At the same time a High Court judge (Aidit) wrote a scathing memorandum about the Judiciary; the investigations by the Attorney General resulted in nothing more than that judge's resignation. Poison letters continue to circulate widely. Another judge (Visu Sinathurai) resigned rather that being transferred to Tawau.

Photographs showing the families of lawyer V.K. Lingam holidaying with the family of the Chief Justice in New Zealand and the family of the Attorney General in Italy were posted on the Internet: http://www.malaysiakini.com/archives_news/2000/may/may30/news2.htm. ("I'm not in the position to say whether I approve or not, but certainly, such socialising is not consistent with the proper handling or behaviour of a judicial personality", said Dr Rais Yatim, Minister in the Prime Minister's Department.) Allegations that Lingam wrote parts of the judgment for a judge (Mokhtar Sidin) were pleaded by Raphael Pura in his defamation case.

It is therefore no surprise that the judiciary has received much negative comment in the last four or five years. It even became an important issue in last year's General Elections, with the opposition parties criticising its conduct while the Prime Minister, on behalf of Barisan Nasional, strongly defending its independence and impartiality. The Malaysian Bar for its part had, from time to time, in this period publicly criticised the Judiciary and had also passed resolutions on the performance of the Bench, which in turn resulted in individual lawyers being cited for contempt or having their cases struck out because of the one-inch margin rule and the like.

It was against this background that four well known and well respected International Organisations for lawyers appointed a mission which visited Malaysia in April 1999 and issued a report entitled "Justice in Jeopardy: Malaysia 2000" in April 2000. The

report of the mission on behalf of the International Bar Association, The ICJ Center For The Independence Of Judges And Lawyers, The Commonwealth Lawyers' Association and The Union Internationale Des Avocats is posted at http://www.ibanet.org/misc/pressrel.asp

The mission comprised two judges, one from the Court of Sessions (Supreme Court) of Scotland and the other from the Supreme Court of Zimbabwe and a Senior Advocate of the Supreme Court of India. Their individual distinction and reputation and their intellectual background of being steeped in the common law is significant. Any report of an international mission of such standing must be taken seriously, especially since it met representatives of the Executive, the Judiciary, the Legislature, the Bar and non-government organisations, during its fact finding visit to Malaysia.

The report traces this relationship from the Bar's protest in 1977 against the ESCAR Regulations which resulted in sweeping amendments to the Legal Profession Act, 1976 ("the LPA"), including the 1/5 quorum rule, to the Attorney General's threat in 1996 to reform the legal profession by diluting the power of the Bar Council.

Among the mission's recommendations on the Bar's relationship with the Executive are that :-

B. Relationship between the Bar and the Judiciary

The mission accepts the popular view that the Bar's relationship with the Judiciary became "extremely strained" after the Bar passed a vote of no confidence and refused to have any social dealings with Tun Hamid Omar upon his acceptance of the office of the Lord President in August 1988 in the aftermath of the suspension of six Supreme Court judges and the subsequent removal of three of them, including Tun Salleh Abas, the then Lord President. According to the report "what has now emerged is a situation which engenders distrust and hostility."

After reviewing the recent spate of contempt cases against members of the Bar, including those concerning past office bearers of the Bar, the mission concludes :

"The Zainur Zakaria case has troubled lawyers greatly. It is no one's case that Mr. Zakaria did not act bona fide. This was not a case of wilful contempt. Nor does it become one simply because he refused to apologise for the bona fide reason of not wanting to jeopardise his client's interest to save himself. Therefore, quite apart from the intricacies of the law of contempt, the decision puts lawyers in a professional dilemma. If they are to defend their client's interest without 'fear or favour', and feel that they have enough material to make good an application, plead, or argument, should they refrain from doing so for fear that a judge may find a discrepancy in the argument or an insufficiency in the evidence? The decision was ultimately for the judge. If lawyers, as a profession, feel that the bona fide discharge of their duty would result in action and imprisonment for contempt, they would be justified in seeking a change in the law of contempt."

The mission did not accept the view expressed by some of the senior judges whom the mission met that contempt power was necessary to fill a gap which they saw in the procedures designed to maintain the professional standards of younger lawyers who appear in Court. Further, the report observed that unprofessional conduct should, save in very exceptional circumstances, be dealt with by professional bodies, like the Disciplinary Board.

The report found the determination of the Court of Appeal that Lim Guan Eng's remarks contrasting the treatment meted to a minor to that enjoyed by a former Chief Minister of Malacca as being critical of the Judiciary "difficult to understand. Whatever the appellant did in making the speech he made, he was not attacking the judiciary". The report further observed : "With regard to the sentence imposed by the Court of Appeal, frankly, we were dismayed. Having regard to all the circumstances of the case, it is difficult to see how they could possibly be justified."

