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The message, the messenger and the ostrich syndrome

We cannot continue to place our head in the ground and just say that all is good and rosy with the judiciary

Former Justice Hamid Sultan Abu Backer - FILE PHOTO: WWW.KEHAKIMAN.GOV.MY

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When a Court of Appeal judge steps out and makes statements that challenge the judiciary, then such an act calls for serious inspection and introspection within the judiciary. What is the message of the messenger?

The earlier government recommended the setting up of a royal commission of inquiry, which seemed the most honourable, transparent and judicious manner of handling the serious issues highlighted by the distinguished judge.

Some judges then seemed to have expressed their reservations. This then led to a change in process. This could perhaps include some judges who were uncomfortable with issues stated in the affidavit!  

Well-versed in the law, our appeals court judge has written books on civil procedure, criminal procedure, evidence, conveyancing, Islamic banking and domestic arbitration. Students and several institutions of higher learning in Malaysia use his books.

For over six years, he was also an active member of the Malaysian Bar. He holds a doctorate and has lectured at several universities.

So, we are not talking about a lightweight but one well-versed in the law and for whom his oath of office holds personal meaning and conviction. I wonder how many of his seniors are equally well educated.

Yes, he believes in the supremacy of the Constitution, which offers a paradigm, I believe, to meet the challenging legal scenarios of today.

The Human Rights Commission of Malaysia (Suhakam) has urged the government to set up a royal commission of inquiry to look into the essence of the issues that the good judge has raised. Likewise, calls have also come from the Bar Council and other NGOs like C4 Center and the Malaysian Academics Movement (Gerak).

Only a reform-minded government will actively follow through such responses. The present government does not seem to have the credibility nor the will to make reforms as their performance over the last months is enough of a measure of their capabilities.

The judge’s significant achievements should be noted. This raises a key question as to why, at the end of his career, he would like to have his reputation tarnished. Things must have come to a boil, and this must have challenged his conscience to take a stand.

This is not to say that the judiciary in Malaysia has an excellent reputation. The system is only as good as the people who represent it. An earlier judge some years ago had to resign following similar frustrations and was unable to bring the desired changes.

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Those of us who have been following developments in the Malaysian judiciary since the 1988 events surrounding the late and respected Tun Salleh Abas will recall stories and scandals ranging from one ‘Lingam’ to some top judges and holidays in New Zealand!

It must have taken time and a lot of thought before the judge wrote the affidavit. He must have been so frustrated and, having considered all possibilities, acted as he did.

The Judges’ Ethics Committee’s recent move to suspend him is perceived as a way to circumvent the highlighting of the issues of concern that he raised and for which he is ready to give details only at a hearing of a royal commission. They did everything to prevent him from getting a hearing, and does this not show bad faith?

Had they done so after all the issues were raised and he was given the right to be heard in court, then this would have enhanced the standing of any decision taken by the ethics committee.

Some may hope the suspension will deter him from further action. It is a sorry reflection that the judiciary did not allow the substantive legal issues he raised from being adjudicated. Yes, for many judges this would be a hot potato, and they would rather steer away from being shown up by their stand.

This is what interests ordinary people concerned about the Judiciary. This is about our judiciary, which is supposed to preserve, protect and defend our Constitution.

Even the right to free speech seems to be denied to a judge! Give him precedence as he is from within the judiciary – unless there is something to hide. Hold him accountable to the standards required.

The several issues that the good judge raised are serious and if these are not tackled, then we can forget about any reform in the judiciary. Does the judiciary support fairness, transparency and accountability?

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The recent confession by a magistrate who was caught for corruption highlights interesting facts. He talks about a corrupt system in place and that he just inherited when he moved to Kelantan. He talks about middle persons between him and the crooks.

From earning about RM1,500 under Grade L41, he allegedly earned RM10,000 per case. He was eventually caught in a drug-related case under Section 6 of the Dangerous Drugs Act. He must have made a handsome sum altogether during his tenure, earning the reputation as a corrupt magistrate.

He was caught when the victim turned and became a whistleblower and exposed the entire syndicate, including police officers. This reveals how powerful these syndicates are and how connected they are within the system.

This is a case from Kelantan, and I wonder how such syndicates operate in other states. Does this not highlight the rot within the system? Without the whistleblower, this would never have been uncovered.

Justice Hamid Sultan is a whistleblower and should be accorded protection under the WhistleBlowers Protection Act. But he was not seen as one, in this context. With issues at such a senior level and involving people of high standing, the only resolve was to institute a royal commission of inquiry.

This would have been the ideal opportunity for the judiciary to call Justice Hamid Sultan’s bluff, if any. The very fact that they have gone through the Ethics Committee to suspend him in effect means that they have vetoed his cause and killed his message.

The message and the messenger have become a victim of the ostrich syndrome. If the judiciary is serious about dealing with issues at the highest levels, then they should be open to being evaluated and held to account. They will never succeed without a whistleblower. The affidavit has been in the public space.

No judge would want to squeal on his fellow judges, but if the conduct and direction of senior judges affects the independence of a judge and his decisions, then this raises serious issues of conscience. Here is an opportunity for us to effect change and strengthen our judiciary.

Justice Hamid Sultan, the man, his credentials, experience and clear thinking, is so critical for our judiciary. Serious groups within the country have called for action, and many have expressed disappointment regarding the decision of the Judges Ethics Committee.

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We do so not to disparage the judiciary, but because the judiciary is so critical to the balance of power. Justice has to be fair, and fairness has to be seen by people at large, nationally and internationally.

All human beings are susceptible to temptations of titles, power, privileges, money, wealth and its associated issues related to drink and sex. Whether you are a pauper or a prince, of any colour, race or tribe, such vulnerabilities corrode personal convictions and values. Soon justice is rationalised like Pas leader Hadi Awang who now advocates that corruption is outside the ‘hudud’ system.

That is why we need checks and balances to ensure that our system works and individuals who helm our judiciary are men and women of character. The executive remains a powerful branch of government, and if their activities remain unchecked, they can corrupt any system of checks and balances.

With titles, patronage, money, retirement benefits, appointments to company boards, the executive remains a branch of government that can promote issues relating to conflict of interest. It is their quid pro quo that affects the legislature and the judiciary, and this then challenges everyone.

Consider our infected civil service with the cases now against a former secretary-general of the Ministry of Finance, the embarrassment to the former chief secretary, not to mention others silent and complicit under the Najib Razak administration.

We cannot continue to place our head in the ground and just say that all is good and rosy. This is not so, and we should admire and respect the courage of people like Justice Hamid Sultan who stand up, speak out and have the guts to challenge the system.

Only those with a sense of moral courage can do so. How many within the establishment understand what moral courage really means? Do such individuals have a voice in the Malaysia of today or are we so far gone that good people are reduced to becoming just good for nothing! Hopefully not.

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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K Haridas, an Aliran executive committee member, is the current honorary secretary of the Business Ethics Institute of Malaysia, chairperson of the Association For The Promotion Of Higher Education In Malaysia and chairperson of the Malaysian chapter of Initiatives of Change International.
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loyal malaysian
loyal malaysian
9 Feb 2021 7.01am

At this point in time, I can only wish Justice Hamid all the best – that he is holding up as well as can be granted the circumstances,
The judiciary is supposed to be a separate branch of the govt., that the Chief Justice has chosen to silence the brave Justice tells more than she may want divulged.

Thank you, Aliran admin. for the input about the corrupt Kelantan magistrate. Yes, that is only one case – isn’t it? If we let our thinking expand to the length and breadth of our country, the scenario is frightening, isn’t it?

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