The Anwar saga is an example of how market justice acts to uphold the system, yet undermines itself through constant and ruthless abuse

by John Hilley

Anwar was a potential whistleblower

As Anwar Ibrahim ponders his ongoing incarceration, it is worth considering how judicial bias in Malaysia forms part of a wider process of what might be termed ‘market justice’.

Political authority can be viewed as a commodity competed for in a market context, though, most often, not the ‘free-market’ type the elite would have us think. Where ‘open political competition’ is not enough to secure control of that market, various forms of repression usually follow, intrinsic to which is the market justice meted out by the judicial elite.

It is not simply that judges are often prejudiced towards the establishment. They are part of it. Their function is not merely to arbitrate court claims, but to manage the multiple fallouts and crises created by the system. Upholding this highest ‘judicial prerogative’, the decision to lock Anwar away was made not only by a robed appointee, but by a set of executive directors intent on maintaining a rigged political system. At their disposal was the courtroom, a place where action against dangerous ‘market competitors’ is ruthlessly dispensed.

Consider, as examples, the varying cases of Anwar and Mandela. Each posed a different type of political problem. Yet, both were locked up as worrying threats to established systems of power. Mandela was an external danger, someone immediately outside the elite structure; a ‘terrorist’ subversive and serious impediment to the continuing monopolisation of white rule and corporate power. Anwar, in contrast, was an insider, but still a perceived non-player. More particularly, he was a potential whistleblower, that most dangerous irritation to the ‘political boardroom’.

Competitive market justice

Anwar’s other misfortune, or perhaps misjudgement, in 1997-98 was to have been caught between two contending sides of market justice. On the one side (as forensically detailed by Khoo Boo Teik in Beyond Mahathir), were the international free-marketeers, backed by a foreign business media, who saw Anwar’s ascension, the crisis and proto-IMF-type ‘market reform’ as key opportunities for achieving a more favourable investment climate. On the other side stood the market interests underwritten by Malaysia Inc. — most notably, the domestic conglomerates and cronies created by Mahathir’s version of privatisation.

In defending the latter, Mahathir’s resistance to the IMF package was part of a stand-off which drew Anwar into an ultimate showdown with the BN system. Caught up in this market calculus, Mahathir used the reflation/capital control agenda, alongside the ‘sexual misconduct’ smear, to bankrupt Anwar’s career. Thus, somewhat perversely, Anwar’s fate was partly realised by the aspirant neoliberal forces which promoted and patronised him from without, and sealed by that set of competing interests which conspired, judged and jailed him from within. When judges Augustine Paul and Arifin Jaka handed down their verdicts, they were, in effect, following the mercenary logic of competitive market justice.

Selective market justice

It is with a keen eye to the selective enforcement of market justice that political and corporate elites also exploit developing countries, trade arms, appropriate oil and rationalise mass murder. Here, media propaganda, as part of the same corporate-market system, plays a complementary role in justifying economic theft and mitigating the crime of military invasion. Thus, through the various filters of media interpretation and government spin, are such actions transformed into the common language of ‘necessary intervention’ and ‘moral retribution’.

Yet, not even another BN victory can repair the sustained damage to the judicial system, the problems of legitimacy for the political elite and the turn to a more critical political consciousness among Malaysians.

These and other forms of market justice are clearly evident in Iraq. When Saddam was pulled from his hole near Tikrit, he was paraded (and humiliated) not just as a homicidal despot, but as a failed participant in the same high-stake power game. As his ‘de-briefing’ quietly proceeds over the where-abouts of supposed weapons of mass destruction, so we are assailed with ‘pre-trial’ propaganda about bringing a tyrant to justice. But what that propaganda discreetly hides is the market justice used to ‘support’ Saddam in the first place.

This is the market justice that helped keep Iraq and Iran locked into a devastating war. It was the market justice that provided corporate profit from weapons sales and the chemical nerve agents used to gas the Kurds at Halabja. It is, with perverse irony, the market justice being used by US troops to shoot dead Iraqi citizens caught stealing oil. And it is the same market justice now being invoked to punish Saddam himself.

As Washington decides how best to retire its former ‘regional manager’, this type of justice illustrates not only the purpose of US clientism but, like Noriega in Panama, the way in which such figures become redundant when their market function is exhausted. Just as corporations sweeten and, ultimately, takeover awkward competition, so has Saddam been displaced as a spent force, his fate now to be judged in ways which keep Washington’s own dirty ‘trading’ practices safely hidden.

This corresponds precisely with the rise of neoliberal-militarism. Driven by Bush’s business-service politics, and the Pentagon’s increased hold over foreign policy, a new confluence of military-corporate forces has now imprinted itself over previous liberal and neoliberal versions of the state. Modelled by the US, the net effect, post September 11, has been a wider turn to state retribution as other governments and judges utilise the new ‘anti-terrorism’ climate to curtail civil liberties. Likewise, (as predicted) the whitewashed Hutton Report (January 2004), exonerating the Blair government over matters pertaining to Iraq, leaves us in no doubt about British judicial bias and the establishment’s capacity for blatant cover up.

Property rights and retributive justice

Retributive market justice also extends into all areas of common crime. Although the punishment for ‘theft’ is usually weighed according to the degree of market value (whether in money or property), it is the poor who are more disproportionately sentenced. In Britain, judges consistently apply this class-based bias, even to the extent of sending poor single mothers to jail for non-payment of small debts. They do so on the basis of market rationality, a set of codes predicated on the sovereign ideal of private property. Thus, did a recent Channel 4 (TV) investigation reveal the extent to which British High Court judges are still mainly drawn from upper class backgrounds, many with little practical understanding of wider social norms. More disturbingly, a high proportion were exposed as having overseen frequent miscarriages of justice, their mistakes and biases shrouded by the lack of any simple statutory power of removal.

