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The Anwar injustice, death and public flogging for rapists, and the judiciary's independence

THE MALAYSIAN FOREIGN MINISTRY tells the US State Department the Anwar Ibrahim trials from the start were, and are, conducted to the highest standards of Malaysian justice, the former deputy prime minister is found guilty in a Malaysian court of law which, lest it forgets, had in the past convicted "many" prominent Malaysians. He is accorded all the rights available in criminal jurisprudence, and is defended by some of Malaysia's best lawyers. No one, the spokesman said, including Dato' Seri Anwar, is above the law. Justice is served and human rights respected in the Anwar case. It is not for any foreign country to tell Malaysians how it must conduct its activities. And none should interfere in Malaysia's affairs. This, in sum, is what he said in response to the State Department's claims of flaws in the judicial procedure which convicted Dato' Seri Anwar and, last week, denied bail. The State Department reacted on the same day Dato' Seri Anwar was denied bail by the Court of Appeal. Why did it wait a week to respond?

The Prime Minister, Dato' Seri Abdullah Ahmad Badawi, had made it clear the judiciary is independent and pure as the driven snow. No one should question that. It does not matter that Dato' Seri Anwar is convicted to a larger political purpose which has nothing to do with what he is charged for, and he is where he is for that. It does not matter that he is arrested and humiliated according to a plan concocted by a cabal of the highest leaders in UMNO, which included the present prime minister and deputy prime minister. It does not matter that, as details surface, there was a plan to kill him shortly after his arrest but that was thwarted because of the presence of too many witnesses at his house, and his wife's insistence that she accompany him to the police station, and the subsequent karate chops on a blindfolded and manacled had a more sinister purpose. It does not matter that in his trials for corruption and sodomy, the judiciary was as eager as the prosecution to convict, whatever the rebuttal of the evidence presented. It does not matter that the chief justice did not respond to the mayhem at the Court of Appeal when he was denied bail. It does not matter it took six months to deny bail. It does not matter that it is now accepted as done that he would not be allowed bail.

Constitutional guarantees and Prime Ministerial assertions do not an independent judiciary make. It is in the practice of justice and the conduct of its justices that ensure an independent judiciary. When justice is to the highest bidder, for that is the way it seems in many high profile cases before the court, and denied when the power in the land does not want it, and chief justices and attorney generals go on holidays with high profile lawyers and their clients, when simple decisions as delayed and denied for the most extraordinary reasons, none of which has any relevance to the issue in court, justice is denied. When it strays into the political arena, any hope of justice is lost.

If Dato' Seri Anwar is not the high profile politician he is, and he accepted his fate as good and loyal UMNO members should, it would not have mattered. But he is and did not. And turns every trick in the book to turn Malaysian justice into a political issue. He succeeded. Especially when the UMNO-led Government believes the judiciary is there to do its dirty work. The speed with which the Malaysian cabinet decided on the death sentence for rapes that end in death, with another for public flogging of rapists on the cards, shows it would do anything to divert public attention from the self-destruction of the BN from within. Was the chief justice consulted on this new law? Does he believes death and public flogging is the best way to control the rapes that take place in Malaysia every day? Should the judiciary be forced to react to individual cases highlighted to stiffen the law to divert a political difficulty? Especially when there is no evidence that the enhanced penalties enacted two years ago are fully implemented.

But the judiciary fell into line, and quickly sentenced a man found guilty of rape to the maximum possible. Has any one taken into account that it is the neglect of police in not making their presence known in the communities where they are assigned that allows crimes, not just of rape, to be committed? When law and order is viewed as a political convenience, can there be law and order? In the last three decades, mandatory death sentences were the norm for a range of offences, justified on the presumption that it is a deterrent. Yet the deterrence is ignored for we rarely know of the sentences carried out. There is a reason for it. The public would not accept it as it once did of frequent executions. And so it must now be carried out in secret. The instant solutions taken at the heat of the moment with little thought cannot stand the test of time.

The judiciary should not react to public and political pressure. But it cannot. It has involved itself in several high profile unsavoury episodes which questions its independence from the executive. It began with the removal of a chief justice from his own court. That was more to tell those who followed, the fate that awaits them if they dared to give judgments that puts the government or the BN on the defensive. Little has changed since. We have on the bench too many judges there not for their competence but for political reliability or who could produce the judgments those who matter, business men or politicians, demands. (It does not matter how many; one is too many; and there is more than one.) When the government decides it would recommend for promotion only from this group, and the chief justice only too happy to agree, whatever the Prime Minister and Wisma Putra has to say about the independence of the judiciary in Malaysia is not believed.

For justice does not function in isolation. When it cannot defend itself because of its own deliberate mistakes, and protects itself from outside pressure by hoping the politicians who subborned it would back them, when a judge cannot or is not allowed to function as a judge, the idea of an independant judiciary recedes further into the background with every political defence and political use of the judiciary and judges. When Dato' Seri Anwar turns the judiciary into a political tool of his oppressers, and the oppressers turn it into a plaything to get it out of its political difficulties, and laws are passed for a narrow political purpose, an independent judiciary becomes an ideal to fight for as justice itself. With or without Dato' Seri and death and public flogging for rapists.

M.G.G. Pillai
pillai@streamyx.com