About time to reset our judiciary
Sunday, 17 Feb 2019
by k. parkaran
FOR most, the death of democracy means men with guns marching down the streets while the military chiefs announce that they are now in charge with the might at their disposal.
Military coups toppled powerful leaders like Egyptian president Mohamed Morsi in 2013 and Thai prime minister Yingluck Shinawatra in 2014.
In cases like these, democracy normally ends in spectacular fashion. Tanks roll in the streets, the heads of government are imprisoned or they themselves go into exile. The constitution is suspended or scrapped and the military heads are in absolute control.
There is another way of breaking a democracy, not at the hands of generals but of elected leaders who subvert the very process that brought them to power. Sounds familiar?
Has Malaysia descended into this state? Many would agree with me that it has, to a certain extent. It started in 1998 with the May Day judicial crisis that saw the sacking of Tun Salleh Abas, the then Lord President, by a tribunal set up by Prime Minister Tun Dr Mahathir Mohamad himself.
The circumstances were very controversial indeed and many believe this started the destruction of the independence of the judiciary which in some ways still exist.
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Haniff Khatri
We had an inkling of judicial interference when prominent lawyer Haniff Khatri dropped a bombshell last August when he told the media about a serving judge telling him of how a group of top judges were indulging in corrupt practices, working in cahoots with some government leaders and the private sector to defraud the government.
Besides this, he claimed there was high-level interference in certain prominent criminal cases involving opposition leaders before the May 9 general election.
Obviously, the judge waited for an opportune time to whistleblow on these destroyers of democracy because he may have felt safe doing it after the fall of the Najib regime, which saw an unprecedented extension of service for the top two judges early last year after their mandatory retirement age.
Also knowing that Haniff had represented Dr Mahathir a few times in court, the judge must have not only felt safe but also had faith in the new government to finally restore faith in our Palace of Justice.
To jog everyone’s memory, Pakatan Harapan had during its GE14 campaign been harping on bringing back the rule of law which it claimed has been destroyed by the previous government, ironically some of which happened during Dr Mahathir’s first reign.
While Haniff started the spark, the late Karpal Singh’s daughter Sangeet Kaur Deo lighted it further when she filed an affidavit to declare that the Chief Justice had failed to defend the integrity and credibility of the judiciary over two alleged incidents of judicial interference.
One of it involved the decision on her father’s Sedition Act case which made her an interested party.
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Dr. Hamid Sultan
Finally, the man in the centre of the storm, sitting Court of Appeal judge Datuk Dr Hamid Sultan Abu Backer came out into the open and filed an affidavit in support of Sangeet. This is probably the first time that a sitting judge had openly declared corruption and political interference in the judiciary in Malaysia.
If anyone has any doubts about his motive, we should give the benefit to Hamid Sultan as he chose to do it while in office and not after his retirement. This in itself should prompt the government to start a high-level probe.
Among others, the judge claimed that:
> Certain members of the judiciary have been aiding private parties to knowingly defraud the government through political nominees. He has named some matters involved here;
> A particular top judge whom he referred to as “ARLC” had reprimanded him for a judgment in the famous Indra Gandhi conversion matter; and
> That he was told that there was serious political interference in the sodomy trial of Datuk Seri Anwar Ibrahim and Karpal’s sedition case which resulted in dubious decisions.
Sangeet lodged a police report and Haniff immediately wrote a letter to Chief Justice Tan Sri Richard Malanjum requesting for a taskforce to be set up to investigate these serious claims.
Richard responded they were probing the claims.
Hanif said these allegations were too serious to be taken lightly as it will make not only Malaysians but the whole world question the way the country is run.
In his affidavit-in-reply released late Friday, Richard said the former top judge accused of judicial interference had been spared from action as he was retired.
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Sangeet Kaur Deo
“The top judge concerned had retired, hence no action could be taken under the Judges Code of Ethics 2009 read with the Judges Ethics Committee Act 2010,” the affidavit stated.
But obviously this will not satisfy Malaysians who are demanding nothing less than action against the judge who is alleged to have perverted the cause of justice. His retirement, forced or otherwise, does not and should not absolve him of his actions which were criminal in nature.
If the government does not take action against top civil servants or politicians just because they have retired or crossed over to the ruling party, nothing will ever change.
Obviously, Malaysians voted for a new leadership to clean up every aspect of running the country but this does not augur well for PH.
Besides, Hamid Sultan has specifically said that he knew of other judges who had indulged in this sham by abetting the top judge before his retirement.
The judiciary is the last bastion of hope for the average Malaysian to check excesses by the legislative or powerful individuals and something must be done without any delay.
Haniff suggested that only a Royal Commission of Inquiry (RCI) would be able to get to the root of the matter without fear or favour but was of the opinion that an independent taskforce be set up first to look into the claims.
He said the most urgent thing for the government to do first was to provide adequate protection to Hamid Sultan as his brave action was to save the nation, adding that it was the moral duty of the police to do this.
“Here, I implore Law Minister Liew Vui Keong and Attorney General Tommy Thomas to look into this urgently as it is within their jurisdiction,” he said.
If the former top judge or any others are indeed found by an RCI to have compromised the judiciary, there could be some serious consequences in the form of application for retrials on the cases they had decided.
It may open a floodgate but if this is the way to sterilise our infected judiciary, so be it. We have to go through this motion. It will surely be worth it.
To be honest, we have been living in the shadows of a tainted judiciary for more than two decades. We have heard of senior lawyers fixing judges for certain cases and top judges compromising their high offices with certain actions.
We have lived for far too long with these doubts with no access to evidence. Hamid Sultan has stepped forward risking his career, life and limb. Malaysians will surely be behind him.
Here now is a chance for Dr Mahathir to put things right once and for all. Returning the lost honour and pride to our judiciary by removing all corrupt elements could be a great start for him.
Nothing less than an RCI, irrespective of its findings, will satisfy Malaysians.
And if the claims are true, Malaysians should salute Hamid Sultan, Haniff and Sangeet for standing up to be counted.
Our judicial and legal services need a reset. Over to you, Tun.
K. Parkaran is a former journalist with The Star and Aljazeera International. He is currently freelancing and can be reached at parkarank@gmail.com
Read more at https://www.thestar.com.my/news/nation/2019/02/17/about-time-to-reset-our-judiciary-if-the-government-does-not-take-action-against-top-civil-servants/#TpouYRqiOMYDxZJq.99
