Restoring the Rule of Law

THE 14th General Election was a rebellion of sorts. Against abuse of power, tyranny as exercised through an armoury of repressive laws and the divisive political culture. And some of our institutions and their heads were complicit in this treachery – as new Prime Minister Tun Mahathir Mohamad declared openly.

The promise is to check abuse of power. By restoring the "Rule of Law". Tun repeated it many times; and on cue even the police chief, for the first time ever.

First, "Rule of Law" is not to be confused with rule by law. For the worst possible acts can be done under a law of a repressive regime. Hitler's killings were based on laws passed by the German Parliament.

Rule of law goes well beyond written law. It is about accountability, just laws, open government and access to an independent judiciary. Let's look at each in turn.

First, the government and the private actors are accountable under the law. The most glaring deficit of this was seen in the way the 1MDB scandal was handled. The previous AG, who allegedly had a firm basis to proceed against the outgoing PM, was summarily removed and replaced by a new AG, who then swiftly exonerated Datuk Seri Najib of any wrongdoing. The Public Accounts Committee's work was dismantled when some of its members were made ministers. Bank Negara officials were leaned upon. The audit report on 1MDB was placed under the Official Secrets Act 1972 (OSA).

A Royal Commission of Inquiry (RCI) into age-old Bank Negara's forex trading losses was set up – while current gargantuan losses ignored – 1MDB, Felda, Mara and Tabung Haji. A classic example of selective politically-motivated distortion of accountability.

The new government has undertaken within the first 100 days to set up RCIs into the above losses. The 1MDB audit report removed from the OSA's secrecy. And all heads of department are to be held accountable for being complicit in any wrongdoings. This is the rule of law in action.

Then laws must be just; and applied evenly; and protect fundamental rights. Najib piled up laws antithetical to these values. Such as, to name a few, the Communications and Multimedia Act – Section 233(1)(a) (CMA), Prevention of Terrorism Act 2015, Security Offences (Special Powers) Act 2012 (Sosma), National Security Council Act 2016, and amendments to the Penal Code.

Worse was their selective use to thwart dissenting views. Fahmi Reza, a graphic designer – jailed for online drawing of an edited image of Najib in February this year. An opposition lawmaker – Sivarasa Rasiah – charged for depicting Najib as a kleptocrat in a simulated Time magazine cover. Another blogger charged for condemning Najib rather stridently as regards the now-failed TPPA trade agreement. And loads more.

The AG's credibility has been openly castigated, despite his rather pathetic protestations. He is headed to be replaced for what are perceived to be ill-advised prosecutions; and for exonerating Najib for the 1MDB scandal against the evidence marshalled in countries around the globe.

The new government has vowed to repeal a whole plethora of anti-human rights laws that, Mahathir says, were enacted and enforced to conceal Najib and his cohorts' wrongdoings and to suppress dissent. The most outrageous of which was the jailing of then Bersih chief, Maria Chin, on the eve of its mass rally to protest the lack of fair and clean elections by a partisan Elections Commission.

And the unkindest cut of all. In a matter of hours on election eve, Najib rushed through Parliament two laws: on re-delineation which reshaped electoral boundaries to favour his party; and on Anti-Fake News – to punish online newspapers and others for "fake" news. Designed it appears, to prevent the discussion of "uncomfortable" matters – such as misappropriation of billions. All these clear transgressions of the rule of law element of an open government by which laws are enacted, administered, and enforced and are accessible and fair.

The new government will be reviewing these laws and institutions: the Elections Commission, the MACC and the like – to bring them in line with open, transparent governance.

Many of the actions taken were brought to court and challenged as improper or unconstitutional. Alas, often (though not always – depending on who was empanelled to hear the case) – the judiciary was found wanting. Exacerbating a widely-held public perception that where the citizenry challenged the executive, the judiciary abstained. As demonstrated repeatedly in challenges to the electoral delineation and electoral roll. The judiciary stubbornly refused to adjudicate the issues raised, saying it was to be decided by Parliament. Where the then government party members simply shouted out objections at a rowdy and uncouth parliamentary session.

The independence of the judiciary has also been assailed by the Bar Council in a legal action challenging the constitutionality of the appointment of the highest judicial officers by the prime minister.

On the cards is the revamp of the judiciary and the Judicial Appointments Commission. To embed the rule of law element of an "accessible and impartial dispute adjudication".

The country is on the move. In a direction hailed by all as ushering a new dawn. The beat is palpable. The promise of entrenching the rule of law in the body politic marches to this beat.

Gurdial is a former law professor. Comments: