The Far Eastern Economic Review Issue cover-dated 9th August 2001

By Karim Raslan

The writer is a Kuala Lumpur-based lawyer and regional columnist At long last, the Malaysian courts have shown their mettle. After a slew of dramatic judicial decisions, including one that called for a review of the draconian Internal Security Act that allows for detention without trial, the judiciary has managed to arrest the decline of Malaysia's British-based common-law system. The turnaround has not been before time. After a decade during which the reputation of the judiciary plummeted to execrable lows amid allegations of sleaze, corruption and incompetence, the recent decisions represent a breath of fresh air. And there are several key reasons why the decisions have been so important.

First, the judges in question are not practising judicial activism. They are neither "making" the law nor playing politics. They are merely returning to the status quo ante, the situation that existed in the 1960s and 1970s when there were consistent flashes of judicial independence. Under the leadership of the current chief justice, Dzaiddin Abdullah, judges are once again endeavouring to be scrupulous and fair--deciding cases before them on the basis of the law and the facts they are presented with. Nothing more, nothing less.

Secondly, and perhaps most importantly, the recent decisions show that the common-law system is responsive to change and that it is not inherently corrupt or unjust. This is vital because the opposition Islamic party, Parti Islam SeMalaysia, or Pas, has maintained that the common-law system is totally un-Islamic. It has claimed--citing the Anwar Ibrahim case--that the only means of overcoming persistent injustice is to jettison the entire common-law system and replace it with sharia (Islamic) law.

In the past, such views would have been deemed extreme. But it has become clear that a large number of the country's majority Muslim Malay community (guided by Pas) are beginning to doubt the fairness and efficacy of Western-based and derived institutions, essentially considered "infidel." As such, an Islamic state--one based on the tenets of the Holy Koran and especially sharia law--has become an increasingly attractive option.

Interestingly, such a state would position Islamic clerics, many of whom are also Pas leaders (such as the chief minister of Terengganu state, Abdul Hadi Awang), in an unassailable position as the sole interpreters of the Holy Koran. This situation alarms many Malaysians, especially given the clerics' uncompromising conservatism. For example, Abdul Hadi Awang has called time and again for the imposition of the death penalty for all apostates.

Prime Minister Mahathir Mohamad and his Umno party, the dominant partner of the ruling coalition, are caught in a quandary. For decades, Umno argued that an administration guided by Islamic principles and values--most of which are acceptable to non-Muslims--best serves the nation's multiracial population. But Pas, emboldened by the missteps of the past three years, has been successful in attacking Umno's legitimacy for refusing to set in place an avowedly Islamic state. However, much to Pas' chagrin, even its allies in the opposition coalition also are wary of its insistence on setting up an Islamic state. The predominantly Chinese-based Democratic Action Party, fearing a backlash from its members, has called on Pas to rescind its demands.

Next, the sense of excitement in the courts--their Prague Spring--is merely the beginning of a long battle to revive the reliability, respectability and credibility of the legal system as a whole. These are early days yet; a few high-profile decisions do not constitute an overhaul. You cannot wave a magic wand when it comes to institution-building. You need to be patient; there is still much more the courts need to do to gel their reform.

But the good news is that though Malaysia's legal system has been weakened, it has not been destroyed. And having survived the depredations of the past decade, both the bench and the bar recognize the need to restore the system to its former vitality. The same cannot be said of either Thailand or Indonesia. These neighbouring countries, for instance, suffer from a severe shortage of trained lawyers and credible individuals. Still, for Malaysia the struggle is vital to its long-term economic prospects, because businessmen (both local and foreign) place a great deal of importance on the efficacy and integrity of a legal system. Put frankly, the legal system's drastic decline in the 1990s severely damaged Malaysia's international standing and competitiveness. It is time to repair this; and most fortunately, this is possible to do.