Separation of powers

Of the four Branches of Government, the judiciary is the most crucial. When all else fails you want to know that you at least have one last bastion of justice, the courts.


Raja Petra Kamarudin

I know Malaysians are not happy. But do Malaysians know what they are not happy about? Malaysians realise there is something wrong with this country. But very few can actually put their finger on what it is that is wrong.

Two days ago, we published a pretty long report called Can Malaysian judges meet these standards? Knowing that Malaysians do not quite like reading, especially when it comes to reading long ‘academic’ reports, many probably did not grasp the message in that report. Let us, therefore, talk about that issue from another angle.

A ‘good’ country is one that practices separation of powers. This can be summarised simply as power should not be monopolised in the hands of one man, the Executive. In Malaysia, this Executive would mean the Prime Minister.

Malaysia has four Branches of Government — the Executive (the Prime Minister), the Legislature (Parliament), the Judiciary (the Judges) and the Monarchy (the nine Rulers plus the Agong). These four Branches of Government are supposed to be ‘independent’ of each other and work in tandem without overlapping. This means one Branch should not dictate what the other does or interfere or influence another Branch.

In Malaysia, however, this does not happen. In Malaysia, the Executive can tell the other Branches how he wants things done. And this became even more so during the tenure of Tun Dr Mahathir Mohamad when he was Prime Minister for 22 years.

We of course still remember the Umno party crisis (Team A vs. Team B), the Constitutional Crisis (twice), the sacking of the judges, Operasi Lalang (where more than 100 dissidents were detained), the Constitutional amendments, etc., in the 1980s that resulted in power eventually becoming concentrated in the hands of one man.

Today, the Prime Minister and not Parliament decides on the appointment of the Chief Justice, the police chief, the MACC chief, the AG, and whatnot. Ideally, Parliament should be the Branch that decides on these appointments and the Parliamentary Committee should not be one that is monopolised by the ruling party Parliamentarians but those from the opposition bench as well. The appointment of senior judges should be by the Judicial Commission and senior police officers by the Police Force Commission that also report to Parliament.

This is what Malaysiakini reported three days ago:

Teoh Beng Hock's death has raised the question as to whether the Malaysia Anti-Corruption Commission (MACC) uses force to extract information from witnesses.

A former Anti-Corruption Agency (ACA) senior officer has claimed that the corruption watchdog used to be a "civil and gentleman's organisation" that has never been accused of abusing or assaulting witnesses or suspects.

"We don't work like the police. We don't resort to using force to extract a confession. But I don't know (what it is like) now," said Mohamad Ramli Manan in an email interview with Malaysiakini on issues raised by Teoh's death.

"If you are a good investigator, you don't need a confession at all. You prove your case from other evidence."

The ACA was upgraded to the Malaysian Anti-Corruption Commission (MACC) in January.

Ramli had stunned the nation in early 2007 when he alleged that then ACA director-general Zulkipli Mat Noor was involved in corruption and a sex offence.

Ramli had served as ACA deputy chief in three states – Kedah, Perak, Negeri Sembilan – before being appointed to head the agency in Kelantan, Malacca, Johor and Sabah.

Zulkipli was cleared by Attorney-General Chambers but his contract was not extended when it expired in March 2007.

Ramli said the ACA, created in 1967, had never resorted to handcuffing suspects or arrested persons. Unlike the police who deal with hardcore criminals, the anti-graft agency deals with white collar crimes where there is minimal risk of suspects escaping.

However, there was a departure from this practice early this year when two Perak Pakatan Rakyat state executive councillors were arrested.

"We were shocked to see that the exco members who had voluntarily surrendered to the MACC and other suspects were handcuffed for their remand proceedings.

"I would venture to say that the Perak exco suspects were handcuffed just to embarrass them. That speaks of the mentality of MACC officers compared to ACA officers."

Ramli, who retired in 2006, agreed that the ACA had always practised selective investigation.

"They are so afraid to investigate Umno ministers, excos and menteris besar unless they get the green light from the top. Officers who try to do so might find themselves facing trouble.

"MACC would not dare to do what they have done in Selangor and Perak in any of the BN states. They would not dare to handcuff an Umno exco member. That is a fact which nobody can deny."

The one-time senior man of the ACA admits that the police do resort to violence to extract confessions from ‘witnesses’ and suspects. And now it appears like the ACA (now MACC) also resorts to the same tactics, even arresting and handcuffing those they want to ‘talk’ to.

So you see what happens when the Executive decides on the top jobs? The judiciary, the police, the MACC, the AG, and everyone can be told what to do. And they will do whatever serves the interest of the ruling party. And because of this carte blanche they can practically do what they like, both within and outside the law. And we have seen a lot of evidence of this over the last 11 years since 1998.

Of the four Branches of Government, the judiciary is the most crucial. When all else fails you want to know that you at least have one last bastion of justice, the courts. The police, the MACC, the AG, UMNO, the Prime Minister, or whomsoever can choose to fix you up. But as long as you can depend on the courts you will still be guaranteed justice. But when this last bastion of justice is itself perverted and subverted, then there is no hope left. You might as well just leave the country because Malaysia will be extremely untenable.

I can write a book about this. Nevertheless, without turning this article into a thesis, maybe I can offer you one example of what I mean. Rest assured there are many more examples. But all these examples would merely be more of the same thing.

Let us look at one case, which is the most recent. Unfolding before us in a hushed and hurried manner is the case of KLHC Civil Suit: S1-22-1311-2005; Dato’ Gopal Sri Ram vs Dato’ C Vijaya Kumar and seven others where the great Sri Ram is suing his former partners in a dispute over a library. Imagine a scene of a Federal Court Judge sitting daily before a junior Judicial Commissioner, Harminder Singh, instructing how justice is to be delivered.

