Restore public confidence in the judiciary by serving old wine in new bottles?

Posted on June 15, 2018

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many-colours-one-dreamIMG-20180512-WA0040I want to start this post by reproducing what I have written in an earlier post.

That post was written on 23rd November, 2010 :

“…in the arena in which the gladiators of the law sought to right the wrongs of the land, one component was indispensable.

The impartial judge.

The judge who could rise above his or her own prejudices, honestly evaluate the evidence, faithfully interpret and apply the law, and, most importantly, in full knowledge that he or she, too, must one day be judged, endeavour to do justice, without fear or favour.

Since the case of the 4 apostates in the Kota Baru High Court in February, 2001, I have become increasingly conscious that our courts lack this vital ingredient.

In July, 2004, representing the women NGOs in the Shamala case, I sat dumbfounded as Justice Faiza ordered that the two children, then aged 2 and 4, be placed in the custody of the Hindu mother and, in the same breath, ordered the mother that as she raised and nurtured those two young lives, she was not to in any way howsoever, expose them to her Hindu faith.

I cannot imagine that there was anyone in court that day who, understanding the full purport of the order, did not envisage that before the same could be drawn up and affixed with the seal of the court, Shamala would leave the jurisdiction of the court, with children in tow, in search of justice and compassion.

She and her children found none in Justice Faiza that morning.

On 12th November, 2010, cross-appeals from both Shamala and her husband from the several decisions by Justice Faiza came before the Federal Court for consideration and determination.

Also before the Federal Court was the matter of the husband’s objection to Shamala’s appeals being heard, he contending that she having committed contempt of the orders of Justice Faiza by her having removed the children from the jurisdiction of the court, thus depriving him his visitation rights, she ought not to be heard on her appeals.

The husband’s argument was that none of Shamala’s appeals ought be heard until she has purged her contempt.

She should not have the ears of their Lordships whilst she was still in contempt of Faiza’s orders by remaining outside of jurisdiction, so the argument would have been.

Malaysiakini reports that by a unanimous decision, the Federal Court allowed the husband’s preliminary objection.

I do not know what arguments were taken to counter the stand of the husband, but I want to ask the five judges of the Federal Court and Justice Faiza this.

Please ask your mothers, your wives and your daughters if they would have done any differently from Shamala if they had been at the receiving end of an order like that of Justice Faiza’s?

If they had been allowed custody of their young children but ordered never to expose them to their respective way of lives, would they have submitted to the full force of such orders?

Or would they, too, like Shamala, have taken flight in search of justice elsewhere?

Malaysiakini reported on 12th November that, in the Federal Court, Chief Justice Zaki said :

“To grant her further opportunity would encourage persons like her to commit contempt against the court, with the hope that the court will give him or her the opportunity to correct it. There is no reason to defer any more time. The law and order of the court is meant to be respected, and complied with, and not to be looked down or disdained”.

The pronouncement of the Federal Court in Shamala’s case has served to confirm what I have felt for some time now : the average citizen can no longer look to the courts for justice.

I am convinced that the judiciary can only be returned to the people as their final bastion when an alternative government, led by a prime minister who is not motivated by hopes of re-election at the next polls, but by the need to put in place vital reforms during his tenure, is installed after the next general election.

I have therefore decided to hang up my robes, cease legal practise, and devote myself to working with the rakyat in the coming months to establish a new government and have installed a reform-minded prime minister after the 13th General Election.”

We now have a new non-BN government.

Led by a prime minister who, I now believe, is not motivated by hopes of re-election at the next polls, but by the need to put in place vital reforms during his tenure.

He is working to restore public confidence in the institutions meant to serve the rakyat.

Chief Justice Raus and Court of Appeal President Zulkefli have now relented and submitted their resignations.

I agree with calls for them to go now, and not wait until 31st July.

Since announcement of their resignations, there have been suggestions from the public for the new Chief Justice to be picked from current sitting judges.

Two have been named.

Federal Court Judge Zainun Ali and Chief Judge of the High Courts of Sabah and Sarawak, Richard Malanjum.

I have appeared before both whilst still in legal practice.

Respectfully, I am against the idea of appointing as Chief Justice, anyone who is currently sitting as a judge.

i will state why now.

First, a little bit of history.

One man, sitting as a judge of the High Court, might have changed the course of this nation from what it has gone through leading up to where it now is, had he had the courage and fortitude to act without fear or favour, serving only the course of justice and nothing else.

Justice Ajaib Singh.

This goes back to the era and the episode of the sacking of Tun Salleh Abas.

A panel of inquiry had been assembled to look into the charges against Salleh.

Salleh, being dissatisfied with the composition of the panel, took the decision not to participate in the proceedings, and to instead challenge the legality of those proceedings in court.

The panel moved with unholy haste.

Salleh’s lawyers filed an application at the High Court to get an order to prohibit the panel from submitting its report to the King, pending the hearing of his application to consider the legality of the panel and its proceedings.

That application came up for hearing before Ajaib Singh on 1st July, 1987, a Friday. After hearing submissions, he postponed his decision to the following day.

