and judicial reform, the World Bank has praised Malaysia’s court reforms, citing them as a model to other developing countries — and developed ones as well.
That the judiciary has effectively reasserted its independence can be seen in a standard-issue Pakatan Rakyat ceramah, wherein an Opposition warlord will decry the politicisation of the judiciary — while praising Datuk Seri Anwar Ibrahim’s acquittal in Sodomy II as a vindication of justice. The Bar Council, fast becoming more politicised than the judiciary had ever been, went to great lengths to praise the evenhandedness of the trial and result in Sodomy II.
Anwar himself alternates between claiming the result was rigged (he does not explain how this makes sense) and claiming that he has been vindicated in court. The recent decision by the Government to appeal the verdict will doubtless please Mohd Saiful Bukhari Azlan and his family, but the Government is treating the verdict as a very real legal obstacle, rather than a mere formality to be brushed aside.
The certainty that the courts will act without fear or favour is a necessity on the way to fully-developed status. Foreign investors must believe their disputes will not be prejudged based on their opponents’ political or social standing. Local businesses must believe that even the largest corporations can be defeated in court. Individuals must believe that even the powerful must bow before the law.
Without that certainty, no individual, no business, will engage in risky business, because they cannot quantify the risk, and cannot gauge the cost to engage in business. If there is no risk-taking, there will be no economic growth.
To maintain Malaysia’s growth — so impressive even in the face of global economic gloom and uncertainty — the steps of the last five and ten years must continue. Malaysians must take for granted that their judges and courts are impartial. They must believe that a verdict might be the result of an incorrect decision, an illogical decision, or even a monumentally stupid decision — but always an impartial, fair decision.
If the immediate past is any prologue, they will.