Rulings Represent the First Check on Mahathir Regime in a Decade : Judicial Bravery Startles Malaysia
International Herald Tribune
July 2, 2001
Thomas Fuller

A series of high-profile court rulings against the government recently has surprised lawyers in Malaysia and has provided the first significant legal check on the administration of Prime Minister Mahathir bin Mohamad in more than a decade.

In the last four weeks judges have freed members of the opposition who were detained under a draconian security law, exposed and invalidated sham elections and criticized a judge who convicted the government's most prominent dissident.

Lawyers attributed the judiciary's new activism to the appointment last December of Mohammed Dzaiddin Abdullah as chief justice. Mr. Dzaiddin is respected among the legal establishment and soon after his appointment he vowed to tackle the public's "negative perception" of the judiciary. But lawyers here also say they wonder how long Mr. Mahathir, who has been in power nearly 20 years, and his authoritarian government will tolerate such challenges.

"There is definitely a resurgence of judicial independence," said Param Cumaraswamy, a Malaysian lawyer who also serves the United Nations as special overseer of independence for judges and lawyers. "The only concern is the political forces and how they are going to react."

For a decade, the country's courts have played a key role in buttressing Mr. Mahathir's administration. They have jailed or fined government critics and cases against the administration often have foundered. The recent decisions, however, have dealt blows to the government in several sensitive areas.

The Federal Court, the highest in the country, ruled during an appeal last week that the judge who presided at the conviction of Mr. Mahathir's principal political foe, Anwar Ibrahim, had displayed "a blatant disregard of rules of procedure" during one of Mr. Anwar's trials. Mr. Anwar, a former deputy prime minister, is serving 15 years in prison for abuse of power and sodomy.

In their ruling Thursday, the court's three judges unanimously dismissed a contempt-of-court conviction against one of Mr. Anwar's lawyers. "We are left with an unenviable position of questioning the motive" of the prosecutor in Mr. Anwar's trial, Justice Steve L.K. Shim wrote in his judgment.

Lawyers for Mr. Anwar say they are considering how the judgment can be used to buttress Mr. Anwar's appeals.

"We are still working out the right way of putting it," said Sankara Nair, one of Mr. Anwar's lawyers. "We could throw a certain imputation that the judge was biased."

The still far-off prospect of a successful appeal by Mr. Anwar — and freedom for the former deputy prime minister — is, at the very least, unsettling to Mr. Mahathir, who has faced increasing dissent from inside as well as outside his party.

Mr. Anwar continues to be popular and is one of the few politicians in the country capable of galvanizing the opposition against the prime minister.

In the meantime, however, an increasingly independent judiciary could hurt the government in a host of other cases, including who has the right to tens of millions of dollars in oil royalties.

Malaysia's main opposition party sued the government to reclaim the oil money, which was diverted by Mr. Mahathir after the opposition captured the oil-producing state of Terengganu in the 1999 elections. Terengganu's government, which was controlled by Mr. Mahathir's party for more than a decade, had been receiving the royalties.

The return of the money to the Terengganu government could boost the opposition, which stripped the ruling party of about 20 percent of its seats in the last election.

A recent decision by a judge in the eastern state of Sabah also raised the possibility that future elections may be scrutinized more closely by the courts.

In early June, Justice Mohammed Kamil Awang nullified the election of a high-profile member of Mr. Mahathir's ruling coalition, saying the politician had been elected by nonexistent voters. In his ruling, the judge stunned the legal establishment by revealing that he had been given a "directive" over the phone to dismiss the case.

The judge later revealed that the caller was the country's then-chief justice, a controversial figure who once was photographed on vacation in New Zealand with a prominent lawyer who was arguing a case before him.

Justice Mohammed Kamil described the chief justice's directive as an "insult to one's intelligence" and said that he had decided to ignore the phone call and to "act as a judge and not a 'yes man."'

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