|Justice Ian Chin lashes out at the "serving judge" and Dr. Mahathir|
|Wednesday, 25 June 2008 03:15pm|
In notes of proceedings of Wong Hua Seh v Abang Mohd. Porkan bin Haji Abang Budiman & Ding Kuong Hing on 24 June 12008 reproduced in full below (unedited), Justice Datuk Ian Chin lashed out at the "serving judge" mentioned in the News Straits Times report on 11 June 2008 and Tun Dr Mahathir Mohamad:
On the "serving judge"
"I can think of one reason and I can think of one judge (who is still serving) who will do that. This takes me back to 1996 or some other year, where Dr Mahathir had another group picture taken with the judges. To my disgust, this judge quickly planted himself behind the chair where Dr. Mahathir was to sit and when Dr Mahathir was about to be seated this judge declared: “Sir, I am always behind you.” It was disgusting even as a joke as it reduced the dignity of the office of a judge since the statement panders for endearment to Dr Mahathir. Since then I have always pondered whether this judge really meant what that statement would ordinarily convey which is that he will forever support Dr. Mahathir and to mean also, since it was made by a judge, he will decide what he thinks what Dr. Mahathir would like the verdict to be and worse still when told to."
On Tun Dr. Mahathir Mohamad
"Dr. Mahathir, by waving the supposed police report the way he did, lent support to the general held view that this prime minister kept a docket on everyone useful but with a skeleton in their cupboard so that he can manipulate then on pain of disclosing the skeleton. I thought only the STASI of the then Communist East Germany do such a thing but then it was done for the benefit of the state not for an individual. In my view he is trying to exploit this general believe to wave that supposed police report to get the public to believe that I have committed something unlawful which he is privy to and which the public is not unaware so that my integrity could be put under suspicion to make what I have revealed unbelievable. Let me declare to the public that I am as clean as a whistle and my life is an open book."
You can also click here to download the entire notes of proceedings.
Notes of Proceedings – Special Mention of Case
24 June 2008 Parties same 4.00 p.m. Court: 5
I have fixed this case for mentioned today because things
have been said since the last adjournment which impugned on my integrity
resulting in a question mark as to whether I am suitable to be a judge any more
and therefore, in respect of this case, whether I should continue to hear it
anymore. I have prepared in advance what I have to say today and had emailed
copy of the same to the lawyers for the parties before today in case I meet with
an accidental death and both counsel had agreed that in the event of that
happening, the statement I had sent them would be regarded as having been
pronounced in court. I have since amended certain parts of that statement and
counsel should delete the copy I had sent them and the one that counts is the
one appearing in the following pages. I will give counsel soft copy of the same.
I will only at the resumption of this case on July 7 ask counsel to state
whether they still have continued confidence in my hearing the case after the
attack on my integrity and after this statement of mine.
My integrity as a judge is publicly impugned by a “serving
judge” whose name was not disclosed but he was reported to have said this by the
New Straits Time, 11 June 2008 edn:
So a serving judge came out to condemn a colleague by implying that I acted out of spite because I thought Dr. Mahathir was responsible for blocking my promotion. What that serving judge said must be gospel truth since it is unthinkable that a serving judge would ever lie to condemn a colleague. Didhe speak the truth? The only time there were vacancies in the Court of Appeal, was in 2002 in so far I may be considered to be qualified to be considered for promotion. Was I interested? Did Dr Mahathir block my promotion? Judge for yourself whether I wanted to be promoted from this letter I wrote to the Chief Judge:
Before Chong Siew Fai retired as the Chief Judge he told me that he wanted me to go to KL but seeing how my wife had suffered all the years when I left it to her to attend to the children, I talked to my wife about moving to Kuala Lumpur. She said to me: “Let’s go home.” It was already decided by my wife even before Chong Siew Fai retired that we should be going home to Kota Kinabalu and not to Kuala Lumpur to take up any appointment if it should come my way. When Chong Siew Fai got that letter, he pleaded with me in my chambers not to decline promotion but I explained to him that because of my and my wife’s health and the welfare of my children, we have to go home. But there was no response by his successor to my letter.
