Judicial impropriety

Jan Michael


LETTER | The Malaysian judiciary is certainly on trial for the purported impropriety lately. It is very disturbing news with pervasive implications. Court of Appeal judge Hamid Sultan Abu Backer's bare-all affidavit is explosive. 

It is a damning expose which claimed that the court judgments were insidiously manipulated to a predetermined outcome and the corrupt politicians and their nominees milked the government’s taxpayers’ money using the doubtful legal process to give deceitful (and dreaded) appearance of legitimacy and impeccability.

Malaysians have been long aware or suspected of the threadbare erosion of the justice system. They were helpless to do anything sensible to repair it. The demons were destructive with the instigation of the political masters.

To thwart the marauding demons in the judiciary required intimate insider knowledge. It also has to be traded with outsiders for exposure and independent scrutiny.  

The fevered insiders who occupied the office of the judges had the vantage point. But they were not interested in trading their trade secrets to avoid reprisals of the dreaded politicians and fearful legal rules and acts.

In such situations, adherence to judicial waywardness is a norm than an exception. Even to wage a cold war there is no space for desire.

Thus, given the tough atmosphere, the judges were more interested in complying with the powerful diktats of the corrupt system than to institute a strong call for justice. Thus, justice suffered and took a severe beating in the Palace of Justice.

The Palace of Justice is a misnomer with the incriminating expose. Palace of Justice - as the ultimate arbiter of justice - could have dispensed injustices knowingly and indiscriminately. As a result, the most winning-case litigants lost and the losers won in the compromised system. 

The unfortunate litigants suffered and licked the wounds in silence and self-pity.

Two notable judges had seemingly challenged the adversity. They set off the fireworks. Under the new political set-up with the more liberated media and unshackled people, the fireworks glow brightly. In the post-GE14, the newly liberated society, everybody wants the judiciary to be made fully accountable.

The former judge, the respectable Syed Ahmad Idid, is the front runner and trailblazer in exposing permeating rot in the judiciary. He fought - and lost heavily - because of the strong political undercurrent and judicial improprieties. He sacrificed his future and career. But, he had the moral courage, honesty, professionalism and piety steadfastly. He is revered today by all Malaysians for this rare gem of a quality.

Like Syed Idid, Hamid did the right thing. He too does not want the judiciary to degenerate into a farcical legal system and become a moniker of a distrusted system. Hamid took upon himself to correct the rotting, or rotten, Judiciary.

He has set the barometer correctly in the Sangeet Kaur Deo’s affidavit with surgical precision. A glimpse of his affidavit exposes seems to show that he is engaged in a real hot war – more open. The affidavit shows that the legal border for decency and imprudence had receded. The unfortunate litigants would have lost millions or billions and experienced indeterminable emotional sufferings in the badly manipulated judicial system.

The judges resorted - or could have resorted - to the brute and crude judgments without legal basis in the case fixing. The law books and legal rules and regulations were unheeded. Their usefulness, in fact, has gone hidden.

In the supposedly shabby system, the higher courts’ rot had – or could have had - also infected the lower courts. This is a natural process as lower courts religiously follow the precedents in the higher courts. So, the rot in the judiciary is quite systemic and moved upwards and downwards in the free flow situations.

The disturbing judgments as set out by Hamid were ubiquitous. The society had resigned quietly to the prevailing circumstances. For the public to challenge the judiciary or the judgments is prohibitive and futile because of the huge legal costs and the predetermined outcome.

Unpleasant experience

I had an unpleasant experience at a lower court. It was a small claim matter. The size of the claim is immaterial. This experience could be enlightening and exciting. Even the laymen are not immune from the courts’ calamity.

A small claim court is supposedly made easy for the public to seek justice. However, in my case, it was conducted in an incompatible manner. The actual proceedings had lost the elements of a small claim court. It took on the strict discipline prevalent in the higher courts. To further complicate matters, the standards set for the different litigating parties seemed to have differed.

The standard set for the plaintiff was high. On the other hand, the defendants, because of the close family connection with the lawyers practising in that courts and had known to the magistrate, were given unacceptable leeway and attention by the presiding magistrate. This is contrary to the rules of the courts, but sanctioned.

The legal maxim is that “justice must not only be done, but must also be seen to be done”. This has long been forgotten. The legal edifice is seemed to have been debased. 

While the court proceedings were in progress, three practising lawyers present in the court had openly demonstrated how to mock the small claim court rules under the watchful eyes of the magistrate. Among them, one with an honorific title of a "Datuk".

In the first incident, a lawyer was seated in the front row of the gallery. She quietly walked back and forth, not only to pass small pieces of notes but was also to whisper into the defendant's ear. I had requested the magistrate to ask the lawyer to leave the courtroom. This was the appropriate approach in such circumstances.

Instead, she merely reprimanded and said: "This is a public area". Reprimanding is not a proper remedy. In fact, such incidents should not have taken place in court in the first place. These breaches put the ethics of the legal profession and court practices under the microscope for observation of tainting.

In the second incident, another lawyer from the gallery was giving the sign and body language and facial expression to the questions posed to the witness in the dock for almost 30 minutes. The magistrate’s connivance and concurrence of such acts put the plaintiff party at a serious disadvantage and disappointment. 

And, the court’s outcome was equally disappointing as it had all the elements of case fixing or predetermined judgement. I had stated these incidents in my submission. I also wrote to the magistrate on the said breaches and stated that I would make a formal complaint to the Attorney-General's Chambers, which I did. 

The complaint was later redirected to the ketua pendaftar kehakiman (senior registrar of court). From the reply given by the ketua pendaftar to my complaint, he had shown himself to be imprudent and aloof. He had downplayed the seriousness of my complaint. He claimed to have viewed and relied on the court’s video recordings. His conclusion thus was unassailable.

This is a clever ruse. The plaintiff had no access to the video. His hands were tied. The chief registrar’s findings could not be corroborated independently. The chief registrar’s strength lied supposedly on the unformulated and imaginary reply. He could have covered-up or casually tampered the evidence based on his likes or dislikes.

The innocent public falls victim to these practices. The defaulting officers should be made accountable for their deeds or misdeeds, preferably with a charge for contempt of court. Nothing transpired since the lodgement of my subsequent complaint. Perhaps, the registrar did not want to rock the boat with a reply.

In the layered and protected judicial system, the lower courts breaches were protected by the higher courts and higher courts were protected by the political patronage. Thus, justice was brutally defiled by the unjust judiciary system.

I hope the relevant authorities will be able to look into the serious aberrations besieging the judiciary. In the free failing judicial system, no court seems to have been spared the rot. Judge Hamid is perfectly correct and wise in calling for the royal commission of inquiry (RCI) to investigate the judiciary’s failings and failures impartially.

The judicial improprieties seem to be real.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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