The Rule of Law Under Threat
September 15, 1998
1.The rule of law and the principles of natural justice are the mainstay of a progressive and civilised society. These two elements together ensure that peoples' rights are not trampled upon and that everyone shall be treated equally before the law. The principles of natural justice dictate that everyone shall be entitled to the due process of the law, that is, no person shall be deprived of his rights and privileges nor be subject to condemnation or punishment until and unless he has been given an opportunity to defend himself to the full extent of the law and to be heard by a fair and impartial tribunal.
2.There has been an ever steady and increasing disregard for and erosion of the rule of law and the principles of natural justice. Events in the recent past have served to bring this to prominence.
3.Most recent of these relates to the summary sacking of the former Deputy Prime Minister and the Minister of Finance Minister. In his press conference on 3rd September 1998 (the day after his removal from his cabinet posts), Datuk Seri Anwar Ibrahim made allegations of government machinery being used against him.
4.The events which occurred on the morning of the 3rd appear to lend credence to what he alleged. According to newspaper reports, four affidavits were served on Datuk Nallakaruppan (who was charged for an offence under the Internal Security Act for possession of some 125 rounds of ammunition without a licence) at about 8.35 a.m. that morning; the affidavits were intended to be used to oppose Datuk Nalla's application to be transferred to the Sungai Buloh Prison from the Bukit Aman lock-up; the affidavits were later produced by the Deputy Public Prosecutor in the High Court at about 9.35 am. when the application came up for hearing; as counsel for Datuk Nalla objected to their admissibility on the ground that their contents were irrelevant to the offence the judge adjourned the hearing of the application to 2.00 pm that afternoon in order to hear and rule on the objection and to review the affidavits; because of the adjournment, counsel had applied to have the affidavits "embargoed" pending the judge's ruling but the judge refused to make an interim order to impose the embargo, holding that the affidavits had been filed and had, therefore, become public documents.
5.At 1.30 pm. that day TV3 in its news broadcast made public the allegations made in one of the affidavits, which were very detrimental to Datuk Anwar. Those allegations were also published amongst others, in a Special Edition of the Malay Mail newspaper which went to print at about 12.00 noon and became available for purchase by the public at 2.00 p.m. the same day.
6.On the above facts, a number of points arise:-
It has always been accepted as a principle that documents do not become public documents by reason only that they have been filed in court. The contents of a document filed in court only becomes public after the document has been read or deemed to be read in open court. The judge's ruling was, therefore, contrary to principle.
Apart from the affidavit not having been read in open court, was it not incumbent upon the judge, having regard to the nature of the allegations made against Datuk Anwar in the affidavit and bearing in mind that he was not a party to the application before the judge, to at least withhold making a ruling on the status of the affidavits until he had heard the objection and reviewed the contents of the affidavits? He should have been aware of the prejudicial effect the affidavits would have on Datuk Anwar. Who was it who sought to have the contents of the affidavits made public at that stage of the proceedings? Datuk Nalla had, by his counsel, objected to the affidavits : it could not have been him.
The press was not a party to the proceedings and could not have requested for the court's ruling. There was no mention in the newspapers that the Deputy Public Prosecutor had asked for such a ruling. More importantly, who actually distributed copies of the affidavits to the press and to TV3? It has been ascertained that it was not Datuk Nalla or his counsel. As it was, when the court resumed hearing in the afternoon, irreparable damage had been done to Datuk Anwar by the media blitz.
7.Equally important issues arise from the way the various authorities concerned dealt with Datuk Nalla' s application to be transferred to the Sungai Buloh prison:-
Although arrested for possession of the ammunition without a licence, his interrogation by the police during the 20 days he had been detained at the Bukit Aman lock-up had been on matters not related to the commission of the offence. In one of the affidavits, which was affirmed by the Attorney-General, the detention of Datuk Nalla at the Bukit Aman lock-up was stated to be necessary in order that he could be questioned regarding allegations made by third parties implicating Datuk Anwar's sexual activities.
According to the Attorney-General, he agreed that the investigation involved security and national interest. He was reported to have further said: "Police investigation is still on-going and statements which have been obtained are serious and involve the security of the nation." Where in the Act is the police authorised to question a person arrested and detained for a specific offence under the ISA on matters not related to that offence, just because the police consider those other matters involve national security and the Attorney-General agrees with the police?
