Saving the rule of law requires space and time
The allegations in Hamid Sultan’s affidavit have marred the image of the whole Judiciary.
IT is a wonder how claims of scandal within the Judiciary linked to the dissenting judgments in two high profile cases could have gained so much attention in the last two weeks.
And within this short time frame too Prime Minister Tun Dr Mahathir Mohamad announced that a Royal Commission of Inquiry (RCI) will be set up to address the matter.
This is something Malaysians should welcome and applaud.
The commission should be allowed to do its work without interference.
It should be given free hand to do its work and let the inquiry be one that is searching and honest in finding out what happened and why it was allowed to happen.
The findings should lead to action and plugging of the holes in the sys- tem of administration of justice.
However, it is only fair at this juncture to mention the improvements introduced by current Chief Justice Tan Sri Richard Malanjum in the last few months after he took on the tough job.
The “bomb” set by serving Court of Appeal judge Datuk Dr Hamid Sultan Abu Backer in his copious affidavit accused Malanjum of failing to protect and defend the integrity of the Judiciary in the sedition case of famous lawyer and politician Karpal Singh.
Hamid Sultan also made some scandalous claims which included alleged corruption within the highranking judges and how he was reprimanded by a top judge after he delivered his dissenting judgment in a custody case involving conversion issue.
What Hamid Sultan did not mention in his affidavit was that Malanjum has wasted no time with transformation within the Judiciary.
The steps taken so far included highly commendable ones such as tackling corruption by declaring judges’ assets, not accepting gifts for himself and setting up a collegiate for self-governance where there is a collective leadership and collective decision-making process by the top four judges, namely the Chief Justice, the Court of Appeal president and the two chief judges of Malaya, Sabah and Sarawak.
Spot checks have also been carried out from time to time by the CJ and the other top three judges for continuous improvement and efficiency in the administrative and adjudication process.
There is even a time sheet for management of judicial time.
Then there is the E-court reforms where there are initiatives to enhance public service delivery with the online balloting system, which is very good because case assignment and judges’ assignments are done by the system with no human intervention.
This can immediately repel any accusations of choosing judges or courts.
E-review, an online case management system without the physical presence of parties, is also in place. This humanely allows lawyers and their clients to spend their time more meaningfully while waiting for their turn in court.
The list can go on and on but suffice to mention these few for now.
Given that so many positives have been executed in just months, the Judiciary reform under Malanjum should be given more time to produce more sterling results.
As for the recent fiasco caused by the contents of the affidavit, there are already ongoing investigations and now the RCI. This could only mean that the government is serious about its reform.
The due process of the law must be observed. There are no other options other than to wait for the process to run.
Now just allow the authorities and the RCI some time and real space to do their work.
I cannot confidently say that the whole of Malaysia was shocked by the allegations in Court of Appeal judge Datuk Dr Hamid Sultan Abu Backer’s affidavit. Sure, there are serious allegations made against some members of the Judiciary and this ought to be of concern to every citizen who wants our key institutions’ integrity to be protected.
After all, it has often been said that the courts of law are the last bastion of justice for the ordinary citizens. However, decades ago, a judge had also made allegations of corruption and abuse of power within the Judiciary through a “surat layang” (poison letter). This judge subsequently resigned and the public did not know what happened to the allegations.
Quite recently, Datuk Seri Anwar Ibrahim reportedly said that the Agong had pardoned him on the basis that there was a travesty of justice. A travesty happens when the court case, or the process by which it is conducted, makes a mockery of the system. These are serious “observations or findings” by the pardons board and even then I opined that, not only as a closure for Anwar Ibrahim, but to safeguard the integrity of the judicial system, a Royal Commission of Inquiry (RCI) ought to held. In fact, I held the view that if the pardons board papers did indeed find that there was a “travesty of justice” in Anwar Ibrahim’s trials, then a police report ought to be made to facilitate the investigative bodies like the police and the the Malaysian Anti-Corruption Commission (MACC) to perform their duties.
Putting aside the specific legal purpose for which Hamid Sultan’s affidavit was made in relation to the matter currently in Court, the affidavit has brought about various consequences and legitimate concerns extraneous to the ongoing case itself. I have been in practice for years and I have never had a reason to doubt the judicial integrity of those judges before whom I have appeared.
I may not agree with them and had on various occasions appealed against their decisions and won. Nevertheless, I had never doubted their judicial integrity.
The allegations in Hamid Sultan’s affidavit, however, may cause honest and hardworking judges with impeccable integrity to feel major discomfort because the public perception now is that the Judiciary is corrupt and prone to abuse of power.
Hence, the urgency to get to the bottom of the allegations by investigating the truth of the allegations so that the image of the Judiciary can be restored.
I believe that the Chief Registrar of the Federal Court had made reports with the police and the MACC. If this is so, then by law, both the police and MACC have a legal duty to investigate the matter.
Both of these key institutions have the necessary resources and expertise to investigate the matter in accordance with the rule of law. As Datuk Seri Azam Baki, the Deputy Commissioner of MACC correctly pointed out, MACC is under duty to investigate if there are elements of corruption or abuse of power.
To me, it is equally clear from its Feb 18, 2019 statement that the MACC is equally in the dark as to the allegations in the affidavit. Hence, they have invited anyone with information to come forward under the whistleblower’s protection to assist in the investigations.
Furthermore, Section 47 of the MACC Act clearly lays a legal obligation on every person inquired by an authorised MACC officer to provide information that is requested and it is an offence to refuse to do so under Section 48 of the same Act. Such provisions of the MACC Act exist to enable MACC to act effectively against matters of corruption and abuse of power. It is a mistake that many people make – perceiving that the MACC is an executive branch but forgetting that the Chief of MACC is appointed by the Agong, just like the Prime Minister. That is how independent they are in law.
I feel that there is almost a mob call for an RCI to be set up. I am not particularly against the idea and I can understand its use in some aspects. At the end of the day, the RCI will only make recommendations to the executive. I sincerely doubt that this will bring closure to the image of the Judiciary.
Furthermore, before an RCI can be set up, a task force will be set up. This task force will determine whether there is a need to set up an RCI or not. Having been part of a task force before, I can safely say from experience that without the assistance of investigative bodies like PDRM and MACC, it is going to be a waste of time and resources.
Hence, I would strongly suggest that, in the interests of protecting the integrity of the Judiciary and upholding the rule of law, the investigative bodies ought to continue with their duties to investigate the allegations.
The urgency of the investigations is to restore the image of the Judiciary which has been somewhat blemished. The potential setting up of an RCI does not in law suspend their duties when police and MACC reports have been made of serious criminal conduct. Their investigations, on the other hand, would be helpful to the task force.
Let us also not forget that the public ought to protect the integrity of PDRM and MACC too by supporting them when they want to perform their duties under the law. If the MACC does not carry out its legal duties, then there may be adverse allegations against them which we should avoid. The Bar Council should also issue a statement on the legal process and rule of law in this regard so that the public is accordingly educated.
When we say rule of law, always remember that the law rules over everyone, the prime minister, the judge or the beggar on the street. The MACC can record statements from anyone. Everyone is subject to the law and the legal process. For now, what is paramount is to clear the names of the current hardworking and honest judges in particular, and the Judiciary in general.