PETALING JAYA: It will be wrong to ask judge Hamid Sultan Abu Backer to appear before a tribunal for alleged misconduct instead of investigating his affidavit that exposed corruption and misconduct in the judiciary, his lawyer said.
“It is wrongly putting the cart before the horse to suggest that action be taken against the complainant (Hamid) when his allegations have not been investigated,” Mohamed Haniff Khatri Abdulla said.
He said recent events indicated that a Royal Commission of Inquiry (RCI) might not take off to investigate the claims by Hamid, a senior Court of Appeal judge.
Haniff said this in response to a statement by former Malaysian Bar president Ragunath Kesavan that the government’s move to set up a RCI to investigate the judiciary would go against the constitution and the doctrine of separation of powers.
Ragunath said if there was an inquiry into the judiciary, it would also have to look into the misconduct of certain individual judges.
“Such misconduct can only be investigated by setting up a tribunal as provided for under Article 125 of the Federal Constitution,” he told FMT.
He said there was also no provision in the Commissions of Enquiry Act 1950 to investigate the judicial branch.
Ragunath said only the chief justice, after consulting the prime minister, could make representation to the Yang di-Pertuan Agong to remove a judge for alleged misconduct.
He said the attorney-general could frame specific charges against Hamid to appear before a tribunal for alleged misconduct and the judge could defend himself by engaging lawyers.
In response, Haniff said Ragunath was reading the Commissions of Enquiry Act in a very narrow fashion to erroneously rule out any RCI on the judiciary.
He said a RCI could investigate the various allegations, make necessary recommendations and set up tribunals if the guilty party involved sitting judges.
“If Hamid’s affidavit is false, then set up a tribunal against Hamid Sultan,” he added.
Haniff noted certain actions that appeared to indicate that a RCI might not be set up.
He said Attorney-General Tommy Thomas had yet to make public the terms of reference even after the government announced the setting up of the RCI on Feb 21.
“Thomas has also filed an application to expunge Hamid’s affidavit in support of lawyer Sangeet Kaur Deo’s suit against the chief justice,” he said.
Further, Haniff said, Thomas had cited lawyer Arun Kasi for contempt of court for comments over a Federal Court decision which involved a minority judgment delivered by Hamid in the Court of Appeal.
“One cannot be blamed for suspecting that there may be a concerted attempt to scuttle the RCI and replace it with a tribunal against Hamid,” Haniff said.
He said if that happened, a sincere allegation by a sitting judge would be swept under the carpet and the opportunity to clean up the judiciary’s image through the RCI would be lost completely.
“That will not augur well for the sincerity of the government which announced the RCI and it will also be an affront to Pakatan Harapan’s manifesto,” he said.
In a 65-page affidavit, Hamid had alleged that senior judges had intervened in the decision of numerous appeals and abetted in scams carried out by nominees of politicians who had entered into contracts with the government.
Hamid claimed that once the government pulled out of a deal, the private parties would take the government to court to claim compensation.