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JUDICIARY : BALM FOR DEMOCRACY? Page
JUDICIARY: A BALM FOR DEMOCRACY?
By taking on the all-powerful Najib Razak and his constituency, is the judiciary in corruption-plagued Malaysia trying to send a strong message of revisionism?
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Malaysia’s history has been a complex, continuous struggle involving imperial rule, a brutal invasion during World War II followed by a wave of nationalism and constant riots. The period following involved an emergency rule for 12 years from 1948 to 1960, which led to the formation of the Federation of Malaysia in 1963. Two years later, Singapore was separated from the Federation, and a confrontation with Indonesia ensued. Race riots in 1969 resulted in an emergency once more.
This tumultuous history has given rise to a strange mix of democracy and authoritarianism in the country, whereby people occupying high political offices remain unquestioned. This immunity was surprisingly called into question when Prime Minister Najib Razak was convicted of misappropriating RM 2.67 billion from 1Malaysia Development Berhad (1MDB) at the end of August. The judiciary plays a pivotal role in maintaining a semblance of democratic order, especially in volatile environments. While the autonomy of legal institutions is put to a severe test, any effort by them to retain some degree of independence and freedom has significant implications for the health of democracy.
AUTHORITARIANISM VS JUDICIARY
RESUSCITATING FAITH
The former PM’s conviction on corruption, money laundering and abuses of power charges revived faith in the judiciary and other democratic institutions.More importantly, it can act as a positive example for the rest of the region in a geographical area dominated by autocratic regimes.Sadly, judicial systems in Southeast Asia have failed to keep pace with the scale of economic progress in the region and are often party to the corrupt political backdrop. In Malaysia, political interference has in the past compromised the courts’ reputation.
The clarity of the latest verdict against Najib has been widely welcomed as a sign of independent and robust judicial powers.“Najib’s conviction signals, I hope, a return to form for the Malaysian judiciary, which had fallen from its heights of independence,” said Sam Zarifi, secretary-general of the International Commission of Jurists.
The judiciary plays a pivotal role in maintaining a semblance of democratic order, especially in volatile environments. While the autonomy of legal institutions is put to a severe test, any effort by them to retain some degree of independence and freedom has significant implications for the health of democracy. A political attack on justice is a central moment in democratic erosion. This is not a phenomenon unique to Malaysia or even the South Asian region. There are cases of autocratisation in Latin America and the European Union, too, where the capture of justice has played out as the decisive and often irreversible moment in the slide
towards authoritarian rule. In some instances, reversing some democracies to an authoritarian system requires, as a precondition, the judiciary’s capture by the executive branch.
A distinction is made between authoritarian and totalitarian regimes wherein the latter does not leave any place for an independent judiciary, such as Stalin’s regime in the Soviet Union or Nazi Germany. Authoritarian regimes, such as the Spanish Franco regime, often allow for limited pluralism whereby judges can act independently, but their powers are restricted in politically sensitive cases. The degree of independence of a judiciary depends on the level of competition between parties in a democratic set-up. As long as there is a plurality of parties, there is likely to be a strong case for an independent judiciary which can act on behalf of any aggrieved party and maintain the rule of law.
Maintaining an impartial and effective judicial system is expensive, as many developing and middle-economy countries have realised their cost. An independent judiciary’s efficacy is subject to the level of economic development, the status of the court, the relation of the judiciary to other political organs and the competence and integrity of judges. Heaping socio-economic cases on a judiciary ill-equipped to address these only undermine confidence in the judiciary.
THE CHINESE MODEL
Even authoritarian regimes need an independent judiciary to maintain social order and facilitate economic growth. In China, the courts reportedly handle over 8 million cases annually, stipulating a probe into what is working well under the current regime. China has adopted several regulatory innovations, some of which have been severely criticised. These include individual case supervision, adjudicative committees, an extensive incentive structure for judges, and, finally, the role of Party organs in the court system. China has attracted foreign capital by focusing on reforms to promote judicial efficiency, legal predictability, and legal consistency in the economic sector.
There are no easy answers to ensure ‘meaningful’ judicial independence in China. Thus far, there has been limited progress in creating a qualified and authoritative judiciary that can address a wide range of cases independently and competently. In addition, as with other authoritarian regimes, the judiciary is likely to face limits to its independence, especially in political cases which challenge the ruling regime.
