Time to clean, give wing to the judiciary as we celebrate Independence Day

In my previous column, I had asked how independent our judges were following the revelation by Court of Appeal judge Hamid Sultan Abu Backer that he had been reprimanded by a top judge for delivering a dissenting judgment in the unilateral conversion case involving kindergarten teacher M Indira Gandhi.

I also quoted another case involving High Court judge Muhammad Kamil Awang, who, in ruling the Likas election null and void, revealed that a senior judge had called him on the phone, at the commencement of the case in 1999, to tell him to dismiss the election petition.

In addition to this, we have, of course, heard tales of how the executive – the top government leadership – has, over the years, flexed its muscles not only in the appointment of judges but also over decisions.

I had raised the question as to how many other similar cases could have been buried.

The following day, lawyer Mohamed Haniff Khatri Abdulla threw a bombshell. He claimed a senior judge had interfered in the outcome of the late Karpal Singh’s sedition appeal two years ago. If not for this interference, he said, Karpal’s name would have been cleared.

Haniff claimed he was recently informed that the Court of Appeal had decided in May 2016 in favour of acquitting Karpal in a majority decision but that “the panel was asked to reverse the ruling”.

Karpal, known as the Tiger of Jelutong, after the parliamentary constituency that he had served for many terms, died in a road accident on April 17, 2014. He had been charged with sedition for saying the removal of Mohammad Nizar Jamaluddin as menteri besar by the late Perak Sultan, Sultan Azlan Shah, and the appointment of Zambry Abdul Kadir in his place, could be questioned in court.

Understandably, a day after Haniff’s revelation, Karpal’s daughter Sangeet Kaur Deo lodged a police report calling for an investigation.

Talking about Karpal, I recall his complaint in August 2007 about a judge who had failed to deliver judgements for five years.

He was baffled that the judge had been promoted twice as “he has been reported not to have written grounds of judgment for at least 30 criminal and civil cases when he was a High Court judge”. He later named the judge in the Dewan Rakyat.

Karpal blamed the chief justice and the prime minister as they were directly involved in the appointment of judges.

In Nov 2008, Karpal lodged a police report against then chief justice Zaki Azmi, who had apparently been recorded on audio as saying he personally knew of two judges who were corrupt. Karpal wanted action taken. Nothing happened, as usual.

Legal practitioners will surely remember the remarks of the late Court of Appeal judge N H Chan, who was often critical of judges and the judiciary, that, “All is not well in the House of Denmark”. It was a tip of the hat to the famous quotation from Shakespeare’s “Hamlet” spoken by Marcellus: “Something is rotten in the state of Denmark”. Chan’s choice of words was exquisitely appropriate as the civil courts were then housed in a building called Wisma Denmark.

The question arises as to whether all is well in the Palace of Justice.

The more I hear about such cases, the more convinced I am that competent legal minds must be appointed as judges. This means that the Judicial Appointments Commission must first be constituted of non-political and incorruptible people of high legal esteem and ethics who are also colour blind.

There is a nagging feeling that we may not be getting the best because of political or other considerations. The question has previously been raised by lawyers as to whether tokenism is being practiced in the appointment of non-Malays as judges.

What the public expects are magistrates and judges who are competent, courageous, colour-blind and incorruptible.

Will we ever see the likes of the legendary Eusoffe Abdoolcader, Chan, Mohamed Suffian Hashim, Mohd Hishamudin Yunus, George Seah, Mahadev Shankar, Azmi Kamaruddin, and Wan Suleiman Pawanteh again?

The Malaysian judiciary, it is generally agreed, had a splendid reputation from independence to the mid-1980s. Will we see it again?

Talking about independence, Bapa Malaysia Tunku Abdul Rahman was a great believer in the independence of the judiciary and a respecter of the rule of law.

Former Federal Court judge James Foong once recounted two incidences which prove that the Tunku walked the talk in upholding the separation of powers in government.

“The first,” Foong said, “was his unsuccessful defamation action against a prominent leader of a political party known as Parti Negara in which a High Court judge, who was appointed just three months earlier on his recommendation, dismissed his claim for lack of evidence. Though disappointed, he accepted the decision graciously without raising an appeal or commenting adversely on the decision.

“The second was when, as prime minister, he attempted to have an old friend appointed as a High Court judge. When the chief justice voiced his strong reservations over the suitability of this candidate, Tunku totally and implicitly accepted this opinion rather than insisting that the word ‘consult’, found in Article 122 B of the Federal Constitution which says that a prime minister is to consult the chief justice before tendering his advice to the Yang di-Pertuan Agong on the appointment of a judge, be given a narrow interpretation.”

Let’s hope Prime Minister Dr Mahathir Mohamad and the current batch of political leaders emulate the Tunku.

If public trust in any nation’s judiciary is eroded to a critical level, that society will be in trouble. I believe we have not arrived at that stage, as there are still many upright and competent judges on our benches.

But, it’s time to act. Let’s have a full and unbiased inquiry into the judiciary; let’s amend or update the necessary legislation concerning the conduct of judges so that objectionable occurrences are averted; and let’s improve the system of judicial appointments so that the crème de la crème are appointed judges.

The views expressed are those of the author and do not necessarily reflect those of FMT.