Defend independence, speak up, ex-UN special rapporteur tells Bar

Param Cumaraswamy says the Malaysian Bar must remain steadfast and united in defence of its independence.

PETALING JAYA: Param Cumaraswamy, former United Nations special rapporteur on the independence of judges and lawyers, said the Malaysian Bar must remain steadfast and united in defence of its independence.

Param, who was named this year’s recipient of the Malaysian Bar Lifetime Achievement Award, said a robust and sound administration of justice was dependent on the co-operation of an independent judiciary, public prosecutor’s office and an independent legal profession.

“When the fundamentals of the independent judiciary and the office of the public prosecutor are tampered with by the executive arm of the government, the legal profession stands alone to alert the public and seek restoration of the fundamentals,” he said in his acceptance speech at the Bar dinner on Saturday.

Param, who was Bar president during the 1988 judicial crisis when six Federal Court judges were tried for misconduct, recalled that at the height of the crisis, former lord president (now renamed chief justice) Mohamed Suffian Hashim had said it would take a generation to restore the judicial independence which the nation then had.

The 77-year-old Param said being the special rapporteur for nine years from 1993 had given him an insight into the various forms of injustices in societies, and assaults on the independence of the judiciary and lawyers.

“The worst form of injustice in any civilised society is the injustice perpetrated through the judicial process at the behest of the executive arm of the government,” he said in the speech made available to FMT.

He narrated the striking case of the late Pakistan prime minister Benazir Bhutto who, in 1999, was tried in absentia, convicted and sentenced to five years’ in jail for corruption by Justice Malik Qayyum at the High Court in Rawalpindi.

Param said sometime in late February 2001, he took delivery of a tape recording with a transcript that showed there had been executive interference in Benazir’s trial. The conversation was in Urdu but there was a translation in English.

Param said the contents of the tape recording was a telephone conversation between Qayyum and a high-ranking official at ministerial level in Pakistan exerting pressure on the judge to convict and sentence Benazir.

After verifying the authenticity of the recording and the transcript, Param said he raised the issue before the 52-state Human Rights Commission in Geneva in April 2001.

“This revelation stunned the state delegates at that session. I had in my hand the tape recording,” he said.

Two weeks after that, Benazir’s appeal over her conviction and sentence was set aside and a fresh trial was ordered.

Param, who later met Benazir over lunch in Petaling Jaya in May 2001, said she recounted her political life and the problems and future for democracy in Pakistan.

On the judiciary, she said: “Mr Cumaraswamy, it is only when one is in the opposition that one appreciates the value of judicial independence.”

Former Bar president Cyrus Das said the eminent British judge Lord Denning described Param as “a courageous fighter for the independence of the judiciary and the legal profession” upon his appointment to the UN.

Param, he said, qualified as a barrister in 1966 and returned to Malaysia the following year to begin his legal practice. Das, however, said Param did not go through an ordinary life in the law.

“Between 1985 and 1990, he was subjected to considerable pressure, harassment and intimidation, including death threats, for his defence of human rights in Malaysia,” said Das, who read Param’s citation.

Param was charged under the Sedition Act for speaking up to commute the death sentence of criminal Sim Kie Chon, but was later acquitted.

Das said Param was also slapped with a defamation suit following an interview he gave to a London-based magazine in his capacity as special rapporteur concerning alleged impropriety within the Malaysian judiciary.

Four potentially crippling multi-million dollar defamation suits were brought against Param by various Malaysian personalities and corporations.

Param’s attempt to set aside the writ on the grounds that the court had no jurisdiction over his person, because he was immune from the suit, failed.

Eventually, the International Court of Justice in The Hague found that Param was indeed immune from legal process and directed the Malaysian courts to recognise this immunity.

In 2001, the suits against Param were withdrawn.

Param was a member of the Bar Council for 24 unbroken years from 1974 to 1998, having held the offices of treasurer, secretary, vice-president and president, the last from 1986 to 1988.

The award, started in 2012, honours current and former Bar members who have demonstrated dedication and exemplary service, in addition to making outstanding and significant contributions to the legal profession.

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