Then came the seminar in Kuala Lumpur on merchant banking which I attended (together with other judges) and which was held on March 18 and 19. A dinner was held in conjunction with that seminar where Tun Dzaiddin attended and the matter of my promotion was mentioned as he had received the copy of the March 12 letter. I told Tun Dzaiddin that I am not interested and that I want to be posted to Kota Kinabalu to take over from the retiring judge. He there and then told me that I can go to Kota Kinabalu. I immediately called my wife in Kuching to tell her of the good news and that must be her happiest moment in her life for a long long time. In order to make sure that there is no change in Tun Dzaiddin’s mind about my declining promotion I wrote him the following letter soon after I returned to Kuching after that seminar:
So, there you have indisputable evidence that I did not want promotion and instead acceded to my wife’s wish to go home to Kota Kinabalu. How can there, then, be any truth in my entertaining the idea that Dr Mahathir had blocked my promotion and that I had on account of that acted out of spite in making the disclosure.
Now that the serving judge is shown to have lied when he said I have thought that Dr Mahathir had blocked my promotion since there could not be any occasion where I could have said that as to enable him to repeat what he had allegedly knew and disclosed to the newspapers, the public and I are entitled to ask why a serving judge would go to the extent of lying to vilify me for the benefit of Dr. Mahathir? I can think of one reason and I can think of one judge (who is still serving) who will do that. This takes me back to 1996 or some other year, where Dr Mahathir had another group picture taken with the judges. To my disgust, this judge quickly planted himself behind the chair where Dr. Mahathir was to sit and when Dr Mahathir was about to be seated this judge declared: “Sir, I am always behind you.” It was disgusting even as a joke as it reduced the dignity of the office of a judge since the statement panders for endearment to Dr Mahathir. Since then I have always pondered whether this judge really meant what that statement would ordinarily convey which is that he will forever support Dr. Mahathir and to mean also, since it was made by a judge, he will decide what he thinks what Dr. Mahathir would like the verdict to be and worse still when told to.
Since this serving judge went to the extent of lying about the events concerning why I am still not in the Court of Appeal and if he is really that judge, I am glad he has revealed and betrayed himself to be a henchman for Dr. Mahathir who went about chopping down a fellow judge with a lie to boot. Now, we really have to examine all his judgments to see whether he had in any of them decided for the benefit of Dr. Mahathir, including his friends and to the detriment of Dr. Mahathir foes. So it is up to the newspaper concerned to reveal the identity of this judge who spoke to them and as soon as the newspaper confirmed the name of the judge whom I am pretty sure who it is, I will write to the Chief Justice. If it was another judge, he should still be revealed by the newspaper for the lie he had spoken since he acted as a henchman for Dr. Mahathir. I have no apology to the other judge who had said “Sir, I am always behind you.” since he should disclose to the parties who will be appearing before him, what I would term, his declaration of undying loyalty to Dr. Mahathir.
Now to the matter of the veiled threat. Dr Mahathir did not say that he will remove judges by resorting to tribunal in those express words. You must know what went on before to appreciate what message he was attempting to convey in his devious way and to look at the subsequent events to put what he had said in the right perspective. To simply answer a question relating to event some 11 years ago without recollecting the circumstances and other events would be dicey and especially if the question posed relating to the threat was made to look as if a direct threat was made in those few words and in one sentence.
