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Tuesday, 14 October 2008

All The King's Men...

I wonder what it means for the future of this country that Datuk Mukhriz Mahathir, a current UMNO favourite son and most certainly one whom the dizzying heights beckons, has taken the view that matters pertaining to the reform of the Judiciary are not a priority. As was reported in an article in The Sunday Star, the Honourable Member of Parliament for Jerlun questioned the need for judicial reform. He claimed that Malaysia would not crumble without these reforms and, in any event, they did not benefit the Malays or UMNO.

I would have thought that the question of whether the Judiciary and the wider system of justice are in need of reform is moot. Even without the acknowledgment by the Government earlier this year that steps had to be taken to restore confidence in the Judiciary, it is glaringly apparent that all is not as it should be. Standards of judicial competence are worryingly low as is public certainty of the integrity of the judicial process. This latter aspect is no longer a matter of speculation, delusion or political spin, the conclusions and recommendations of the Royal Commission of Enquiry on the VK Lingam video made things explicitly clear: things need to be sorted out.

Matters of judicial competence and integrity impact across the board; they are neither race nor political-party specific. Bad or skewed decisions hurt the wider legal profession and the nation as a whole as much as the litigants involved. One of the biggest difficulties practicing law at the present is the lack of certainty in the law, in part for there being a slew of decisions that have been adjudged without due regard to principle or precedent. In becoming precedents themselves, these decisions have undermined the foundations of not only the legal system but also the system of commerce that it supports. Commerce being wholly dependent on the certainty that only an effectively functioning legal system can provide, the current state of affairs is anathema.

It is for this reason that when entering contracts pertaining to Malaysia, many a commercial party now take pains to stipulate that the law of the contract is not Malaysian law and that dispute resolution is to take place outside the country. That is a cause for great concern, one that we have ignored for far too long to our own detriment. A weak system of justice does no favours for the country in which it exists; it is a sure path to failure for driving investment away, much as we are currently experiencing.

Is this not a matter that affects the Malays and UMNO as much as the rest of us?

This is not just a matter of our all being Malaysians and having a common future. Malays are as much litigants before the courts as any other Malaysian. They are as involved in business and corporate deals as much as the next person is, even more some would say. A cursory perusal of the law journals would show just how far, just as they would the fact that they accuse, or are being accused, of cheating and breaching duties, or murder, rape or theft, just like anyone else. UMNO itself is capable of being dragged into court just like any other society and has in fact been there before.

Surely a stronger, independent and more competent Judiciary would benefit these quarters, as much as they would everyone else? After all, justice is supposed to be blind.

I think Datuk Mukhriz Mahathir has much to offer this nation, in parliament and outside it. His reasoning in this instance is however sorely misconceived. The said article suggests that he has formed the view that the reforms are an expression of anti-Mahathirism, notably that of Datuk Zaid Ibrahim. Though I will not speak for the former Minister in charge of legal affairs, he is more than capable of doing that for himself, I will say that the potential UMNO Youth Chief may have mistakenly confused an articulation of the need for reform with a personal attack on Tun Mahathir.

The call for reform started long before Datuk Zaid Ibrahim made headway in UMNO. It was prompted by the serious consequences of the 1988 attack on the Judiciary and the Rule of Law. Many in one form or the other, including the Judiciary itself and great legal luminaries such as His Royal Highness Sultan Azlan Shah, have taken it up. Their message is clear; something needs to be done.

The Malaysian Judiciary was once respected throughout the Commonwealth, it no longer is. Its foundations have suffered a beating from the shockwaves that emanated from the events of 1988. The testimony at the Lingam Commission hearings showed how much they still reverberate and, for that, how precarious the position of the institution is.

Is it in danger of collapsing, taking the nation along with it? Only time will tell. The question for us all, Datuk Mukhriz included, is whether we want to wait to find out.

(Malay Mail; 14th October 2008)

Malik Imtiaz Sarwar

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