Countries can't afford to lose trust in their judiciary

Former Malaysian prime minister Muhyiddin Yassin waves outside Kuala Lumpur Court Complex. Reuters

When Tan Sri Michelle Yeoh – to use her Malaysian title – became the first Asian to win the Best Actress Oscar on Sunday night, no one was prouder than her mother, Janet. Watching the ceremony live at a viewing party in Kuala Lumpur, she said: “She's a very hardworking girl and I love her very much. Malaysia boleh!” The last words, which loosely translate as “Malaysia can do it!”, are a slogan from the 1990s that were used whenever the country achieved another breakthrough – building the tallest twin towers in the world, getting the first Malaysian astronaut into space and so on.

Just days before, another milestone was marked when the other TSMY – as both are known on social media – Tan Sri Muhyiddin Yassin, became only the second former prime minister in the country’s history to be charged in court. If found guilty of abuse of power and money-laundering during his 17 months in office (2020-21), he faces up to 20 years in jail. This raises a number of issues, but prime among them is just how important the independence of the judiciary is, and if certainty about that independence disappears, how difficult it is to win it back.

Mr Muhyiddin proclaims his innocence and said the accusations were “organised political persecution”. Prime Minister Anwar Ibrahim and his colleagues reject this, saying they have nothing to do with the investigation and the charges, which are under the purview of the Malaysian Anti-Corruption Commission (MACC) and the Attorney General’s Chambers (AGC). “MACC and the AGC have stated that they have conducted this move independently and without any instruction, based on the facts that they have,” Communications Minister Fahmi Fadzil said. It is worth noting that the head of the MACC and the Attorney General were both appointed by Mr Muhyiddin when he was in office, so if anything they might be presumed to be well disposed towards him.

Either way, it will be for the courts to decide. The problem there is that ever since the judicial crisis of 1988, when the Lord President of the Supreme Court was dismissed because then prime minister Dr Mahathir Mohamad wanted to make the judiciary subject to the executive (ie, him), there have been question marks over their independence. In 2008, Dr Mahathir’s successor, Abdullah Badawi, said: “I feel it was a time of crisis from which the nation never fully recovered.”

There are certainly many fine jurists in Malaysia, but it is widely believed that there are some who are malleable. Mr Anwar made that very accusation when he was jailed in 2015, telling the judges who heard his case (for which he was later pardoned): “You have become partners in crime in the murder of judicial independence.” So where are the courts today? Nobody can be 100 per cent certain. The high regard in which the country’s judiciary was held prior to 1988 has been hard to regain.

Of course, the principle that no one should be above the law is a good one. But if it appears that one of the surest ways to end up behind bars is to have been a country’s leader, that isn’t necessarily healthy either. “Half of all living former South Korean presidents are now in prison,” began a 2018 report by the American Enterprise Institute. Referring to former leaders Lee Myung-bak and Park Geun-hye, it continued: “Lee and Park’s lengthy prison sentences may seem striking for an established democracy. But the reality is these sentences are not anomalies; rather, they reveal how tenuous South Korea’s hold on democracy really is.” The report concluded that there was a worrying trend combining “enthusiasm for the ‘lock him up’ school of politics and clear apathy toward democratic institutions”.

Alleged interference in the judiciary is the root of the EU’s dispute with Poland’s Law and Justice party government. Critics say the country’s Constitutional Court has been packed with loyalists, and judges have been wrongly disciplined based on their rulings. The European Commission has been holding up €35.4 billion ($38bn) in recovery grants and loans until reforms are made.

Lastly, there can be little doubt that one of the issues that has contributed to the breakdown of civility and norms in American political discourse has been the over-politicisation of the judiciary. Judges have records and particular views on the constitution: it is inevitable that that history will lead them in the particular American context to be regarded as generally “liberal” or “conservative”. But the refusal by Republicans to confirm the respected moderate Merrick Garland to the Supreme Court in Barack Obama’s last year as president, and the intensely partisan nature of Donald Trump’s appointments to all courts, have led to a drastic drop in faith in the Supreme Court’s impartiality. In one poll last year, only 25 per cent said they had confidence in it.

That is devastating, considering that of the three branches of government – the executive, legislature and judiciary – it is the last in which the public ought to have the greatest trust.

There is another way. A Malaysian man I used to work with – let’s call him “M” – was one of the country’s top civil servants, and then ran a government-linked organisation dedicated to dispassionate policy analysis and development. I sat in probably hundreds of meetings with him, in which he would outline the official positions, and then look at the possible ramifications, positive and negative, and ways forward.

He knew former prime minister Najib Razak (2009-18) well, and met him regularly. He had also worked with Dr Mahathir during his first stint as prime minister, from 1981-2003. I have often wondered how “M” voted in the 2018 general election in which the two sought to vanquish the other. But so scrupulous was “M”, a man of evident principle and integrity, in never, ever, making a party political point; so perfectly did he fit the civil service ideal of serving the “government of the day”, of whatever stripe; that till this day I have no idea for whom he cast his ballot in the most important election of his lifetime.

That is exactly how it should be. He would make a good judge. Your honours, your worships, justices and judges: take note. That is how you build confidence in the judiciary.