Y.B. Dato’ Ngeh Koo Ham
On the topic
‘CURRENT JUDICIAL CRISIS IN MALAYSIA’
at the Law Career Convention 2008
organized by University Of Malaya
in collaboration with Malaysian Law Students Union
in The United Kingdom and ELRE (KPUM)
on 6th September 2008
at The Foyer Of The Faculty Of Law
University Malaya, Kuala Lumpur.
I 1988 JUDICIAL CRISIS
The phrase ‘judiciary crisis of 1988’ is generally understood as relating to the suspension and sacking of Supreme Court judges including the then Lord President Tun Salleh Abas.
The crisis in fact went beyond that to include a besieged constitution and the erosion of the important principle governing democracies - the separation of powers.
Since independence in 1957, the Malaysian judiciary was always held in high esteem throughout the Commonwealth for being reputably independent and impartial. The attacks on the judiciary began in 1986 when the Supreme Court decided in the 'Berthelsen case' that the immigration director-general was wrong to revoke the work permit of Asian Wall Street Journal correspondent John Bethelson because he was not given a chance to explain himself when the decision was made.
Then prime minister Dato’ Seri Dr Mahathir Mohamad (now Tun) subsequently expressed concerns that the judiciary might not be interpreting the law as how Parliament and the Executive intended it to.
He also moved amendments to the Police Act and the Printing Presses and Publications Act where scathing attacks were made against the judiciary.
However, the most contentious amendment to the law was when Article 121(1) of the federal constitution - originally vesting the judicial power in the courts - was replaced by "jurisdiction and powers as may be conferred by or under federal law." This effectively removed the independence of the judiciary and subjected the courts to be subservient to federal law made by Parliament.
The 'Umno 11' case
Meanwhile in the courts, more cases which showed judges were capable of departing from government policies arose but none was more controversial than the 'Umno 11 case'.
In the 1987 Umno party elections, Mahathir won by a very slim majority of 43 votes against Tengku Razaleigh Hamzah for the party presidency in 1987.
Eleven Umno members then challenged the validity of this election, which resulted in then High Court judge Harun Hashim declaring that Umno was an unlawful society. The plaintiffs appealed to the Supreme Court and Salleh Abas had fixed the hearing on June 13, 1988 by a full bench of nine Supreme Court judges.
It was apparent that the political survival of Umno and Mahathir was at stake and many people interpreted this as the reason for the judicial crisis that was to follow.
In light of the judiciary losing its judicial powers and Mahathir’s outbursts against judges in Parliament, Salleh met with 20 other judges and wrote a letter to the King and the state rulers on March 26, 1988 expressing hope that "the baseless remarks (against the judiciary) will cease."On May 27, 1988 Salleh Abas was summoned to Mahathir’s office and was told that the King - Sultan Iskandar Al-Haj of Johor - wished him to retire as Lord President because of the said letter. He also received his letter of suspension that was backdated to May 26.
The following day, Salleh Abas sent a letter of resignation but withdrew it and held a press conference. On June 9, 1988 the prime minister told the King that Salleh Abas committed further misconduct for using the press to demand for a public hearing of the tribunal made up of high judicial officers.A tribunal to try Salleh Abas
was quickly set up and the dates to hear the ‘Umno 11' appeal was vacated upon his suspension at the instructions of acting Lord President Hamid Omar.
Six tribunal members were appointed pursuant to the federal constitution by the King on June 11. They were acting Lord President and chairperson Abdul Hamid Omar, former Federal Court judge Abdul Aziz Mohamed Zain, Dewan Rakyat speaker Mohamed Zahir Ismail, Singapore Supreme Court judge TS Sinnathuray, Sri Lankan Chief Justice KAP Ranasinghe and Chief Justice of Borneo Lee Hun Hoe.
The list of charges against Salleh Abas includes making critical statements against the government on several occasions, falsely claiming that the letter written to the King was on behalf of the judges and giving untrue information to the media that discredited the government.
The tribunal commenced its hearing on June 29 and Salleh was absent throughout but his counsels led by Raja Aziz Addruse were present.
Meanwhile, the tribunal was assisted by then attorney-general Abu Talib Othman who submitted there was enough evidence to recommend Salleh Abas's removal from office. Salleh Abas through his counsel Raja Aziz who was the Bar Council president then, had applied for an interim stay against the tribunal but High Court judge Ajaib Singh refused it.
