YOURSAY | ‘These judges, if they are guilty, know and want the issue to die with them...’
Gerard Lourdesamy: Former Sabah chief minister Yong Teck Lee must have been poorly advised. There already is a precedent for this.
The Royal Commission of Inquiry (RCI) into the VK Lingam Video Clip was an inquiry into judicial misconduct. The Federal Court in that case ruled that the appointment, findings and recommendations of the RCI were not justiciable and incapable of being subjected to judicial review.
An RCI derives its powers from the Commission of Inquiry Act 1950. It is appointed by the king on the advice of the PM. The government is not bound by the recommendations of an RCI. Therefore, the RCI has no decision-making powers that can be reviewed by the courts.
An RCI is inquisitorial and advisory in nature. The doctrine of separation of powers is not violated by an RCI for the simple reason that any finding of judicial misconduct by serving judges is still subject to the PM advising the king to appoint an impeachment tribunal against the judges concerned under Article 125 of the Constitution to remove them from office with or without pension and other benefits. So the RCI will have no direct role to play in the impeachment proceedings under Article 125.
The conflict of interest argument is a non-starter for two reasons. Firstly, the appointment of the RCI is non-justiciable and secondly, the appointment is done by the king on the advice of the PM and not the cabinet.
Therefore, whether or not the issue of the appointment of the RCI was deliberated in cabinet is not relevant. The cabinet has no effective role to play in the appointment of the RCI. In essence, it is the prerogative of the PM.
Lastly, the appointment of the RCI being a high policy decision of the executive cannot be amenable to judicial review or oversight by the courts.
The attorney-general (AG) is right to apply to strike out Yong's application because it has no reasonable cause of action, is frivolous, vexatious and an abuse of process.
Anonymous 9916: Yong, we only see this as an attempt to stop real justice from taking its course.
We don't know what vested interest you have but there must be something happening behind the scenes, isn't there? Or just that some of the highly-placed judges put you up to it because they have things to hide?
These judges, if they are guilty, know and want the issue to die with them and deny the public justice. We say no to your legal challenge and it truly is frivolous.
Oxymoronictendencies: Something is definitely “going on”. I doubt an internal review will do more than result in the judiciary “stonewalling” an internal enquiry.
An RCI may, of course, end with the same result, however it is “outside” the judiciary and has more powers to compel testimony and likely to have a broader remit.
Therefore, we can expect a more meaningful and revealing result. It is likely that some (maybe many) in the judiciary will be fearful of an RCI, as there can be little doubt that in certain matters the judiciary was beholden to the executive when Najib was PM, the extent of which is more likely to be revealed by an RCI than an “internal enquiry”.
So let’s dispose of all the delaying tactics and get on with the RCI.
Kim Quek: It’s been four months since the PM announced the agreement to set up the RCI, and the terms of reference has also been submitted by the Attorney-General’s Chambers to the cabinet, and yet the PM still says he has no idea when the RCI will be set up.
So, what’s holding the Pakatan Harapan coalition up? Forgotten about judicial reforms? Or has the entire cabinet become lame duck, waiting for the decision of one man who happens to have no appetite for such reforms?
Redmann: Mr Prime Minister, obey and comply with the supreme law of the land - the Federal Constitution. There is no point relying on surprises, your gut instincts and opinions, suggestions and advice from former judges. lawyers or academics.
The Constitution has made provisions for such special commissions of inquiry. The Constitution is there to prevent creative law-making and judicial interpretations when the judiciary is tasked with explaining and applying the law. Interpreting the law is hazardous.
The judiciary must never say its task is to interpret the law. It is like feeding Pavlov's dogs for the uninitiated and apple-polishers who wish to curry favour, a favourite Malaysian past-time and habit which MACC must keep a tab on all, all the time.
And downsize the civil service. Let's get real and practical, Mr Prime Minister, how much more do you wish to dish out to the unmeritorious who are so used now to getting things for free without much work except for putting their hands out always?
You want a New Malaysia, do something new however unpopular it is. The more unpopular it is, the more right and righteous it becomes.
Anonymous_1543475877: I think former Federal Court judge Sri Ram Gopal is right.
An RCI on the judiciary? Who will be selected to sit on the panel? Who will be the witnesses? How can you test the veracity of any witness if he chooses to vilify another judge out of jealousy? Will the hearing be public?
You can see from public comments on any subject on social media how confused many people can be. Sri Ram makes a complete proposal - how to investigate, who to report to and how to punish.
Please advise Mahathir. There are some things that have to be kept private.
Gerard Lourdesamy: The rakyat wants an RCI that is open, independent, impartial and objective. How else can public confidence be restored in the judiciary?
An internal inquiry will be seen as a cover-up. Those who have violated their oath of office or have indulged in corruption and abuse of power together with their aiders and abettors from within and without the judiciary and legal profession need to be investigated and punished if found guilty.
That is where an RCI under the Commission of Inquiry Act 1950 will be effective with its extensive powers to summon witnesses and documents, apart from taking evidence in camera.
The doctrine of separation of powers is not violated by the formation of the RCI because sitting judges must still be subjected to Article 125 of the constitution for impeachment if the RCI makes a finding against them. After all, judges are appointed on the nomination of the executive.
Even that may be perceived to violate the doctrine of separation of powers. Our constitution provides for a system of parliamentary governance based on the Westminster system. Therefore, the doctrine of separation of powers is not as evident in our system of government as opposed to in the US, for example.
I would advise Mahathir and the cabinet to stay their course on the RCI. The dissenting voices are persons with self-interest in the matter. Why must corruption and abuse of power involving judges and lawyers be treated differently? The rule of law applies to all.
Those willing to compromise on their integrity and independence in the judiciary for reward, both financial and professional, must be held accountable. That is what the public demands.
The RCI will also vindicate the majority of clean, competent and independent judges who have remained true to their oath of office and persevered to uphold and defend the constitution and the rule of law despite unlawful interference from their superiors, politicians, lawyers and businessmen.
Resorting to contempt powers or internal inquiries is not going to restore public confidence and trust in the judiciary.
Annonnymous 080: Mahathir, don’t be fooled by lawyers. What we want is an RCI, full stop!
Anonymous_1e23ccf0: I can’t help be amazed every time someone comes up with this kind of statement that the legal professionals are somehow trying to pull the wool over all the rest of the population.
It may help these people if they understand that there are legal rules and processes that one needs to take cognisance of in arriving at the correct and if I may say legally correct process to handle this purported malfeasance by our judges.
Any throwing of caution to the wind will upset longstanding conventions and doctrines that keep our rule of law on track and humming for the good of all and in this respect, Gopal Sri Ram is correct in pointing out the nuances that are in play and Gerard Lourdesamy has challenged the former's assertion with his own argument why it is okay to go for the RCI.
This, my friend, is the way to go, not because the layman knows that the judges under scrutiny are in all probability guilty.
When one does know enough, be humble and learn so that one can be a better-informed citizen and not a member of a lynch mob.
The above is a selection of comments posted by Malaysiakini subscribers. Only paying subscribers can post comments. Over the past one year, Malaysiakinians have posted over 100,000 comments. Join the Malaysiakini community and help set the news agenda. Subscribe now.
These comments are compiled to reflect the views of Malaysiakini subscribers on matters of public interest. Malaysiakini does not intend to represent these views as fact.