To begin with it is obvious that he came to the judges’ conference in 1997 because he was unhappy with a number of the decisions of the court. Apart from my decisions there was also the decision of the Federal Court in Arulpragasan Sandaraju v PP  4 CLJ 597 which imposed a heavier burden on the prosecution to prove their case, that is beyond reasonable doubt before the defence can be called resulting in an acquittal in that drug case and other cases as well. Consequent upon that case the government amended the law to provide for the prosecution case to be proved on a prima facie basis in an attempt to cast aside Arulpragasan Sandaraju v PP  4 CLJ 597. He came to the judges conference not to listen to the judges or engage in discussion with them but to tell the judges what he wanted and how unhappy he was and in his style uttered the veil threat by dropping words to that effect here and there and in my case, the terms, Borneo case, the tribunal, difficult it may be but was done and whether the judge was present but not mentioned all at once. He was also trying to influence the judges present as how they should decide and this can be gathered by the admission of the serving judge when he said the judges “were not influenced by what Dr. Mahathir’s said”. Unless you are one of the Federal Court majority judges, like Edgar Joseph Jr., who gave the leading judgment in Arulpragasan Sandaraju v PP or had read the decision which the government (meaning Dr Mahathir) disliked so much that almost immediately the law was changed, you may not be able to discern what the prime minister was trying to influence or unhappy about or driving at or even his criticism and that it was directed at these judges. Edgar Joseph Jr. together with another Federal Court judge (whom I cannot remember who it was) came to me after the session was over and Edgar Joseph Jr. asked me to ignore him as he must have realized the veiled threat against me. To me, and I am sure to many judges, it was and still is unacceptable to have a prime minister come to the judges’ conference to talk on matters which judges would certainly be in the course of making decisions on or later on. The other judges whose minority judgment found favour with the government resulting in the amendment to the law, would suddenly not remember much of unsavoury remarks directed not at them but at the majority judges.
As for me, after I handed down the judgment the newspapers carried out his
comment and that of a law lecturer giving vent to my belief that Dr Mahathir
was angry. During the conference, he went on in a rambling style and he
dropped those words I mentioned earlier. If you have heard the election case, was that not clear enough that he wanted to convey the message that he can
still use the tribunal to remove you. Of course, if the judges present had not
read about my judgment and the events following it they would not know
what Dr Mahathir was talking about or driving at but if you have, you would
realize what he said at the meeting contained a veiled threat.
The amendment was made following that Federal Court decision which held that the standard of proof for the prosecution case should be beyond reasonable doubt and not prima facie. The amendment to the law was an attempt to reverse that case by stating that the prosecution needed only to prove a prima facie case. The judges’ conference was held between 24-28 April where Dr. Mahathir attended and he tried to “influence” (as the serving judge suggested) the judges to be more convicting when he talked about the increasing number of drug addicts. It should therefore be asked whether anyone of us was influenced later by what was said by Dr. Mahathir during the conference, especially of those who were sent to the boot camp, regarding the drug cases that came their way subsequently? Soon after that judges’ conference but before being sent to the boot camp I heard a drug case and the test came for me. I was conscious of what had happened during the judges’ conference and what Dr Mahathir had said there and it did cross my mind to simply obey order and avoid anymore unpleasantness which I have experienced during the judges’ conference but in the end I did not take that course and instead went against that direction of the Chief Justice because I am of the view that the law is otherwise and the direction of the Chief Justice is wrong. Thus on the 13 May 1997 I handed down a judgment acquitting and discharging three accused and in the process refused to follow the directive. That was in the case of PP v Salip Hairal B. Panasang & Ors [Tawau High Court CT No. 01 of 1997] one part of a page reads:
I avoided mention of the directive in the judgment in the hope of lessening the wrath of the Chief Justice which may come my way though it was waved at me by the DPP by his referring to it. But the Chief Justice did not express any anger at me. My judicial officers immediately asked for a meeting with me and asked my what they should do. As usual, I told them that they have to make their own judgment whether to follow my decision or to follow the order but I did remind them the law on binding precedent.
As for the other judges, you have to examine their judgments to see it they had simply obeyed the directive and from there you can find out whether they had been subconsciously influenced by what went on in the judges’ conference. Particularly those who were sent to the boot camp because it was also its objective to make us take orders and that is why apart from what I have said earlier in the last sitting, junior officer was made our leader from whom we have to take orders from and one Sessions Court Judge who disagreed with that was made to publicly apologise on a podium to his junior officer leader. Another method employed was to chisel away the view we held of how independent we should be in our job as High Court judges and this they did by punishing or humiliating a High Court judge by making him carry a brick all the time after he broke the egg which each of us must carry wherever we went, including marching. All these were, in my view, for the purpose of softening us to take order for the benefit of the government, meaning Dr. Mahathir.