Raja Aziz went to see Wan Suleiman Pawanteh, the most senior judge at that time about this matter and the latter convened a special sitting of the Supreme Court on Saturday, July 2 1988Raja Aziz had argued that the tribunal members were unconstitutional and invalid and the five Supreme Court judges - Wan Suleiman, George Seah, Eusoffe Abdoolcader, Mohd Azmi Kamaruddin and Wan Hamzah Mohamed Salleh - unanimously granted the exparte order.Salleh Abas wanted to challenge the constitution of the tribunal members and needed the order to halt the tribunal proceedings from carrying on in Parliament Building. Several incidents including the then chief registrar Haidar Mohd Noor hiding the court seal and locking the court doors as well as the Parliament gates being locked led to criticisms that there was a ploy to prevent anything from disrupting the tribunal.
The final blow
Two days after the order was given, the five judges were suspended from their duties without a reason. With six Supreme Court judges suspended, it effectively suspended the Supreme Court which meant the challenge toward the legality of the tribunal could not be heard.
The tribunal finished its report on July 7, 1988 It recommended that Salleh Abas be removed from office on the grounds of his misbehaviour which indicated his inability to discharge his duties and function as Lord President properly.
Based on this, Salleh Abas was removed as Lord President on Aug 8, 1988 by the King based on the recommendation of the tribunal. Abdul Hamid became Lord President soon after. It is also interesting to note that the ‘Umno 11' appeal was heard the same day and dismissed the following day.
Salleh Abas’s dismissal led the Bar Council to pass a resolution in an extraordinary general meeting refusing to recognize Abdul Hamid as the new Lord President.
Meanwhile, a second tribunal chaired by judge Edgar Joseph Jr - the 13th most senior judge out of 28 High Court judges - was set up to look into the conduct of the five suspended Supreme Court judges.
The last blow to the judiciary was dealt by Edgar who found Wan Suleiman and George Seah guilty of misconduct and the King on Oct 4, 1988 ordered for their dismissal. The other three - Eusoffe, Azmi and Wan Hamzah were reinstated but the judiciary was never the same again.
With the Supreme Court incapacitated and the amended constitution limiting the judiciary’s powers to only as much that Parliament might grant it - this period became known as the ‘blackest days’ in Malaysia’s history.
Consequences to the 1988 Judicial Crisis
(i) Poorer quality of judges appointed
Senior members of the Bar who used to be a source to recruit quality judges refused appointment to the Bench. The second best who were seen as supporting Abdul Hamid were elevated to the Bench. The Bar throughout the country refused to host the traditional dinners in honour of Supreme Court judges who sit on circuit.
In Ipoh it became the talk of town that you need only to host a dinner to be elevated to the Bench. On the first year of the Bar’s boycott, a lawyer who hosted a dinner for the supreme judges sitting on circuit and the next year he was appointed a Judicial Commission. The next year another lawyer hosted the dinner and he was also later elevated to the Bench.
(ii) Judges are reluctant to hear cases against the Government (Executive)
(iii) Relationship and networking rather than merits determine the promotion of a judge.
The rot starts to set in.
II JUDICIARY AND CORRUPTION
There are many instances of corruption all over the country, involving contractors, civil servants, policemen, clerks, politicians and many others in positions of authority.
But corruption affects us most insidiously when we are made to believe that it exists in the Judiciary. This is not only disturbing but it is most devastating because the Judiciary is looked upon as the dispenser of justice. It is seen as the last bastion of hope for poor and weak seeking justice and protection against the powers of the state. But when that institution is seen to be corrupt it destroys our notion of justice and fairness.
This is why the Judiciary must be perceived as being honest and clean. And whenever some doubt is cast, an immediate investigation is necessary to cleanse the Judiciary and restore public confidence. Unfortunately serious investigations have not been the norm – very often such undertakings are meant to whitewash and pretend that everything is fine. Litany of serious allegations
In 1996 a poison letter was circulated. It listed a litany of serious allegations – 112 in all – against 12 judges. Of the said total, 21 were allegations pertaining to the abuse of power, 39 of corruption and 52 of misconduct, immorality and other indiscretions. It claimed corrupt payments of RM50,000 with recipients graduating to accepting millions from named persons.
This poison-pen letter totally discredited the Judiciary and did irreparable damage. People were shocked into disbelief reading the detailed accounts of gross misconduct. It would have warranted
a Royal Commission to investigate these allegations but that was not the case. An internal police investigation concluded that the allegations were “wholly untrue and baseless.” If that was the case, why was no action taken against the writer for fabrication and false publication? Weren’t Lim Guan Eng and Irene Fernandez convicted for allegedly committing a similar offence? Was it the fear that the writer would spill the beans and reveal details of incriminating evidence that prevented an open trial?