Datuk Nalla was arrested for an offence under section 57 of the Act for possession of 125 rounds of ammunition without a licence. The allegations of sexual impropriety on the part of Datuk Anwar were listed in the newspapers. It is far-fetched for the Attorney-General to say that those allegations (yet to be substantiated) can warrant the continued detention of Datuk Nalla on the ground allegedly of national security. The Court nevertheless accepted the Attorney-General's contention.
It is already a fact that the courts have, by their past decisions, allowed the police an unfettered discretion to arrest and detain any person under section 73 of the Act. The court, in accepting the Attorney-General's contention in the application of Datuk Nalla, has extended that arbitrary discretion to other areas. It is understood that Counsel for Datuk Nalla applied to the Court to be allowed time to reply to the four affidavits which were served on Datuk Nalla that morning. This application, though normally granted as a matter of natural justice, was disallowed by the Court. Datuk Nalla's reply to the affidavits were, therefore, not before the Court when it made its decision.
8.In his press conference Datuk Anwar made, among others, the following statements: ".. I am shocked with the use of government machinery to frame me. In the past with Abim (Angkatan Belia Islam Malaysia) I was harassed but never to this extent. The entire process ... they questioned everybody, all my friends, even members of the judiciary. If he is a man, he is transferred out: if a woman, she is asked whether she is for PM or DPM or if she has some private, private, private dealings with me." The High Court judge who granted Datuk Anwar the injunction to restrain the dissemination of the book alleged to defame him is scheduled to be transferred to the Shah Alam High Court. He is a very senior High Court judge in Kuala Lumpur. His imminent transfer to Shah Alam soon after he granted the injunction must, therefore, raise questions. It is, of course, difficult to ascertain the actual reason for his transfer, but if it had anything to do with the granting of the injunction, an even more serious question arises as to the independence of the judge or judges responsible for his transfer and as to whether any judge can ever be independent and impartial in performing his judicial function.
9.Some time ago, serious allegations of corruption were made in a poison-pen letter against a number of judges of the superior courts. The Attorney-General announced publicly that the allegations would be fully investigated. The investigation apparently disclosed that the allegations were unfounded and the allegations were false. But no prosecution was instituted against the author of the poison-pen letter, a judge of the High Court, for publication of false news as was done against Irene Fernandez for submitting Tenaganita's findings of alleged irregularities committed in a refugee camp, and against Lim Guan Eng. The judge concerned was merely asked to resign. Serious allegations of corruption, especially against members of the higher judiciary merit investigation by an independent Royal Commission. Corruption in a judiciary affects its integrity, and therefore, its independence and impartiality. The recent statement regarding judges made by the Attorney-General, made on the occasion of the elevation of Justice Augustine Paul to the High Court Bench at Melaka, indicate that all may not be well with the judiciary.
10.Democracy under our Constitution is founded upon the rule of law. The "rule of law", reduced to its basics, requires everything to be done according to law; and such law must provide for recognised rules and principles which do not allow for the arbitrary exercise of discretionary power. The rule of law has been contrasted with arbitrariness. Underlying the rule of law is an assumption of justice and fairness that should accompany its application.
11.It is inherent in the rule of law that nobody is above the law and that disputes as to the legality of acts (whether of a government or person) are to be decided by judges who are wholly independent of the executive. In a country such as ours, where a written constitution is the supreme law, it is the function of judges to safeguard and protect the fundamental freedoms provided to the individuals by the constitution. Laws should be so interpreted as to promote those freedoms so that they may be exercised freely.
Sadly, recent instances of persons being charged by the court for perceived contempt of court or for expressing legitimate views have shown the lack of sympathy on the part of judges for these freedoms, in particular, the freedom of speech. Granted that these freedoms cannot be absolute but must be subject to restrictions, it is still the bounden duty of the courts to ensure that these restrictions are not such as to render these freedoms illusory.
Thus, the warning reported in the newspapers to have been given by the Court of Appeal earlier this year when increasing the sentence on Lim Guan Eng, from a fine to a term of imprisonment of eighteen months, that it was sending out a message that no one should criticise the judiciary was misconceived in a society which professes to believe and practise the rule of law. The message clearly has the effect of discouraging anyone from speaking at all against the judiciary. Is the judiciary beyond criticism when even His Majesty the Yang di-Pertuan Agong and their Highnesses the Rulers are not? It has long been accepted that a fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or any proper and fair comment on any decision given by him is permitted.
