Right to Due Process Above all the court must be independent and impartial by Param Cumaraswamy
Prime Minister Datuk Seri Dr Mahathir Mohamad is reported in the print media today (7 Nov 2000) to have said, amongst others, with regard to the trial of Datuk Seri Anwar Ibrahim that �the trial lasted one year and was conducted in English � and Anwar was defended by nine of the country�s best lawyers � and yet they say there is no due process � I do not understand the due process (which they mean).� Due process which in effect is the right to a fair trial is not measured just by the length of the trial and the number of lawyers, however eminent, who defended the accused and the language in which the trial was conducted. The right to a fair trial under international law, and indeed under Malaysian law, involves other procedural essentials. The most essential is that the trial court must be independent and impartial and must be perceived to be so. Similarly the appellate courts hearing the appeals must be independent and impartial. Another essential ingredient is the right of the accused to call and obtain the attendance of and examine witnesses on his or her behalf under the same conditions as the prosecutor. In effect there must be equality of arms which is vital for a fair trial. If these basic essentials are not apparent in the trial process, though other procedural rules may have been met, the accused cannot possibly be said to have had due process or a fair trial.
It must also be remembered that the right to a fair trial is a basic human right enshrined in all major international and regional human rights instruments beginning with the Universal Declaration of Human Rights 1948. When this right is denied or is seen in jeopardy, everyone has the right, individually and in association with others, to peacefully protest and call for protection of the right by the competent authorities. The United Nations Declaration on Human Rights Defenders 1998 obligates the Malaysian Government to give space for such expressions and take note of the protests. Suppressing such peace protests by police actions on the premiss that the protesters had no police permit is just not the way. If police permits are needed then issue the permits and let democracy prevail. On international protests, in this day and time, nations, big or small, powerful or weak, cannot escape scrutiny by the international community over human rights violations. It will be a matter of time national sovereignty will be seen as a defence of the past.
| ||||||||||||||||
The events prior to the trials and during the process of the trials of Datuk Seri Anwar Ibrahim certainly raised, and will continue to be raised, serious issues as to whether these important essentials of a fair trial were met. Hence the national and international concerns of the fairness of the two trials. Repeated assertions of the government�s confidence in the trial processes amidst public concerns and suspicions only further confirm these concerns and suspicions. Here the government may well be advised to take heed of Singapore Senior Minister, Lee Kuan Yew�s observation at the end of his recent visit to Kuala Lumpur when he expressed bewilderment over of Malaysian public�s scepticism and cynicism over government�s statement and actions.