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 ©Malaysiakini
(Used by permission)
by Fauwaz Abdul Aziz
The ‘judicial rot’ is not restricted to delayed written judgments and how judges
are promoted, but covers the whole spectrum of the judicial institution, said a
former United Nations (UN) official.
Former UN special rapporteur on the independence of judges and lawyers Param
Cumaraswamy said “a full stock-taking” of judicial affairs is urgently needed as
opposed to the current focus on the removal of incompetent judges.
He said the move towards reform should be started by Chief Justice Ahmad Fairuz
Sheikh Abdul Halim himself by addressing the allegations in a poison-pen letter
that among others accused him of abuse of power.
“In light of what has been happening and the latest events in the judiciary,
including the conduct of the chief justice himself who is the subject of a
poison pen letter, it is appropriate to review the judicial institution and
consider a wider reform process.
“It should not just involve addressing and preventing alleged judicial delays,
but the entire spectrum of the institution of the judiciary needs to be
reviewed,” he told malaysiakini in an interview yesterday.
Letter to CJ
Param said he had written to Fairuz on July 20 after receiving a copy of the
poison-pen letter several days earlier which contain serious allegations of
misconduct on his part and certain senior figures in the judicial fraternity.
“The allegations contained in the attached letter should not be discarded as
scurrilous and scandalous just because they are in a form of a surat layang
(poison pen letter) without a thorough investigation,” read Param’s letter.
“You may recall that the surat layang authored by (former High Court judge) Syed
Ahmad Idid (Syed Abdullah Aidid) on the goings on in the judiciary then was
discarded as scurrilous after a gloss-over purported investigation by the then
attorney-general (Mohtar Abdullah).
“Subsequent events showed that some of the allegations contained in the letter
were true,” it added.
In 1996, Syed Ahmad resigned from the judiciary after penning a 33-page report
which included allegations against 12 judges involving 39 cases of corruption,
21 cases of abuse of power, 52 cases of misconduct, immorality and other
indiscretions.
The late Mohtar had then dismissed the report as a ‘poison-pen letter’ and said
there were no grounds for prosecution as the allegations were baseless
Param was commenting on a New Straits Times report quoting the chief justice as
having said he will act on allegations that incompetent judicial officers had
been promoted.
These include judges who have failed to submit written judgments for extended
periods of time.
Address these issues
However, Param said a host of issues should be addressed by the government in
order for a sound and independent judicial system to be put in place. These are:
- the amendment of Article 121 in 1988;
- the lack of a clear expression in the Federal Constitution to the effect that
courts are independent and subject only to the Constitution;
- the lack of an independent mechanism for the selection and recommendation for
judicial appointments and promotions;
- the lack of an independent judicial complaints mechanism to deal with
complaints against judges, including those falling short of misconduct
justifying removal;
- the need for a review and expansion of the 1994 Judges’ Code of Ethics;
- the judiciary’s lack of institutional autonomy over financial aspects of court
administration;
- the appointment of judicial commissioners which, under Article 122 AB, does
not provide for security of tenure which is essential to secure independence;
- the need for a review of the positions of magistrate and session court judges
and court registrars. As they come under the Judicial and Leal Service
Commission, they are perceived to lack independence.
Yesterday, malaysiakini reported Param’s call for former
attorney-general Abu Talib Othman to desist from calling on the chief justice to
stop the judicial rot in view of his role in the 1988 judicial crisis.
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My dear Datuk Param
If, as no less than the Chief Justice of the Federal Court of Malaysia has said that he is in favour of a hybrid system, then I have to do a "Benchy" number on you and say that your questions are all "irrelevant"!
That word, "irrelevant," was developed into a judicial term of art at one of the most celebrated cases involving none other than the former Deputy Prime Minister of Malaysia, Datuk Seri Anwar Ibrahim.
So, my learned friend, your questions stand irrelevant, unless the quest for a hybrid system is nothing more than a red herring. But, is it a red herring?
Of course, I note with grave concern - please read nothing morbid in that - that the idea of a hybrid system has not been fleshed out, just an idea, despite the Scandavian tour "many moons ago" - as the American Indians say it.
I also note with ever graver concern that the highest judicial officer of the land has been on the record as saying that "preliminary investigations" showed no actual basis for the alleged 30 unwritten cases. Now the figure has jumped to 33 cases.
If and when the Bar Council is able to collect and collate the 30 cases in the ongoing survey as alleged, then I fear that our highest judicial officer may have misled the entire country. Of course, in Bolehland, as my late journalist friend M.G.G. Pillai would have said, "punishment is never meted out to the worthy." So then, what?
In other countries, top public officers and even Ministers of the Crown resign when they are found to have misled the country and/or Parliament. However, in Bolehland, such arguments will more than likely be ruled as "irrelevant" since "punishment is never meted out to the worthy."
So, don't worry, Datuk Param, my arguments may in like fate end. However, that our arguments suffer such a fate becomes irrelevant in the big picture. And the pig picture is this: Public confidence would have been shattered by this nonsensical sacrifice of trust and credibility in our public service.
Stephen Tan Ban Cheng