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The Sydney Morning Herald
8 Sep 07
We haven’t had so much distraction since Bob Menzies sent the F-111s overhead to remind us at election time that the Indonesians were about to invade. The ceaseless fluttering of helicopters and the beefy ranks of overfed security people are about as meaningful as Ming’s air power in 1964. Still, if it makes 21 “world leaders” feel more in charge and better about themselves, who are we to complain?
Some of the APEC agenda inevitably involves jawboning about trade and economic growth. After all, these are favourite topics of the host leader, John Howard, and the centrepieces of his life’s work.
But how much progress can really be made towards the betterment of the human condition when, among prominent APECers, the institutional framework is decidedly shabby?
It makes the arrival of Transparency International’s report on corruption in judicial systems quite apt. After all, without independent, efficient and fair courts, how can trade, investment and business prosper? This would be a fruitful field of discussion, but it is not to be found on the order of proceedings.
Transparency International is the Berlin-based worldwide corruption research and awareness organisation, and each year it publishes a Global Corruption Report. You’d be amazed how many of our dearest friends, currently in Sydney, are propped up by judicial regimes that, for all the protestations to the contrary, are little more than arms of the state.
In China, where strides in judicial reform have been made, the courts and the judges are still not independent. It is a curious set-up: there are 200,000 judges in China, about twice the number of practising lawyers. Transparency International’s report says that major and complex cases are sometimes decided by court adjudication committees that consult with Communist Party political-legal committees. No one seems to know the extent to which this is the norm.
The Supreme People’s Court of China is the country’s number one national judicial body, but it is responsible to the National People’s Congress. The local courts at the regional level are responsible to the “organs of state power which created them”.
Yet the Chinese are flocking to the courts in record numbers. Two years ago 4.4 million civil cases were filed, twice as many as a decade ago. But it is doubtful an Australian investor or business operator in China would wish to have disputes resolved by judges where rulings are fabricated for cash, litigants are blackmailed into paying for or excluding evidence, and decisions are based on instructions from government or party officials, regardless of the law or facts.
In Wuhan province, 91 judges were charged with bribery, including the presidents of the high, intermediate and basic courts. The ringleaders were sent to jail and others were “reassigned” to other courts.
In Russia, improvement has been slow and the judicial apparatus is still readily available to punish Vladimir Putin’s political enemies. There have been some reforms, such as life tenure, a judicial qualification college and the publication of some judicial reasons.
Nonetheless, the International Bar Association, the Organisation for Economic Co-operation and Development, the International Commission of Jurists and the US State Department have expressed concern about practices that are “not conducive to the independence of the judiciary”.
In Malaysia, another shining light in APEC, the Canadian journalist Murray Hiebert was jailed for three months after writing in the Far Eastern Economic Review that a private case brought by the wife of a judge had been heard more speedily than most other cases.
In Indonesia, one illustration of the extent to which corruption is entrenched concerns the creation of a special commercial court under the guidance of the International Monetary Fund.
The whole notion was that foreign litigants would be able to avoid the corruption of the regular court system, but regrettably the special court was not immune from rulings favouring well-connected local debtors.
When asked about corruption in South Sumatra only 4 per cent of the judges admitted knowledge of instances of bribery affecting their colleagues, while 62 per cent of lawyers and 45 per cent of court users knew of cases where a court user had paid a bribe.
In Singapore, with which Australia has a free trade agreement, the courts will rarely if ever decide contrary to the personal interests of the ruling junta, particularly when it comes to defamation actions.
In the city state, the courts frequently are used to crush political opponents of the Lees with enormous awards of damages and subsequent bankruptcy of the hapless defendant.
Chee Soon Juan, leader of the Singapore Democratic Party, is the latest victim of this systematic oppression. Last year he went bankrupt after failing to pay $S500,000 ($397,000) in libel damages to Lee Kuan Yew and the former prime minister Goh Chok Tong. He lost his appeal and when he tried to go overseas he was arrested and sent to jail.
There is no public interest defence when it comes to the defamation of Singapore’s leaders. Yet everyone’s cheeks will be aching with all the APEC smiles and grins associated with marvellous achievements. Back home though, it’s a lot grimmer.