An affidavit filed by Court of Appeal judge Hamid Sultan Abu Backer about misconduct in the judiciary is troubling and causing waves in the nation.
Hamid’s 65-page affidavit is in support of lawyer Sangeet Kaur Deo’s court application seeking a declaration that Chief Justice Richard Malanjum failed in his duty to complete investigations into two widely publicised cases of judicial interference.
The said affidavit which alleges a slew of cases of judicial misconduct only serves to confirm what many Malaysians have long suspected.
But these new allegations will further erode and undermine public confidence and trust in the judiciary.
Remember that in the 90s, another judge, Syed Ahmad Idid Syed Ahmad, revealed cases of purported judicial misconduct committed by top judges. The allegations were never investigated. Instead, Syed Idid had to pay a very heavy price for it: he had to resign from his post.
Now, another explosive expose has been made by a sitting judge. Hamid may have his own motives for turning against his brother judges. We do not know for sure whether the contents of the allegations are true or not. But they are too serious to be ignored or swept aside as was the case in Syed Idid’s complaint.
The allegations, if not addressed and resolved by the government, will have grave ramifications on our system of justice, in which the judiciary is the pivot – the life and blood of our system of governance.
Justice must not only be done; it must be seen to be done. There should be no room for doubt, scepticism or cynicism on the integrity of our judiciary.
The Malaysian Bar Council has urged Putrajaya to set up a royal commission of inquiry (RCI) to investigate the said allegations of judicial misconduct.
Others such as the National Patriots Association, Sabah Bar, Reform Caucus for Parliament, Lawyers for Liberty and Bersih have also made similar calls. Syed Idid, meanwhile, called for the appointment of judges with integrity while another former judge, Hishamuddin Yunus, also called for an RCI.
On his part, Dr Mahathir Mohamad said the government would study the calls for an RCI.
There are already three ongoing investigations on the matter: one conducted internally by the judiciary, one by the police and another by the Malaysian Anti-Corruption Commission (MACC) based on the police report on the said allegations.
Hamid’s affidavit listed numerous incidents of judicial interference in the administration of justice. They include the purported perversion of the course of justice in the high-profile cases of Anwar Ibrahim, Karpal Singh and Indira Gandhi, and how political nominees defrauded the government with the help of judges.
Anwar Ibrahim’s case
Hamid said the prosecution in Anwar’s case failed to prove the case beyond reasonable doubt, with no fair trial offered to the PKR leader, now the prime minister-in-waiting. It was “brushed aside” by the Court of Appeal.
Moreover, in a case of “constitutional conspiracy”, both the Court of Appeal and the Federal Court allegedly dug for evidence to justify Anwar’s conviction.
He said Anwar’s case was “a judicial tragedy” which brought shame to Malaysia’s judicial process.
Karpal Singh’s case
Hamid said a top judge, referred to as “ARLC”, or “Antagonist of Rules of Law and Constitution”, interfered in a majority decision to acquit the late DAP national chairman of his charge under the Sedition Act.
Hamid claimed that after the judge’s intervention, the decision of the Court of Appeal was changed – behind closed doors – from acquittal to a conviction.
Indira Gandhi’s case
Hamid said he was accused of judicial activism by a top judge for declaring the conversion of Indira’s children illegal in 2016.
Hamid said that the judge “threw tantrums in an uncivilised manner”.
“His unconstitutional conduct has caused me great mental stress and (is) still continuing,” he said.
By 2018, he was no longer assigned to hear cases related to the constitution or which involved public interests.
PKR MP and Mahathir’s cases
In relation to the case of Nik Nazmi Nik Ahmad, who was charged under the Peaceful Assembly Act for organising the “Blackout” rally in 2013, Hamid was part of the three-member bench which ruled that it was unconstitutional to require citizens to give a 10-day notice to hold a peaceful assembly.
“That judgment was a historical one in relation to peaceful assembly. Our decision was not appealable under the law,” Hamid wrote.
The decision backfired after a few top judges joined hands to suggest that constitutional issues must be heard by the Federal Court instead of the Court of Appeal.
According to Hamid, “the same judge (ARLC) subsequently came to sit in the Court of Appeal to overrule the effect of our decision”.
Hamid also claimed that certain judges showed “comical” jurisprudence when it came to cases brought by Mahathir.
“In one case brought by the current prime minister, one judge told me the relevant High Court judge was called by ARLC to dismiss his (Mahathir’s) application.”
Hamid was referring to Mahathir’s bid to challenge the appointment of Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin in 2017.
Judges helping companies
Hamid claimed that certain members of the judiciary had been aiding private companies to defraud the government of public funds. Their modus operandi, he said, was to enter into a contract with the government which the government had no intention of honouring.
The government would then terminate the deals and the companies would sue the government for breach of contract. A consent judgment would then be entered by the parties and damages assessed to compensate the companies.
Hamid said this arrangement was both illegal and unconstitutional.
Judiciary in the ‘New Malaysia’
Hamid said senior judges were trembling just before last year’s general election, wondering if they would be removed or put before a tribunal to answer for their sins, or for just staying silent.
According to Hamid, their concern and fear of regime change was palpable.
The judiciary has been in the doldrums for a long time. Many people have a sceptical view that courtroom arguments and legal precedents were often mere charades to hide backroom deals that had already been struck.
They knew or at least suspected that this was how matters were conducted at the Palace of Justice long before Hamid fired his salvo.
Has anything much changed since Najib Razak and Barisan Nasional’s fall? For Hamid, the short answer is “no”.
Hamid said judges’ fears were unfounded because after the resignation of Raus and Zulkefli last year, it was business as usual.
“They knew it was business as usual, and the fear of tribunalisation disappeared.”
In short, Hamid is saying that the judges who fixed cases, defrauded the government and made a mockery of the rule of law are still presiding over cases.
A government that wants to reform Malaysia’s institutions cannot ignore these allegations.
The way forward
Judicial integrity is sacrosanct to any system of government which is built on the rule of law. Law and order are the foundation upon which a nation is to be regulated and for society to lead an orderly life. That basic tenet of human existence has to be protected at all costs.
Hamid’s damning allegations could be dealt with through the existing legal framework and remedies, such as by way of internal inquiry, police or MACC investigations.
But given the gravity of the matter in its ramifications to the entire system of justice, and judging from the reactions of concerned parties and the public at large, nothing short of an RCI would suffice.
The public is mindful that many internal inquiries conducted in the past have not produced the desired results in terms of problem resolution while the police and MACC are saddled with too many cases to act promptly and decisively.
The public is aware that there are already a few high-profile cases being handled by the police and MACC, and they want to see results in these cases first.
An RCI may only be conferred with the power and authority to investigate, make its findings and recommend a course of action to be taken by the government or executive.
It may not have the power to prosecute, but given history and present realities, it is still the best mechanism for dealing with the problem.
This time around, the RCI has to examine the state of the judiciary most critically, including the allegations made by Hamid. It must leave no stones unturned and come out with strong and decisive recommendations.
Ultimately, it will put to test the commitment and resolve of the PH government to walk the talk about building a New Malaysia characterised by integrity, honesty, transparency and accountability in every aspect of governance.
PH must honour its word to assure the public and show that it remains faithful to its election pledges.
Wan Haron Wan Hassan is a senior lawyer and FMT reader.
The views expressed here are those of the author and do not necessarily reflect those of FMT.