THE CASE FOR WOMEN IN JUDICIARY?
Malaysia’s resounding verdict on the ex-PM was dealt out by Chief Justice Tun Tengku Maimun Tuan Mat, a woman who remained stoic in the face of a powerful politician. Is there, therefore, a case for more women on judicial benches? Evidence from across the world seems to suggest so. In the U.S. judiciary, women form a growing component, although there has been criticism for under-representation in decision-making positions despite increased engagement in public life. This is especially the case in senior judicial leadership positions, which continue to house only a small number of women. The Global Judicial Integrity Network has made a strong case for the representation of women in the judiciary of the United Nations Office on Drugs and Crime (UNODC). The network brings together female judges to learn from each other’s lived experiences and provide a source of solidarity.
An adequate representation of women in the judiciary is significant for many reasons. Aside from providing an equitable share to all segments of society from a representative perspective, it inspires the next generation of female judges. Historically, equality in the judiciary has been uneven. Still, steps have been taken, albeit notional, such as marking March 10th as the International Day of Women Judges by the United Nations General Assembly Resolution. This is more specifically the case in African and Arab judiciaries, where the significant imbalance present for decades appears to be corrected. According to UN Women statistics, the number of women working in these regions has risen significantly as per progress made on the Beijing Declaration. These are particularly important at many levels as it includes women in the highest courts where top decisions are made.
Assessment
An independent judiciary plays a critical role in maintaining the rule of law and keeping the spirit of democracy alive. There is a strong link between the nature of the political system and the judiciary’s role therein. Supporters of democracy across the globe will draw strength from the Malaysian experience.
The fact that a woman judge delivered this landmark judgment has given a new meaning to the ongoing campaign for gender equality in such high offices. While the UN has been pushing women’s representation in all aspects of governance in Africa and the Arab world, a lot remains to be fulfilled as the gap between genders is too vast. Even in the paragon of democracy, the U.S, a woman’s inclusion in the apex court draws much controversy, as was seen last year when President Biden nominated a woman, and that too a black one, to the highest court.
ASIAN RIVALRY ON THE AFRICAN CONTINENT
In a desperate bid to grab a piece of the African pie, Tokyo has offered an investment bonanza to Africa.
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In a world suffering under the shadow of war in Europe with rising energy costs and crippling food shortages, a bold and ambitious proclamation made by Japan must have sounded like music to the ears of African leaders.
In the recent Tokyo International Conference on African Development (TICAD) held in Tunisia, Japan committed $ 30 billion in economic assistance to be spent over the next three years.
While Japan has a long and fruitful relationship with Africa, astute observers see a deeper intent. As the historic rivalry between the two Asian titans-China and Japan- intensifies in the Indo-Pacific, geopolitical compulsions encourage Tokyo to ramp up its stakes in Africa, which many project as the next big global market.
Apparently, Japan wishes to counterbalance the rising economic and political clout of Beijing in Africa. The fact that Moscow and Beijing seem to coalesce as an axis after the Ukraine war could be a catalyst for the fresh Japanese initiative.
A HISTORICAL CONTEXT
In a research paper published by the Nnamdi Azikiwe University, Awka, on Strategies of China and Japan’s Rivalry in Africa, it is argued that while Africa has been an arena of global power politics for over three centuries, the Chinese and the Japanese are relatively new players.
The first period which lasted for over 400 years, saw European powers ravaging the ‘Dark Continent’ for its slave trade. The second period was after World War when one by one, the European colonial powers were banished from the continent, and their place was taken, albeit in a more proxy manner, by the U.S. and the USSR as they carried their war into the continent. During this period, both China and Japan made their entrance, largely due to their booming commercial interests and humanitarian aid to their client states. The third (and current phase) commenced from the end of the Cold War, and while it saw newer entrants like India, South Korea and South American nations like Brazil, the greatest influence was exerted by China and Japan.
During the Cold War, China and Japan positioned themselves behind the opposing superpowers, but these dynamics changed after the Cold War; they have since competed directly in the so-called ‘the Second Scramble for Africa’.
China has never forgotten or forgiven Imperial Japan for its excesses in its puppet state of Manchukuo from 1934 till the end of World War II. Since then Sino Japanese rivalries have simmered, despite their booming trade, around maritime disputes over the Senkaku Islands in the East China Seas. Since 2014, both Asian powerhouses have carried their rivalry into the African continent.