The writer was believed to be Justice Syed Idid of the High Court and he should know better! Appearing before preferred judges
The controversial Ayer Molek Rubber Co case exposed the scandalous situation in the Judiciary. Lawyers were found to file their cases in such a way that they could manipulate their way to appear before their preferred judges. This apparently was prevalent in cases involving commercial crimes.
Even the New Straits Times was moved to comment in an editorial that “…questions are already being asked why the courts and judges are speedy in hearing commercial cases, especially when big companies and big business were involved, and the apparent ease with which parties choose courts to go to and which judge to seek out…This is inevitable when thousands of criminal and civil cases have been held up for years. Some remand prisoners have to languish in jails for years while waiting to stand trial.” (3 Sept 1995)
The Court of Appeal in this case went so far as to say that from the facts, it gave “the impression to right thinking people that litigants can choose the judge before whom they wish to appear for their case to be adjudicated upon.” The Court of Appeal pointed out that the High Court judge had ignored the provisions of the law and seemed to allege that injustice was indeed perpetrated by the court.
Justice N. H. Chan observed that the process of the High Court was abused and that the Court proceedings were manipulated to win the injunction against Ayer Molek.
He asserted that the “plaintiffs through their legal advisers have abused the process of the High Court by instigating the injustice through misuse of the Court’s procedure by manipulating it in such a way that it became manifestly unfair to the defendants.”
He added that “by doing what they did, these unethical lawyers have brought the administration of justice into disrepute among right thinking people.”
Justice N H Chan in that famous quotation remarked, “All is not well in the House of Denmark.” It is a damning indictment. Incidentally, the Court was housed in the building called “Wisma Denmark”
Of course, the Federal Court overruled this judgment. Chief Justice, Tun Eusoff Chin, in delivering judgment asked, “Why should the learned judges of the Court of Appeal go on a frolic of their own and find fault with the High Court judge, criticize the conduct of the applicant’s solicitors in a very disparaging manner?”
Inexplicably, Eusoff Chin ordered the damning remarks of the Appeal Court judges to be expunged from the records. Why? Was it because they were incriminating and exposed the rot in the Judiciary?
In early 1998 photographs of Tun Eusoff Chin, the Chief Justice, holidaying in New Zealand with a lawyer who also had appeared before the same judge were published on the Internet. This rightly caused an uproar. This was improper behaviour and that such socializing was not consistent with the proper behaviour of a judicial personality, observed Dr Rais Yatim.
This was a scandalous episode that did irreparable damage to the Judiciary. It is totally unpalatable that the cause of this damage should be the Chief Justice of Malaysia himself. You may recall what the High Court Judge Datuk Muhammad Kamil bin Ahmad had to say when declaring the State election held in March 1999 for the Likas Constituency in Sabah null and void. He revealed that he had received directive over the phone to strike out the two election petitions without a hearing.
The Malaysian Bar viewed this blatant and corrupt attempt as an “affront to judicial integrity and independence of the learned judge and the Rule of Law” and called for action by the authorities concerned. As to be expected, nothing transpired. But when Dato’ Seri Anwar Ibrahim allegedly instructed the police regarding his case he was convicted for corruption.
Grave wrong must be righted
Similarly, there is still grave concern about the Judicial Crisis of 1988. What transpired – the intrigue, the plotting, judiciary conspiring with the executive – is still crying out for justice and demanding that a grave wrong be righted.
Likewise, the choice of the judge and the manner by which the judge was chosen to hear the Anwar case has to be investigated. The way the judge became an active combatant in this case rather than adopting a strict neutral stance needs to be looked into. Why evidence given under oath had to be expunged when the case wasn’t going well for the prosecution has to be clarified. This entire sordid and shameful episode surrounding this case which was reeking with injustice was very aptly summed up by the Chairman of the Bar Council then, R. R. Chelvarajah, “The unusual manner in which the trial itself was conducted — for example, the refusal of bail; the expunging of evidence given on oath; preventing the accused from raising every possible and conceivable defence and limiting him to particular defences; compelling the defence to state beforehand what evidence the defence sought to adduce through various witnesses; disallowing witnesses from testifying and making rulings as to their relevancy without first hearing their testimony; citing and threatening defence lawyers with contempt proceedings including sentencing a defence lawyer to three months’ imprisonment for contempt while in the exercise of their legal duties — raises questions impinging on the administration of justice.” It is imperative that the actions and conduct of the judges must be beyond reproach and above suspicion and be seen and perceived to be so if they are to command the respect and confidence of the public.