Quite a lot of judgments had to be set aside by the Federal Court because the Federal Court held that the amendment to the law had no retrospective effect contrary to what the directive had implied. It is pertinent to ask why High Court judges (apart from Sessions Court Judges and Magistrates) followed the directive. The then Chief Justice was amenable to reason and when I asked to be excused from following another directive - which was to require multiple cases to be fixed for hearing at one time and then to chose one to proceed with – he agreed so that I can continue to fix one case at a time for hearing. Was it then because of the existence in their subconscious mind the events in the judges’ conference, particularly the veiled threat of the prime minister against me, and the boot camp that they attended that made them decide the way they did without questioning it? If it was not I cannot see any reason for a High Court judge to simply take order.
Incidentally, you surrendered your wallet, your air ticket and hand phone when you checked into the camp and you cannot go anywhere as it is in an isolated place and you cannot leave for anywhere as there is no transport. You are totally cut off from the outside world, with no newspapers or television and with selected news conveyed to you at the assembly for the purpose of sampling reaction such as the news that a certain party had won a bye-election which elicited some applause from some young officers but they earned the rebuke of a High Court judge as that was an improper display of partisanship. But two did leave, one because of illness and the other the wife’s illness. Everyone who was not otherwise sick had to remain and we all did save for the duo; with each given a certificate after the end of stay. That Dr. Mahathir should even resort to lying about me absconding from the camp speaks volume for the character of such person; he is lying by resorting to repeating it as if it is the truth. This is the same prime minister who lied to the world that Anwar Ibrahim could have deliberately hurt himself when the latter appeared with the black eye. He is also waving a police report perhaps for the purpose of intimidating me or to blacken me in the eyes of the public. Let me tell the public that in the course of more than 16 years on the bench, I have some complaints and reports made against me all without substance and with the latest by one litigant to the anti-corruption agency after he was unhappy with my decision and after failing to get my decision reversed all the way up to the Federal Court. I have dealt with them in the way the law permits.
Dr. Mahathir, by waving the supposed police report the way he did, lent support to the general held view that this prime minister kept a docket on everyone useful but with a skeleton in their cupboard so that he can manipulate then on pain of disclosing the skeleton. I thought only the STASI of the then Communist East Germany do such a thing but then it was done for the benefit of the state not for an individual. In my view he is trying to exploit this general believe to wave that supposed police report to get the public to believe that I have committed something unlawful which he is privy to and which the public is not unaware so that my integrity could be put under suspicion to make what I have revealed unbelievable. Let me declare to the public that I am as clean as a whistle and my life is an open book.
In view of what I have said, this prime minister can use that piece of paper and go fly kite with it in the park, taking with him his lap dogs (the one who said I am in breach of the code of ethic and the other who said I should be sacked) so that they can chase after the birds while he flies the kite.
I have also at time entertained the idea that Dr. Mahathir must have a file on my then Chief Justice and he had employed the STASI tactic to do what he wanted the Chief Justice to do, including giving the order to my brother judge to dismiss the election petition which I have in the earlier sitting mentioned. Could it be possible that Dr. Mahathir had used his lawyer friend, to take them to holidays and taking photographs of those events, to set them up for Dr. Mahathir to later threaten them with corruption charges in order to get them to do his biddings? Very probable, in view of what I have revealed.
The public should know that a judge cannot reply to all sorts of allegations except where it is relevant like in the present case and only during the court proceedings. Otherwise he just take the punches with his hands tied and mouth plastered. But when you hear such allegations say from this prime minister or his lap dogs you should bear in mind:
Since I do not want promotion before, now or in the future nor any appointment after my retirement, what do I get out of all this knowing very well that I will be the target for vilification? It is this. I must be able to sleep well after I retired knowing that I have done all I can, like all the crucified judges before me, to tell Malaysians the danger they are in regarding the state of the judiciary. On final word, Dr. Mahathir for what he had done and for what he is trying to do is a devil incarnate but to those who had suffered under his hands, even that description my be rather complimentary.
Justice Datuk Ian H.C. Chin
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