Thursday, April 28, 2005

Law and Politics: A Personal Perspective

By Anwar Ibrahim
Thursday, March 24 @ 15:23:01 MYT

Let me begin by expressing my profound gratitude to Law Asia for their unflinching support for the cause of justice and the rule of law.

May I take this opportunity again to commend my legal team represented here today by Chris Fernando for their sacrifice and dedication.

If I could manage such legal luminaries in my legal team, with all their idiosyncrasies, I believe I’ve passed a very important acid test. But still when I walked in just now I was struck by a certain sense of déjà vu.

The last time I addressed a gathering of lawyers as big as this was in Kuala Lumpur 10 years ago. On that occasion, I had said in passing that there were only two kinds of lawyers: those who know the law, and those who know the judge.

I assure you this was no laughing matter then. Obviously the cap fitted some of our judges. And as fate would have it, one particular person ended up presiding in my appeal against my so called corruption conviction. And of course the outcome was a foregone conclusion. The discourse on legal philosophy is said to have started from two short dialogues in Socratic circles.

One dialogue shows the fate that awaits those philosophers who define law as mere decrees regardless of their moral content. One philosopher says that laws are commands of the sovereign and it doesn’t matter whether they are just or unjust.

The other philosopher tells him that unjust laws are nothing but brute force. I say this not because six years of incarceration have transformed me into a jurist much less a philosopher. I say this because six years, well it’s actually eight years including the two spent much earlier; so, all these years behind bars, have made me realise what it’s like to be at the receiving end of unjust laws administered by unjust politicians.

The earlier charge sheet was long but there was to be no trial. There was no need for a defence lawyer because I wasn’t going to be given the opportunity to make my case and get myself out. I was put there pursuant to an executive order signed by the Minister of Home Affairs. This was my first real experience of the interplay of law and politics: the law was unjust and the politics was expedient. But nothing in that two-year detention had prepared me for the events of September 2, 1998.

On that fateful night, a gang of commandos armed with assault rifles stormed into my house while I was holding a peaceful press conference witnessed by thousands of friends and supporters. This was the interchange of law and politics acted out with frightening precision in a combination of brute force and sheer political power. These events were not played out in some tin pot dictatorship.

They were played out in a country consistently touted as a democracy with all its trappings including a written constitution which guarantees fundamental liberties and the due process of law. In one fell swoop, the might of the law banished me from the halls of power into the confines of solitary incarceration. Yet, in the silence of the cold and damp nights, loneliness and despondence often gave way to contemplation of the larger questions of life.

Questions more urgent and more compelling such as why should a fourteen year old boy be kept in prison awaiting trial just for stealing a few cans of sardine from a supermarket? Or why should another human being be whipped simply because he had worked in the country without a permit? Then there were other pressing issues and events that were unfolding in the world outside.

In today’s account therefore, I just want to share with you my personal perspective of the subject at hand without feelings of resentment, anger, bitterness or animosity.

The Interplay of Law and Politics Let us for the moment equate law with the judiciary and politics with the executive. We know that in theory the two are independent of each other. We also know that in practice, at least in certain jurisdictions that I am familiar with, the indiscriminate interplay of law and politics may produce dire consequences. True, too much judicial activism may lead to charges of illegitimate usurpation of legislative power. But too little activism may well give rise to an emasculated judiciary where politicians impose their will on judges in order to perpetuate their own hold on power. Perhaps the language that I’ve used here is a bit strong. So instead of calling it emasculation of the judiciary let me rephrase it as the “abdication of judicial responsibility.”

When the law is subjugated to the tyranny of politics, the administration of justice becomes both farcical and perverse. And the consequences are harsh and cruel. In a true democracy, the use of judicial high handedness to bring down a political opponent can be checked by a transparent court system and a process of accountability. In a dictatorship masquerading as a democracy, however, where the judges are subservient to the political masters, judicial highhandedness is given free rein and transparency is conspicuous by its absence.

Those prosecuted for political reasons are thus condemned even before the trial begins. Instead of being the ultimate guardians of our liberty from executive tyranny, the judiciary is then transformed into principals in the destruction of the very process they were entrusted to protect.

I say this not so much to inculpate judges per se, but rather as an indictment against those politicians who are so obsessed with holding on to power that they won’t think twice about destroying the foundations of judicial independence. This goes to the root of the problem. If only the judges who had been assigned to try me for the spurious charges that were leveled had acted according to the dictates of law and not the dictates of men, then this entire farcical episode would not have happened.