Why could it not wait until he retires in less than six months? Is the CJ not aware of this? Such negative impressions on the judiciary were already previously commented on, specifically mentioning his name on pages 28-30 of The Report on the Malaysian Judiciary by the IBA. And yet we have a repeat of such events away from public glare.

Who is this revered Federal Court Judge? Well, he was the one who opened the floodgates to high damages in defamation cases following his judgment in the case brought by Tan Sri Vincent Tan against Hassan Hamzah and others.

In affirming the RM10 million award by the High Court, he wrote:

“I must record my strong disapproval of any judicial policy that is directed at awarding very low damages for defamation…But I do hold the view that injury to a person’s reputation may occasion him at least as much, if not greater, harm than injury to his or her physical self."

And, not long after that, his wife sued the International School of Kuala Lumpur for RM6 million. Is there a plot we are missing? Dignity of the judiciary must surely come with integrity of the holders of that august office. And that was exactly what Murray Hiebert reported on. As if in retaliation, his other brother-judge, Low Hop Bing, cited Murray Hiebert for contempt. This received attention from no less than the former US President Bill Clinton and the international community (see letter below).


Dear Prime Minister Dato' Seri Dr Mahathir bin Mohamad,

I am writing to express my deep concern over the recent criminal conviction of journalist Murray Hiebert and to ask you to take immediate steps to protect freedom of expression and press freedom in Malaysia.

As you know, Mr. Hiebert, the Canadian-born Malaysian bureau chief of the Hong-Kong based Far Eastern Economic Review, was recently given a three-month jail term for writing an article which mentioned details of a civil suit brought by Datin Chandra Sri Ram against the International School of Kuala Lumpur. Chandra was suing the school for dropping her son, Govind, from its debating team. On 10 March, the school apologised and the suit was withdrawn.

Before that point, however, Hiebert had written about the case in an article entitled "See You in Court" which examined an apparent increase of litigation in Malaysia. The story noted in part that Chandra's husband is a Court of Appeals judge and that the case had moved with unusual swiftness through the judicial system.

On the basis of these two statements, Chandra brought a suit against Hiebert alleging contempt of the Malaysian judicial system.

Hiebert was found guilty on 30 May by Judge Low Hop Bing. In his decision Low stated that "it is high time our judiciary shows its abhorrence toward such contemptuous conduct as is illustrated by the facts of this case."

I believe this conviction to be a significant miscarriage of justice. The disputed comments appear factual and well within the realm of internationally accepted norms of responsible journalism. It is also problematic to allow a private citizen to lay criminal charges on behalf of the Malaysian judicial system.

I also believe that Mr. Hiebert's conviction demonstrates that there are inadequate safeguards in Malaysia to protect freedom of expression and press freedom.

It is very possible that media outlets will be forced into self-censorship by this type of judicial action. This will have a detrimental impact on the free flow of information in Malaysia, undermining the rights of your citizens to be fully informed.

I urge you to take immediate action to ensure that the legal and judicial limits placed on press freedom and freedom of expression do not stifle journalism in Malaysia. I understand that Mr. Hiebert's conviction is under appeal and that there are limitations on how the government can become involved at this time. Nevertheless, I ask that all appropriate steps be taken to assist Mr. Hiebert and, if possible, to have the criminal charge against him withdrawn.

I would appreciate a response to this letter.


The Canadian Committee to Protect Journalists


Hiebert was jailed for contempt of court for his article in the Far Eastern Economic Review on the case of Datin Chandra Sri Ram, wife of the judge. He wrote an article on the International School of Kuala Lumpur dropping her son from its debating team. Hiebert's article entitled "See you in court" was treated as scandalising the judiciary and lowering the integrity of the judiciary and it sent him to jail for six weeks. Clinton criticised the decision, saying that putting a journalist in jail for doing his job undermines press freedom that plays such a critical role in building a democratic society. This led to Tun Dzaiddin Abdullah, as CJ, to scale back awards in defamation lawsuits, saying that it could threaten freedom of the press.

His critics argue that he is more interested in showboating and earning column inches in the newspapers. His supporters counter that he is one of the few judges with the legal brain to understand complex issues and the confidence to make decisions in tough and controversial cases and overturn judgments, which are patently unjust. Already, the Vincent Tan, the ISKL, the Murray Hiebert cases, etc., cast a big shadow on the actual person of Sri Ram. He has only fortified that with this recent case against his former partners. Over what? A Library?

It is these antics that erode confidence in the judiciary, especially the superior court judges when some gems were just beginning to show at the Sessions and High Court bench. Exactly for this reason Malaysia Today felt the need to highlight the Bangalore Code as follows:    

“175. A judge has the right to act in the protection of his or her rights and interests, including by litigating in the courts. However, a judge should be circumspect about becoming involved in personal litigation. As a litigant, a judge runs the risk of giving the impression that he or she is taking advantage of his or her office. The judge also risks having his or her credibility adversely affected by the findings of judicial colleagues.”

It appears that all the four Branches of Government in Malaysia are in dire need of reforms. With the Perak Crisis involving both the Sultan and the Judiciary, the almost 2,000 deaths in custody over the last five or six years, the indiscriminate use of laws where the rule by law rather than rule of law applies, and so on, the case for supporting reforms just can’t be disputed.

Let me repeat what I said. The courtroom is the last bastion of justice. The rest can be corrupted as hell for all I care. But as long as we still have the courts to turn to then there is still hope. But when the judiciary itself is a ‘gone-case’, then there will no longer be any hope for you and me in seeing justice. And that is the mark of a failed state, when the judicial system has broken down.