MySay: Raising the bar by preserving and furthering the rule of law

This article first appeared in Forum, The Edge Malaysia Weekly, on August 20, 2018 - August 26, 2018.
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It is, I believe, no exaggeration to say that ours is an era of considerable political uncertainty — even crisis — on a global scale. Many countries today maintain the outward semblance of democracy and the rule of law while rolling them back and undermining their key institutions. In the Freedom in the World 2018 report, published by Freedom House, its president, Michael Abramowitz, states, “Democracy is in crisis. The values it embodies — particularly the right to choose leaders in free and fair elections, freedom of the press and the rule of law — are under assault and in retreat globally.”

Freedom House’s findings are that 71 countries experienced net declines in political and civil rights last year, compared with only 35 that registered net gains. This was, moreover, the 12th consecutive year in which global freedom experienced a decline. I am hopeful that Malaysia, on the other hand, will be one country that registers net gains in next year’s report. Even so, national improvements are of limited consolation when the prevailing global trend is downwards. Recent reports by the respected International Commission of Jurists (ICJ) also speak of the growing encroachments on civil liberties, marginalisation and scapegoating of certain religious or ethnic groups and the wielding of authoritarian power, often behind a façade of democracy.

The ICJ has voiced concerns about executive interference with judicial independence in several countries, an action that directly undermines the rule of law. In the face of these escalating threats, it is more important than ever that we develop effective strategies to strengthen the rule of law against corruption and abuses of power, for generations to come.

As members of the professional legal fraternity, you will no doubt be very familiar with various definitions and debates surrounding the concept of the rule of law. Permit me, however, to briefly outline my understanding of the notion as the basis of this address. The rule of law requires the effective separation of powers among the various branches of government — the executive, legislature and judiciary. This separation allows for a truly independent judiciary that is not only learned and wise but also principled and courageous.

It should also ensure that all persons, including governments, are held accountable to the law, no matter how powerful or wealthy they may be. As my late father, His Royal Highness Sultan Azlan Shah, famously wrote in a landmark judgement: “Every citizen, irrespective of his official or social status, is under the same responsibility for every act done without legal justification. This equality of all in the eyes of the law minimises tyranny.”

The rule of law is thus inextricably connected to the protection of fundamental human rights and preservation of human dignity as it prevents corrupt public officials from using their power to persecute or discriminate against particular groups or individuals. Ultimately, the acid test of the robustness of the rule of law in any society is the fate of the ordinary citizen, someone with limited means and without political power. Where the rule of law prevails, every citizen should have proper access to the law and be fully protected by it. But where the rule of law exists in name alone, there will inevitably be victims and victimisers.

Restoring the rule of law is always a far greater challenge than destroying it. It is not a task that can be undertaken with small steps, cynical compromises and half-hearted measures. It is not sufficient, moreover, to tackle only the individuals most directly responsible for the breakdown of the rule of law. Institutions and processes must also be fundamentally reformed and strengthened to safeguard against relapse.

This endeavour is likely to meet with fierce resistance, especially in settings where the networks and cultures of corruption and abuse of power have penetrated deep into the fabric of society, becoming almost de facto norms. The necessary institutional reforms may have to take place in the midst of such entrenched interests and determined pushback by those affected.

First, a separation of powers must be implemented as completely and effectively as possible within the limits of governing systems. In parliamentary democracies such as Malaysia, control over the executive branch is the direct result of commanding a majority in the legislature. This fusion is said by some scholars of constitutional theory to make parliamentary democracies inconsistent with the principle of separation of powers. There is, however, growing evidence to suggest that parliament can and does influence executive decision-making in practice, with far more formal and informal contestation of power than might appear to be the case in theory.

The formation of bipartisan select parliamentary committees, for example, is a common practice in the Commonwealth. But the reports of such committees are not always given sufficient attention by the executive, a shortcoming that should be addressed. Easier parliamentary procedures should also be established to ensure free, conscience and secret voting on matters of overriding national interest. Members of the legislature owe their first allegiance to the nation itself, as set out in their oaths of office.

In this country, their responsibility is to “bear true faith and allegiance to Malaysia and to preserve, protect and defend its Constitution”. For countries with bicameral parliaments, greater efforts should be made to ensure the effective participation of their upper houses, particularly where their roles have been reduced to mere formalism. So, although some influencing of the legislature by the executive may be unavoidable, the separation of powers within government must be consistently maintained through these and other means.

A second important aspect, closely related to the separation of powers, is judicial independence. We must constantly aspire to and work towards the highest standards of judicial independence. We must indeed raise the bar in this singularly important matter. Judicial independence is especially important in parliamentary systems, where the executive and the legislature are to some extent fused. Judicial oversight and review of constitutional and administrative law and practice on matters of national and public interest are essential to ensure that these comply with the spirit and substance of the law.

In keeping with human nature, even the fairest-minded of judges may be influenced and swayed by their own world views and personal predispositions. The judiciary should, therefore, be drawn from as diverse a range of gender, ethnic and cultural backgrounds as possible, to ensure the equitable administration of justice. In Malaysia, the Federal Constitution requires the Conference of Rulers to be consulted on the appointment of the chief justice and other senior judges. The responsibility of choosing judges of quality and character is an onerous one, and this consultation should not be treated as merely procedural and taken lightly. It is also important for judges to have guaranteed security of tenure so that they are able to conduct their work shielded from undue intimidation and fear.