The prioritisation of property over people is perhaps most evident in the US where, under California’s ‘three strikes’ law, life tariffs are being handed down, mainly to poor blacks, for petty theft and other minor crimes. Indeed, here we see a striking correlation between the fearsome market fundamentalism underpinning US society and its grim claim to having the highest per head prison population in the world — again, disproportionately black. Likewise, the stark security notices fronting the wealthy lawns of Beverly Hills give further indication of the price to be paid for ignoring the admonitions of US market justice.

In contrast, grand corporate larceny and ‘creative auditing’ is treated with relative leniency. Thus, have Enron executives (linked to Bush) and other CEOs been able to steal millions and raid their company pension funds without commensurate penalty. Of course, the judicial system will demand that the elite too — corporate and political — must on occasions be sanctioned. However, this is not intended to equalise human rights, but to sanctify the higher law of capitalist property rights — again, selectively applied — and the fiction of fair market justice.

The market justice of trade and human rights

The same rationale applies to countries seeking legal redress through bodies like the World Trade Organisation (WTO). Of those judged to have ‘violated’ the laws of the global market, it is the poorest, notably African, states who are most systematically punished. Their ‘crime’, most often, is resisting the WTO’s ‘free-trade’ rules or the IMF’s and World Bank’s imposed privatisation agenda. In similar fashion, painful sentences are being handed down by the IMF to countries like Argentina, a once developed nation now ravaged by the neoliberal market. Here, again, it is those at the bottom of the pile who have taken the harshest slice of market justice — cuts, austerity and economic retrenchment. In addition, the country’s ‘corral’ banking law, imposed by the IMF and upheld by the courts, have prohibited people accessing their basic savings, while the domestic elite and international bankers quietly spirit their wealth out of the country.

The type of international justice proclaimed by Bush and Blair is also premised on the selective laws of the market. Here, the international courtroom at The Hague is lauded as a definitive arbiter of human rights. Yet, it is a venue where Milosevic may be tried, but certainly not those Western figures responsible for mass killings and economic theft in Iraq, Latin America and elsewhere. Besides Washington’s unilateral rejection of the new International Criminal Court, the bias is most obvious at Camp X, Cuba, where the ‘inviolable’ rules of international liberal justice are not so much suspended as simply ignored. Compounding America’s judicial image problem is the (Amnesty documented) brutalisation of prisoners still taking place in US jails. Here, the market imperatives behind the ‘lock-em-up’ policy are slowly pulling the judicial system towards legitimacy crisis. Likewise, as the US continues to hold court in Iraq, Afghanistan and other lands, we see the prospect of a more vengeful ‘day of judgement’ for pax-Americana itself.

Anwar and the false economy of market justice

How, one might ask, does Washington’s ‘prisoner of conscience support’ for Anwar sit alongside these denials of international legal procedure? Part of the answer, at least, lies in that other application of US market justice, which has seen Anwar’s case conveniently sidelined as Bush promotes new ‘security understandings’ with the BN.

Back in the BN’s own ‘political boardroom’, there are suggestions that Abdullah Badawi and his new co-directors may be considering a tactical plan for Anwar’s early release. One can only speculate. But, if so, they will need to be satisfied that his liberty precludes any serious threat to Malaysian market justice — corporate, political and judicial. If Anwar’s return is to be allowed, it may only come about through his acceptance of the same, stacked system rather than his ability, or desire, to change it. Resilient will and good health permitting, any such development would be another key test for Anwar. After all, it is political incorporation, as well as compliant judges and corporate cronyism, which keeps the system of market justice sustained — the very system that sent Anwar down.

Yet, ultimately, it is this compounded failure of legitimacy — the increasingly transparent injustice of market justice — that threatens the ruling elite even more. The crime committed by Augustine Paul and his judicial associates was not just that of complicity to delude the public, but to delude themselves. They alone will have to live with that. But what many such judges cannot perceive — being so embedded in the self-same system — is their very part in this longer process of delegitimisation.

As Tian Chua and the BA’s other ‘usual suspects’ await the ever-present threat of detention, Suhakam, the ‘independent’ government-appointed human rights body, still claims to be addressing the deficits of Malaysian justice. Besides a general failure to make much headway, the recent removal of its ‘liberal’ executive demonstrates just how much autonomy the BN will allow it. As much of the NGO community have come to see, this was always a damage limitation exercise intended to restore some semblance of public faith in a now dangerously degraded institution.

With elections now imminent, Abdullah Badawi has launched yet another anti-corruption drive, complemented by the usual forms of electoral chicanery, including the hyped threat of riots in Penang. Yet, not even another BN victory can repair the sustained damage to the judicial system, the problems of legitimacy for the political elite and the turn to a more critical political consciousness among Malaysians.

All this is probably of little comfort right now to Anwar as he travails the last despairing corridors of the appeals court. But, as an ongoing political liability, his is an example of how market justice acts to uphold the system, yet undermines itself through constant and ruthless abuse. Such was the case with the apartheid courts in South Africa. Just as it took a Truth Commission to exorcise the many sins of that regime, so will there be a day of reckoning for the excess applications of Malaysian market justice.

Glasgow-based Dr. John Hilley is the author of “Malaysia: Mahathirism, Hegemony and the New Opposition” (London: 2001)

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