12.The Attorney-General, as another institution involved in the administration of justice, also has a crucial role to play in a democracy. He is the first law officer of the country and is the guardian and protector of public interest. It has, however, been observed again and again that he has misconstrued his function. In the investigation into the allegations made by the underaged girl involving the former Chief Minister of Melaka, Tan Sri Rahim Thamby Chik, he went to the extent of exposing her admissions of sexual involvement with other persons in order to discredit her complaint. In spite of successfully prosecuting those persons on the girl's admissions, the Attorney-General chose not to believe her on her complaint against Tan Sri Rahim Thamby Chik. Recently, the Attorney-General published a set of guidelines setting out the basis for his deciding whether to prosecute or not. It is hoped that these guidelines will provide more transparency and will help improve the Attorney-General's image in the eyes of the public.
13.The police also play a crucial role in maintaining law and order, and society depends on them for upholding the rule of law. It is the duty of the police to invoke their power of arrest and detention to investigate commission of crimes alleged to have been committed. However, their resort to invoking section 73 of the Internal Security Act for reasons which are not envisaged by the Act is becoming more frequent. On many occasions they have publicly issued threats to use that power against persons suspected of having committed various offences which have no relation to issues of national security; ie cloning of hand phones and Internet rumour-mongering.
The police should refrain from continuing to invoke the power under the Internal Security Act. On 24th December 1989, the Malaysian Government concluded a treaty with the Communist Party of Malaya in Bangkok following which the Communist insurgency ceased altogether. Thereafter the basis for the existence of the Act has ceased to exist. In any case, the Act was not promulgated in order to enable the police to deal with persons suspected of having committed a defined offence (not being an offence under the Act) but against whom no evidence could be obtained. It is a person's fundamental right in a society subscribing to the rule of law to be free from arbitrary arrests and detention.
14.In Datuk Anwar's case, the police went on television to disclose that new reports had been lodged against Datuk Anwar, alleging he had interfered with police investigation and that he might have committed sedition for what he had said in an interview with foreign media. Should not matters concerning prosecution for offences be determined by the Public Prosecutor? It cannot be correct for the police to publicly disclose that there is evidence in police possession which may warrant Datuk Anwar's prosecution. What was the purpose to be served by the public disclosure? Was it to defend the police against some perceived allegation that they had not been professional in the carrying out of their duties? Is there any need to do that?
Professionalism is a matter for objective assessment and is judged by the conduct of the police. Their function is to investigate complaints thoroughly in order to gather evidence, and to present the evidence to the Public Prosecutor to decide whether there is any offence disclosed. If any advanced announcement is required to be made (and there should not be that many cases where that is necessary) it should be the Public Prosecutor who should do it. It may be useful to bear in mind, that it is inimical to the good image of the police as a law enforcement body to take on the confrontational stance they did in the interview against a person who has not been charged with any offences.
15.The activities following the dismissal of Datuk Anwar from his Cabinet posts and his expulsion from UMNO followed the familiar pattern previously seen when this country had its constitutional crises involving their Highnesses the Malay Rulers. It is also reminiscent of the dismissal of Tun Salleh Abas, the then Lord President of the Supreme Court of Malaysia, in 1988. Opinion was mobilised against Datuk Anwar to support the decision taken. Just as at that time, no reasons were furnished by the Prime Minister for the dismissal but party stalwarts had no hesitation to agree with it. One senior Minister agreed with the decision because the Prime Minister "must have had good reasons" for making it. The thinking seems to be that the correctness of the decision will be decided by a headcount of loyal supporters.
16.A number who had publicly supported the decision, expressed disapproval of Datuk Anwar's proposal to go to the people to explain his side of the story, giving different reasons, some fearing that there might be undesirable repercussions and others because Datuk Anwar was no longer an UMNO member. It appears that while it is perfectly acceptable for some UMNO leaders to show the people that the decision receives the approval of UMNO members generally, it is not considered desirable for Datuk Anwar to put forward his case to the people. Such an attitude is not consistent with the principle of justice and fairplay. The people must decide, after hearing the reasons presented by both sides, whether what was done was right or not. It is, therefore, hoped that on the issue of his expulsion, the public will have the opportunity to hear Datuk Anwar's explanation on the allegations made against him, which allegations have yet to be substantiated.
17.There is a need for all freedom-loving Malaysians to understand and appreciate the importance of the rule of law and to be vigilant that it prevails in this country. Without the rule of law, there can be no justice.
Dated 15th September 1998