PETALING JAYA: Lawyers are divided over whether a Royal Commission of Inquiry (RCI) into a sensational affidavit authored by a judge who claims misconduct in the judiciary will achieve the desired result.
Some are of the view that nothing constructive will be achieved if past RCIs are taken as the benchmark while others take the position that such an inquiry should be allowed in the new political environment to bring about reforms in the judiciary.
Lawyer Syed Iskandar Syed Jaafar Al Mahdzar said a RCI to investigate the claims made by Court of Appeal judge Hamid Sultan Abu Backer would not serve any purpose.
He said Hamid was reprimanded by a top judge, who had since retired, over his 2016 dissenting judgment in the M Indira Gandhi unilateral conversion appeal.
“But that minority judgment was made the law of the land by the Federal Court in an unanimous decision last year,” he said.
Syed Iskandar said the allegation that there was judicial interference in the late Karpal Singh’s sedition case was merely hearsay evidence as Hamid was not one of the three judges who had heard the appeal.
“Most of the other allegations in the affidavit are incidents relating to third parties,” he said.
Syed Iskandar said the judiciary had the tendency, when it was attacked from the outside, “to encircle its wagons” as a defence mechanism because the institution had to be protected.
He said this in response to calls by the Malaysian Bar, civil society and individuals to establish a RCI to investigate Hamid’s allegations.
Since last August, Hamid has repeatedly insisted that a RCI be set up so that he could reveal everything there.
Last week, however, he affirmed an affidavit in support of legal action by lawyer Sangeet Kaur Deo against the purported failure by Chief Justice Richard Malanjum to complete investigations into two cases of alleged judicial interference.
Meanwhile, lawyer Bastian Pius Vendargon said such an investigative tribunal, based on past precedents, would lead to nowhere unless there was political will.
He said the RCI members must be the right ones, carefully selected and fearless and not the politically-correct types.
“If there is sufficient evidence of criminality, then prosecution should be considered. If there is some evidence of misconduct, there must either be a demand for resignations or tribunals should be set up,” he said.
He said if the above two were not possible, then early retirements should be considered.
Lawyer S N Nair said it was notable that the new government had made great strides in implementing reforms, both to the executive and to the legislature.
In contrast, he said, the new federal administration seemed to have dithered on seriously needed reforms in the judiciary.
“Hamid has unexpectedly spearheaded the call for serious judicial reforms and we must proffer our support for a RCI and keep the momentum going,” he said.
Nair said there was no doubt that to get to the bottom of it, a RCI was the most effective and transparent mechanism.
“It is the best way forward to right the wrongs of yesteryear in a much delayed judicial reform process,” he said.
Nair said Hamid had now set his mind to perform a “judicial kamikaze” risking everything, and that he must be commended for “belling the cat” when others lacked gumption.
Lawyer Zainur Zakaria, meanwhile, said the government should form the RCI if its chief legal adviser Tommy Thomas was of the opinion that that was the way to go.
“In the 2007 judicial fixing case, the public knew what happened when the RCI conduced a public hearing,” Zainur added
The former Malaysian Bar president said that RCI resulted in the passing of the Judicial Appointments Commission Act, among others, that paved the way for a panel to vet candidates for elevation.
In the past, RCIs were set up to suggest an appropriate external check-and-balance on the police (2004), investigate judge-fixing after a video emerged of a lawyer speaking to a top judge (2007), probe into the custodial death of Teoh Beng Hock (2011) and look into the Bank Negara RM30 billion forex losses (2017).