Law and Politics: A Personal Perspective

Law and Politics: A Personal Perspective

Anwar Ibrahim, 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.

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.

Conclusion

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.

Thank you.