The image of the Judiciary has been severely battered and shattered through the unbecoming conduct and questionable behaviour of some unethical judges. They have insidiously and brazenly destroyed an institution that was in the past viewed with admiration and awe for its high standards of ethics and sound judgments. There is now an urgent need to restore and maintain the dignity, integrity, independence and impartiality of the Judiciary.
This can only be achieved when a Royal Commission is established in an honest attempt to restore its lost respect and confidence and purge the Judiciary of all the negative elements plaguing it.
III BACK LOG OF CASES
Courts must be able to dispense justice efficiently but at the moment this is not the case. There are now more than 900,000 cases pending in court.
Breakdown of pending cases as on 31.3.2008
Court Of Appeal
There is an urgent need to solve this problem. There are too many cases of Justice delayed is justice denied. Generally, the public and the lawyers cannot expect efficient justice from the courts at the moment.
IV ROYAL COMMISSION OF INQUIRY INTO THE LINGAM VIDEO CLIP
The Royal Commission of Inquiry Into the V.K. Lingam Video Clip was formed in late 2007 to investigate into an allegation of illegal intervention into the judicial appointment process of Malaysian judges purportedly occurred in 2002.http://en.wikipedia.org/wiki/Royal_Commission_of_Inquiry_into_the_Lingam_Video_Clip#cite_note-NstNov29-0 The formation of the commission was a follow-up to a recommendation by a three-man panel which was tasked to determine the authenticity of a video clip of a telephone conversation that raised the allegation.
The 5-person commission was chaired by former Chief Judge of Malaya Haidar Mohamed Noor. The other four members were former Chief Judge of Sabah and Sarawak Steve Shim Lip Kiong, former Solicitor-General Zaiton Zawiyah Puteh, historian Khoo Kay Kim and retired Court of Appeal Judge Mahadev Shankar
The allegation was first made public in September 2007 by former Deputy Prime Minister of Malaysia Anwar Ibrahim whom released a low quality video showing lawyer V.K. Lingam allegedly talking to former Chief Judge of Malaya Ahmad Fairuz Abdul Halim about the appointment of the latter into the office of Chief Justice of the Federal Court. Ahmad Fairuz retired as the Chief Justice of the Federal Court in late 2007 after his tender was not renewed due to objection from the Conference of Rulers..
The Royal Commission began with the purpose of investigating the purported tampering in the appointment of judges following the release of a widely circulated (including on You Tube) eight-minute video clip featuring what appears to be a well-connected senior lawyer, V.K. Lingam, purportedly discussing promotions and factionalism among senior judges over the phone with Ahmad Fairuz Sheikh Abdul Halim, the number 3 judge in the country at the time the clip was recorded on a mobile phone in 2002. Lingam is also seen apparently talking to Fairuz about the latter's own rise within the judiciary. At the time the video was released on September 19, 2007.
Ahmad Fairuz was later made the Chief Justice of Malaysia and his four-year tenure as Chief Justice expired on October 31, 2007. His tenure was not extended, and his post was taken over by Abdul Hamid Mohamad. The lawyer is also heard saying that he had discussed the judiciary with tycoon Vincent Tan and another prominent ruling party politician - both regarded as intermediaries to then-prime minister Mahathir Mohamad. The conversation suggests that certain top judges are closely connected with the country's top leaders via political intermediaries and business cronies. The minister in the Prime Minister's Department, Nazri Abdul Aziz, has said that the judge implicated in the video clip had called him to deny that he was the one talking to the lawyer.
On January 15, 2008 the Royal Commission began their inquiry of the video that alleges political interference in judicial appointments and the manipulation of high-profile cases. On January 17, 2008 Mahathir was brought before a Royal Commission that look the manipulation of top judicial appointments during his admnistration, a scandal that has cast doubts about the independence of Malaysia's judiciary. He was made to testify before a government inquiry into a secretly recorded video clip that showed a man believed to be a prominent lawyer, V. K. Lingam, boasting that he could get key judicial appointments made with Mahathir's help. Throughout the inquiry Mahathir feign ignorance and forgot key timelines. Continuing with the inquiries, former Chief Justice of Malaysia Tun Mohamed Eusoff Chin was called before the Commission whereby he denied he was a close acquiantance of the lawyer V.K. Lingam even though he took a vacation with him to New Zealand.