Take for instance, the corruption charge. The axiom goes that judgments must be based solely and entirely on factual evidence tested through the rigours of an adversarial system. But when the trial judge insists on disallowing relevant evidence crucial to establishing my defence while at the same time allowing spurious hear-say evidence from the prosecution, the evidence gathering process is so flawed that that alone should occasion a serious miscarriage of justice.

And then when lawyers adduce overwhelming evidence of the Public Prosecutor’s office actively attempting to induce certain parties to fabricate evidence against the accused; Instead of the prosecutors being called to account, the judge threatens and in fact did carry out his threat by throwing lawyers into jail for contempt.

Free judiciary Perhaps I am being rather self-centred here because the implications go further than me. Indeed, the undermining of judicial independence by political interference has negative repercussions not only on society at large but on the nation as a whole. An independent judiciary on the other hand will be an effective bulwark against the arbitrariness of executive action. For instance, Malaysia’s Internal Security Act still continues to be used arbitrarily against those seen as possible threats to the ruling elite.

The efficacy of the habeas corpus legislation with its noble intentions has been consistently thwarted by compliant judges. And now the current war on terrorism, has taken on an adverse dimension with some countries enacting legislation which impinges on basic human rights. It is a great tragedy that countries that have consistently espoused and embraced such universal values could in a moment of desperation succumb to such draconian measures at the altar of security.

Furthermore, judges who decide according to the dictates of the invisible hand (and I’m not referring to the invisible hand of Adam Smith), these judges also exert a toll on the nation’s business environment for very often the inability to assert independence seems to be inversely proportional to the degree of integrity.

Like I’ve said before, not only must judges display the requisite level of competence and expertise, they must be above suspicion. And where judges are not seen to be absolutely above board, the establishment of equity and fair play in commercial and economic deliberations will be largely illusory. This would also partly explain why Malaysia continues to occupy dismal positions in the corruption index.

In Asia, unlike Europe and the Americas there is no regional court of human rights where aggrieved parties can take their cases for review. In Africa, there is a Human Rights Commission but not a court. Until there is a similar mechanism set up in Asia I would like to urge this conference to consider activating the proposed Asia Pacific Commission of Justice.

As regards to my recent acquittal by the Federal Court, ie. Malaysia’s highest court of the land, there are some who see this as an exoneration for the Malaysian judiciary; that indeed, the decision is a clear testimony that judges in Malaysia are now finally able to decide without fear or favour.

I wish I could agree with this view, but the reality suggest otherwise. As the saying goes, one swallow does not make a summer. Likewise, an acquittal for one man is no vindication of the entire judiciary. For Malaysia, let me be as bold as to suggest that a complete overhaul of the judiciary and the legal service is warranted. This revamping must be guided by the ultimate aim of restoring full independence to the judiciary in order to give effect to the doctrine of the separation of powers.

The Rule of Law

As power and authority are predicated on the rule of law which, to my mind, is the use of law to curb the abuse of law-making power, laws must meet the criterion of justness. If laws are manifestly unjust then the rule of law itself is in jeopardy. As society matures, the people's expectations of the moral dimension of justice is greater. According to John Rawls, every individual possesses rights founded on justice which are inviolable.

Laws and institutions, no matter how efficient and well arranged, must be reformed or abolished if they are unjust.

In my humble view, the polemics on law and politics will be mere philosophizing if it is bereft of this issue of justice. The idea of justice to man is so central that no society is devoid of its conception. Whole societies have been stirred into action in the pursuit of justice and good governance, overthrowing colonial powers and foreign oppressors. But even today, more than half a century after independence, these societies continue to fight oppression from within.

They continue to fight the tyranny of autocratic rule, a tyranny characterised by the rule of men, and not the rule of law. They continue to fight a dictatorship which bears all the trappings of democracy but which remains corrupt and self-serving at the core. And until the holders of the people’s trust finally regard that power and authority are but duty and obligation and not right and privilege, this battle for justice will rage on.


In the final analysis, lawyers and judges constitute one of the crucial institutions of civil society where there are constitutional safeguards for the protection of the people's civil rights and liberties. But it has been said that when men are pure laws are useless. When men are corrupt, laws are broken. Perhaps, it will be appropriate for me to end with the words of the great humanist Henry Thoreau who said that the law will never make men free. It is men who have got to make the law free.


Anwar Ibrahim is Senior Associate Member, St. Antony’s College, Oxford University, former Deputy Prime Minister and Finance Minister of Malaysia, at the plenary session, Lawasia Conference 2005, Gold Coast, Queensland, 22 March, 2005.


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