Japanese are no novices in the African market. Almost a thousand Japanese companies have been operating in the continent for some years now, and the current push is in line with long-term Japanese goals for Africa. In fact, the Japanese mega-corporation Mitsubishi has investments in Africa that can be traced back to 1926. Even the Japan and African Development Bank have been doling out loans to African countries for almost a century now.
During the decade between 2005-2014, Japan invested over $3 billion in agriculture, water, health and infrastructure. Some big-ticket projects included hydroelectric plants in Uganda and Madagascar, expressways in Nigeria and gas-fired power plants in Ghana.
The Sino-Nippon rivalry in Africa predates the Cold War, in fact. Chinese records show the trade with Africa during the Tang dynasty, while more precise Japanese records show the earliest contacts started in 1650.
However, as their economies grew during the postWorld War II boom, both started taking a greater interest in the markets and resources of Africa. Both nations were prominent at the 1955 Bandung Conference, where they sought the support of the newly independent nations of Asia and Africa to “engender collaboration among Asian and African nations on scientific and economic development.”
China actively supported the anti-colonial struggle in Africa with financial and military aid in Zimbabwe, Mozambique and Angola. It became a major aid donor to Libya, Egypt, Sudan, and Tunisia.
A sentiment widely shared in African countries is that, whatever be the pitfalls of a Chinese Debt trap, the Chinese have never patronised their African client state and do not project their economic assistance as handouts but as a means of testing the waters for furthering their influence. After all, the African group of countries comprise the largest single bloc of voters in major multilateral organisations like the UN general assembly.
Pacifist Japan, having aligned to the capitalist bloc, played no part in the freedom struggle of nascent African republics, so it lost out to China in the initial stages. Belatedly, it tried to close the gap with its massive investment resources, which it used to influence political leaders across Africa.
As per the African Centre for Strategic Studies, the Japanese-Africa trade at about $24 billion a year is far outstripped by that of China at $254 billion last year.
GEOPOLITICAL COMPULSIONS
An unwell Japanese Prime Minister Fumio Kishida was unable to attend the TICAD but addressed the African leaders via a video link. He assured the African leaders that “Japan intends to use its wealth to invest in Africa’s human capital and foster high-quality and sustainable development across the continent.” However, the timing of the TICAD and the fact that its location was shifted from Tokyo to an African locale was significant; Japan is keen to push back against growing Sino-Russian influence in the continent. Last year, Beijing promised a $40 billion financial bonanza to the continent. Similarly, the Japanese are wary of President Putin courting India and many African countries with attractive financial deals to garner their support for its Ukrainian invasion.
Just like the U.S., India and many EU countries, Japan too has been spreading the word about the pitfalls of Chinese investments. Sri Lanka’s economic collapse presents a clear example; although the Chinese claim that they are being unfairly targeted despite their share of the Sri Lankan debt being a mere 10 per cent in order to drive a wedge between them and their African partners.
China’s rivals are quick to counter Chinese denials by pointing out the strategic nature of assets acquired by Chinese companies once the client nation defaults on interest payments. It is a fact that China invests without delay in mega infrastructure projects like ports, strategic airfields, railways, expressways and bridges. The strategic Hambantota Port in Sri Lanka is the perfect example of the ‘Chinese land grab’ technique, as per the critics.
China has proactively gained control over rare earth minerals being mined in the Republic of Congo and other countries through years of well-planned investments. Now it holds the monopoly in the supply chain of these rare earths, thus gaining a strategic edge over its rivals like the U.S. and Japan.
Japan would like to forge together a broad-based coalition of like-minded nations, including India, to contest Chinese hegemony over the resources of Africa and create conditions for free and open trading under a rulebased international order. However, a resurgent China may not be so easily deflected from its goals.
Assessment
Geopolitical machinations notwithstanding, economically, many African nations have only gained from these infrastructure projects, leading to higher growth and better living conditions for their citizens.
As regards accusations of the ‘Chinese Debt Trap’, the jury is still out whether these are true or not.
For Japan, it is a case of ‘too little and too late’. While it may be still trying, the race seems to have been won by China. The declining Japanese economy, its ageing population and a huge national debt leave little surplus money for the Japanese government to splurge in Africa in a competition that is clearly onesided. At best, Japan can only hope to consolidate its remaining influence in Africa and not cede it to China.