Lingam was also called before the Royal Commission, where he claim he did not recall the phone conversation he made to Ahmad Fairuz. He said he might have been drunk at that time and denied he had ever tried to influence judicial appointments. Vincent Tan who was next was questioned about his influence on former Prime Minister Mahathir Mohammad and he denied that he ever discussed judicial appointments with Mahathir. He rebutted Mahathir's claims that he might have consulted with Tan over judicial appointments.
A new revelation appeared showing PKR Advisor Anwar Ibrahim releasing a third video clip purportedly showing Lingam talking about having dinner with and buying an expensive gift for former Chief Justice Tun Mohamed Dzaiddin Abdullah. Anwar said he was disappointed the Royal Commission which focused solely on the fixing of judges and did not allow evidence that court decisions had also been fixed. Anwar also claimed that there was a third video clip that implicated more judges in the judiciary.
Results from the Commission
The Royal Commission of Inquiry into the Lingam video clip has found that it was former Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim who was talking to prominent lawyer Datuk V.K. Lingam on the telephone. Sources said the five-man panel also found that the video clip was authentic and that the conversation was true in substance. They said the commission also found that it was lawyer Loh Mui Fah who Lingam was speaking to after his telephone conversation with Fairuz. Commission chairman Tan Sri Haidar Mohamed Noor presented a two-volume report on the findings to the Yang di-Pertuan Agong Tuanku Mizan Zainal Abidin at the Istana Negara on May 9, 2008
The observation made in the report by the Royal Commission was that former deputy minister in the Prime Minister's Department Datuk Seri Tengku Adnan Tengku Mansor and tycoon Tan Sri Vincent Tan had direct influence in the appointment and promotion of judges. The commission also doubted the evidence given by the two in the inquiry as they had made bare denials to penetrating questions posed by lawyers who appeared for interested parties. The report also noted that there was basis for a probe by investigation agencies on the alleged close links between Lingam and another former chief justice, Tun Mohd Eusoff Chin, who held the position from 1994 to 2000.
The Royal Commission said that the evidence presented and chronology of the judicial appointments being discussed in the video clip proved that:
It was prominent lawyer Datuk V.K. Lingam on the telephone in the clip,
It was former Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim on the other end of the line, and
The process of judicial appointments was open to manipulation by the Executive and private citizens.
It was a joint operation of Lingam , Tengku Adnan and business tycoon Tan Sri Vincent Tan as persons responsible for ensuring the late Tan Sri Dr Abdul Malek Ahmad did not become Chief Judge of Malaya
According to Loh Gwo Burne, the person who took videotape the incriminating the VK Lingam video clip shown to the Royal Commission of Inquiry, what was shown was only 20% to 30% of what was recorded that night at the prominent lawyer’s house in December 2001. He mentioned that there is a disk located somewhere in China containing the complete recording segments named VK1, VK2 and others. Most of what was made public was from the first segment of VK1. Loh said he made three copies from the videotape. One copy was in China, the other he could not remember where he had kept it and the third was given to the late lawyer Manjit Singh.
Loh remembered that Lingam had mentioned about how he had manipulated cases to his advantage by using certain lawyers against certain judges to make sure the judgments would be in his favour.
CONCLUSION AND PROPOSALS
1. There is a need to clean up the judiciary
2. A commission needs to be set up to appoint Judicial Commissioners (JC) and Judges and this commission be entrusted also with the duty to recommend the confirmation of JCs to be Judges and also the promotion of Judges to the higher courts. This will ensure only those with highest integrity and are hardworking are sitting on the Bench.
3. There is a need to once again vest the judicial powers with the courts
4. Judges should concentrate of disposal of cases rather than attending functions to build net working for promotion. The Bench should only sent a representative to attend formal function rather that having many judges attending the same function. It is important to clear the back log of cases.
DATO’ NGEH KOO HAM
SENIOR EXECUTIVE COUNCILLOR
OF PERAK STATE GOVERNMENT
PERAK STATE ASSEMBLYMAN FOR SITIAWAN
And MEMBER OF PARLIAMENT FOR BERUAS
FORMER STUDENT OF LAW FACULTY
Acknowledgment : Materials taken from Malaysiakini.com, Aliran
Monthly and Wikipedia encylopedia