As a third important step, countries should accede to and ratify existing international instruments, and ensure closer national compliance with them. Countries that have already acceded to these instruments should make greater efforts to reduce reservations and derogations from them so as to give greater force to the international legal norms that they enshrine. They are the gold standard to which all nations must aspire.

Aspiration cannot remain as mere rhetoric, however. It should also not be used as a convenient cloak for the continued curtailment of rights, or at worst, for abuse of its citizens by the state. Aspiration must rather be matched by sincere and strenuous endeavour to undertake the reforms that are necessary to achieve closer compliance with universal human rights and norms.

The recent change of government here in Malaysia has given fresh impetus to efforts to strengthen the rule of law in the country. Laws that are deemed restrictive of individual liberties are being reviewed. Efforts are underway to remove undue constraints on the media. Steps are being taken to remedy and revitalise the core institutions of democracy and good governance, including the Election Commission, parliament, the judiciary, the regulatory and enforcement agencies and the anti-corruption commission. We look forward to all these important initiatives reaching full fruition. The people of Malaysia and the country deserve no less.

If there is one international instrument to which all countries should voluntarily accede to out of a sense of enlightened national interest and on which countries should intensively cooperate, it is the 2003 UN Convention Against Corruption

(UNCAC). The UNCAC, which Malaysia signed in 2003 and ratified in 2008, is aimed at the prevention, investigation and prosecution of corruption, and the freezing, seizure, confiscation and return of its proceeds. This international convention does have its limitations, but it is an essential element of international legal structures, which is supplemented by bilateral mutual legal assistance agreements. Only through such means can the ability of the executive to delay or stymie investigations into corrupt practices, in which they themselves may be implicated, be minimised.

The fourth and final measure that I want to touch on concerns the success and longevity of the reforms I have outlined. For these to be sustainable, countries must work towards developing a “whole-of-

society” approach to the rule of law. For too long, we have left the fight to jurists, to the legal fraternity more broadly, such as those gathered here today, and to the activists of civil society, often at great personal sacrifice. Large segments of the adult and voting population have excused themselves from responsibility on the grounds that they lack sufficient knowledge about the law, in order to get on with their personal lives. But the rule of law and the administration of justice are far too important to be left to a select few. A whole-of-society approach recognises the crucial roles played by all stakeholders, individually and collectively, through civil society organisations, academia, the media and other channels, and strategically coordinates them in meaningful ways.

Citizens need to recognise that democracy without the strong rule of law is merely demagoguery by another name. Voters must understand that their responsibility to democracy and the rule of law does not end at the ballot box. Voter education tends to focus on the holding of free and fair elections and little else. But a healthy and functioning democracy is not just one that gives voice to different constituencies at election time, as noisy and fractious as this process may be. Rather, it is one in which the law creates a boundary beyond which none, no matter how powerful, may trespass without penalty.

Citizens must grasp that a robust rule of law means that they cannot pick and choose among judicial decisions, supporting only those that favour their own interests and rejecting the very concept of the rule of law when it goes against them. A whole-of-society approach, in contrast, requires that all develop an innate res-

pect for the rule of law and for legal institutions, even when individual rulings contravene their own interests.

I have, I hope, emphasised the unparalleled importance of upholding the rule of law in order to maintain a society that is peaceful, orderly, safe and just for all of its citizens. This is why the rule of law or kedaulatan undang-undang is one of the five key tenets of our Rukun Negara. This point serves to highlight the great significance of the Malaysian Bar and the enormous potential of events such as today’s conference, which brings together so many of the finest legal minds, practitioners, experts and scholars to share know-

ledge and to exchange ideas relating to the preservation and furtherance of the rule of law. Those of you gathered in this room this morning are, I know, already well aware of the importance of such discussions and the actions that follow from them. As the legal fraternity, you are the ones at the forefront of this struggle.

In closing, then, I would like to share an anecdote that I hope can inspire all of us to remain committed to the rule of law, its furtherance and its protection, even in the face of opposition and adversity. It is an anecdote that reminds us just how old this struggle is. The honourable Michael Kirby, a noted Australian High Court judge, tells the story of when Sir Edward Coke, an eminent 17th-century English jurist and the Lord Chief Justice of England and Wales, fell to his knees in fear as he reminded his ruler, King James I, that his king too was “subject to God and the law”. This was an act that took tremendous courage, especially in those days, and was not without its consequences.

Sir Edward was transferred and then dismissed from the King’s Bench, but he later returned as a leading opposition parliamentarian and played a role in the 17th-century re-shaping of the British Magna Carta. He was always committed to upholding the rule of law in the face of potential tyranny, and his determined adherence serves as an example to the rest of us. As Justice Michael Kirby puts it in his retelling of the story, “We have modern kings. Happily, we also have modern Cokes.”

My final message, then, would be to encourage all of us, wherever possible, to act as these “modern Cokes”, to be brave and principled in our commitment to the rule of law, to uphold it and protect it, and to remain strong in the face of those who would rather subvert or ignore it. I have no doubt that I stand, today, in a room of modern Cokes, and this, I believe, is something that should give us reason to be more optimistic about our global future.

Sultan Nazrin Muizzuddin Shah is the Sultan of Perak. This article is an excerpt from his keynote address delivered at the International Malaysia Law Conference in Kuala Lumpur on Aug 14.

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