Next day, he again was minded to postpone the decision to Monday, 4th July.

Lawyers fearing that the panel might act to send its report before Monday, asked for an interrim stay to maintain the status quo until Ajaib delivered his decision on Monday.

Ajaib refused.

Shortly after, lawyers acting for Salleh applied to a hastily assembled corum of the Supreme Court for the same interrim stay order and were granted the same.

For this courageous act to serve justice at this most darkest hour in the history of our judiciary, the Supreme Court judges who granted the interrim stay order were suspended.

You can read more about this HERE.

Read Ajaib’s judgments in land law matters.

Very sound.

The grant of an interrim stay to Salleh until he delivered his decision in less than 48 hours would have maintained the status quo.

I imagine Ajaib would have given many such orders in hearing and disposing the many land disputes that had gone before him.

Why did he refuse Salleh the interrim order?

There was much speculation about the personal circumstances of the judge.

It all pointed to this.

He did not act bravely, without fear or favour.

It was suggested by some that owing to those personal circumstances, he might have been pressured to act as he did.

In my view, if such were the case, he should have done the honourable thing and resigned.

In the result, Salleh was dismissed from office, together with two of the five suspended Supreme Court judges.

Hamid Omar replaced Salleh.

Ajaib was later promoted to the Supreme Court.

And our judiciary has never been the same since.

Fast forward to 1996.

I was already in legal practice then.

A 33-page letter, containing 112 allegations of corruption, abuses of power and misconduct involving judges found its way into public space.

Much of it turned on the alleged misconduct of then Lord President of the Supreme Court, Eusoff Chin.

The then AG, Moktar Abdullah, vowed to have this attempt to “discredit the judiciary and subvert justice in our beloved country” thoroughly investigated to bring to justice those who were behind the letter.

Note that there was no mention that the contents of the letter would be investigated.

The message would be ignored; the messenger hunted down.

Four months later, the AG announced that the person behind the letter was a judge of the High Court, and he had resigned.

Who was he?

Justice Syed Ahmad Idid.

Had Idid lied?

In 2015, retired Court of Appeal judge Vohrah spoke of misconduct on the part of Eusoff Chin round about the time that Idid had written his letter. You can read about it HERE.

The vilified messenger of 1996 had finally been vindicated.

I pause here to ask this.

In 1996, when Idid sought to blow the whistle on the judicial misconduct, was he the only one who saw the need to do so?

Or was he the only one who had the courage to not ‘look away’ and mind his own business?

From 1996 until Vohrah’s revelation, has the judiciary lived up to its noble purpose as enshrined in our constitution?

The man who replaced Eusoff Chin at the top of the judiciary, Fairuz, became infamous for his involvement with lawyer VK Lingam, the Mr Fix-it of matters in court.

Who, subsequent to Fairuz, has acted decisively to ‘clean up’ the judiciary and restore public confidence in the same?

Ariffin Zakaria?

Ask any lawyer worth his salt how he or she views the decision of  the Federal Court that sent Anwar to Sungai Buloh in 2015, and you will have your answer.

After the Election Commission announced in late 2014 that it was going to commence its redelineation exercise, I commenced my action in the High Court to get an order to direct the EC to make available to me information relating to the proposed redelineation.

The High Court dismissed my application, in essence holding me to be a busybody.

The Court of Appeal dismissed my appeal, essentially coming to the conclusion that since we do not have a Freedom of Information Act, I did not have a right to that information I sought!!!

The Federal Court refused me leave to appeal against the decision of the Court of Appeal.

Should these decisions inspire confidence that the judiciary is here to defend my right of “approximate equality” in the value of my vote with that of another voter?

Go to the matter of the redelineation carried out by the Election Commission that was rushed through parliament before the 14th GE.

The Selangor state government sought to challenge the exercise.

The Court of Appeal dismissed the challenge, on the grounds that the EC’s redelineation exercise could not be challenged by way of judicial review. The matter then was taken up to the Federal Court. The Federal Court upheld the decision of the Court of Appeal, that the redelineation exercise in parliamentary and state constituencies was not amenable to judicial review.

Here was a case that put before the Federal Court a case of wholesale gerrymandering, in violation of the spirit and intent of the constitution that the EC should strive to achieve approximate equality between constituencies.

The Federal Court ruled that this was not amenable to judicial review.

Preserve, protect and defend the Constitution?

In my view, the judges who held office in 1996, who chose to look away, to not get involved, even as Idid was punished for blowing the whistle on judicial misconduct, had, by their silence, condoned the misconduct.

They were, by their silence and continued association, as guilty of as those who were abusing judicial office.

Why should I see those who hold judicial office now, and who chose to be silent as our right to free and fair elections was violated by EC and facilitated by their peers, any differently?

If they do not have the courage to speak up as did Idid, then they should all do the honourable thing that Ajaib should have done.

All is not well in the Palace of Justice.

If we are serious about cleaning up the judiciary, we will have to look beyond the current crop of judges to lead the way.

Instead, look to the Malaysian Bar.

There are many who are competent and with the requisite integrity to do what needs to be done.