The mission was critical of the injunction granted against the Malaysian Bar from holding an EGM in October 1999 to debate a motion criticising the state of the administration of justice, and saw it as another example of the apparent willingness of some members of the judiciary to try to stifle public comments on the justice system. The Report was also concerned about the prior restraint of such a meeting because statements made thereat at may constitute contempt of court.

As one would expect, the Report found it impossible not to give some expression of their views on the Anwar Ibrahim trial. According to the mission members "the concerns have come not just from the defence lawyers in the trial but from every practising lawyer that the mission spoke to and from passing discussion with members of the public. There has also been concern expressed by others round the world."

After full and detailed consideration of the case and its surrounding circumstances, the mission was of the view "that the concerns raised in Malaysia and by the International Community are fully justified". Among the points which raise legitimate concerns were :-

Among the recommendations that the mission makes to repair the relationship between the twin pillars of the administration of justice, that is, the Bench and the Bar are:-

The mission observed that Malaysia, as a member of the United Nations, is obliged to uphold the principles of the Universal Declaration of Human Rights, 1948 under which everyone has the right to life, liberty and security of person, equality before the law without discrimination and to a fair and public trial. Malaysia's failure to accede to the main international human rights treaties that codify and elaborate on rights in the Universal Declaration is regretted.

The mission remarks that the independent observer, thus, cannot but be struck by certain provisions within Malaysian legislation that are essentially restrictive and well outside the ambit of international standards, and in a damning conclusion states:-

"….. we think needlessly repressive legislation that has impacted crushingly upon the agencies of the law – the judiciary, the legal profession and the police. The true spirit of justice under the law has been weakened. In such a climate authoritarian personalities flourish; libertarians are frustrated, practitioners are reduced to increasingly frenzied posturing; and the police wield extensive and largely unchecked powers that, in Lord Acton's famous words, 'tends to corrupt'." (Our emphasis)

The mission saw no objective need for the continuation of the State of Emergency imposed after the outbreak of the May 1969 riots. In the words of the report:-

"The continuation of the Emergency Ordinary after the need for it had passed can have an insidiously brutalising effect upon the administration of justice in any country. We suggest that the Malaysian malaise may be due in no small measure to the gradual acceptance of a state of emergency as the norm of government."

Not surprisingly, the report therefore calls for the repeal of the Internal Security Act, 1960 and a raft of other repressive statutes. They note that although the Malaysian Constitution guarantees important rights, these rights are often deprived of their meaning and force by legislation, many of which also deny judicial review of executive action; a body of restrictive legislation thus exists in Malaysia that requires major change if the nation "is to be ruled in accordance with a just rule and law." The mission is of the view that so long as this legislative framework remains unchanged, proposals to improve the positions of the judiciary and the legal profession can be no more than palliative. "This does not mean that the judiciary should continue to act as it does now. The judiciary also has an important role to play in softening the effect of the laws through interpretation and application of the principles of justice and equity. We urge the judges to have the courage to rise up to this challenge. Otherwise, judges will continue to be considered as a tool to quell political dissent and free expression."

The Judiciary has a central role as the third branch of Government in the separation of powers that characterises our system of Parliamentary Democracy. This role is enhanced in our system where the Federal Constitution is the supreme law of the land and where judges are not only the ultimate arbiters in disputes between the State and an individual and between individuals but also entrusted to determine the constitutionality of executive and legislative action.

What ultimately underpins the judiciary is public confidence. Public confidence was seriously eroded by the conduct of the judiciary, particularly in the spate of controversial cases that were earlier mentioned; the mission's report vindicates the public disbelief in these decisions. The latest episode concerning the allegation that a Malaysian Judge plagiarised the judgment of a Singapore Judge is not a step in the right direction. If the judges wish to regain public confidence they have to properly carry out their constitutional duties; nothing short of that will do.

Aliran is impressed by the report, which is well-considered and well-reasoned, written in sober and non-emotive language, arriving at well-balanced conclusions with moderate, reasonable and attainable recommendations.

Aliran calls on all parties involved in the administration of justice to do every thing to implement its recommendations. Aliran also calls upon the executive and judicial branches of government to join the Malaysian Bar to move forward into the new Millennium with the objective of creating a truly just rule of law for every Malaysian, so that the solemn promises made to posterity by the First Prime Minister, Tunku Abdul Raman on Merdeka Day, 31 August 1957 that Malaysia will forever be a democratic state "founded upon the principles of liberty and justice" and that the Federal Constitution is adopted to safeguard "the fundamental rights and liberties of the people" will not be pious hopes but a reality. Implementation of the recommendations of the mission's report will go a long way to achieving this.