exclusive Anuar Zainal Abidin, former chief judge of Malaya and former Suhakam commissioner, talks to malaysiakini about creeping Islamisation in the courts, judicial corruption and Cherie Blair in the first of a three-part series.

Malaysiakini: Has the judiciary improved since you left? Its administrative system, its judgments...

Anuar: [Laughs] Susah nak jawab (It's difficult to answer).

But your brother judges such as (former High Court judge) Syed Ahmad Idid and (former Court of Appeal judge) Shaik Daud Ismail had came out openly to...

Yes, but they have not mentioned any individuals. They were very general (in their remarks). First of all, a judge is not appointed unless he has the experience (to hold the position). Secondly, before judges are finally considered, they had to be vetted.

As far as judgments are concerned - I keep abreast because I still receive the Malayan Law Journal - there are good judgments. The only thing is sometimes there is a lot of influence, like the Islamic influence, which I'm not very happy about. I think they should not be influenced by anything but the law. Now, we are waiting for the important case of Lina Joy ... we'll just have to see what's going to happen.

What do you mean by Islamic influence?

Principles (and) interpretations (of the law). They have (ruled in one case) that the issue (raised) was under the jurisdiction of the syariah courts, therefore (the civil courts) have dismissed the case. First of all, they must consider the meaning of jurisdiction. Just because they (syariah courts) decide on the question of apostasy, it doesn't mean that they have final jurisdiction. We can still argue. The law is 50-50. It's man-made.

In the (federal) constitution, we have freedom of religion which means we can choose what religion we want (to practise). Does that apply to only non-Muslims? Does that not apply to Muslims too? I would say that it applies to Muslims. So I can choose (my own religion).

Some people say that once you're a Muslim, you're a Muslim (for life). I don't think that it is so. I am not a very good scholar in Islam but basic common sense tells me that Islam is a very fair religion. If I want to get out, I get out.

In the old days, once you get out, they shoot you and you die - they kill you and that's the end of the matter. Now, they (continue to) punish the chap in Kelantan (who declared that he's no longer a Muslim) but can he get out from Islam? No, he cannot. So, he will forever be punished - which is not Islamic principles.

If you talk about Islamic principles, then they have wrongly and mistakenly believed that a Muslim cannot leave (the religion). So then they would have to do something. But they wouldn't dare because, you see, the only punishment in those days if you leave Islam is death. Here, it is a man-made punishment. They are replacing God's punishment with their own rules and regulation.

That's a dilemma they face because they wouldn't want to...

Kill people? Well, if they want to apply the strict tenet of Islam... I mean the ulama (religious scholars) that I asked confirmed that the punishment (for apostasy) is death. There is no other alternative. Just in our drugs cases in the civil courts, if you traffic drugs, you die. What is clear is this: Those who want to embrace Islam emphasise that once you have (embraced it), this is the rule. I don't know whether they have done that.

Will you argue that the civil courts should have jurisdiction (to hear interfaith disputes)?

I would.

That was the position taken by the judiciary before (former Lord President ) Salleh Abas but things have changed since then.

This is why I said that some judges are influenced by Islamic teachings or feelings, which is more dangerous. If they are influenced by Islamic teachings then they must be knowledgeable. They must really know the subject matter. Otherwise, you don't apply (Islamic teachings in your judgment) because you are sitting as a civil judge. You are not sitting as a syariah court judge. You are not qualified in syariah law. How can you apply according to the syariah law in making your ruling ... especially when you are qualified as a civil (judge)?

There is this story of a magistrate who qualified from an Islamic university. I was the chief judge when I was looking through the records and I noted (his decision in sentencing) offenders who had driven under the influence of alcohol. The non-Malays were fined about RM2,000 while the Muslim offenders were fined around RM4,000. So I asked him (the magistrate) why these offenders were treated differently. He told me, 'You know sir, under the Road Traffic Act the fine is RM2,000 but he is a Muslim, he can't drink. That is why I took him to task.' But I told him, 'You are now in a civil court, forget about your Islamic university.'

This is human failings, which is quite common. There is another one (example) where the offence is speeding. A new magistrate (imposed) if it was a Mini Minor, (the fine) of about RM50, but if it was Mercedes (the fine was more)... they think orang kaya (rich people), well...

Going back to the allegations of corruption among judges which cropped up recently following statements by Chief Justice Ahmad Fairuz Sheikh Abdul Halim and Syed Ahmad. There is a perception that a proper investigation was not done.

The other side claimed that proper investigations have been conducted. What I noticed is that the attorney-general (AG) did not say anything. We all know that the only person who can decide to open or close a case is the AG. No one else can do that ... not the minister or the chief justice ... only the AG can decide or comment.

If the AG decides to open (an investigations), nobody can stop him, if he decides to close, nobody can question. Any other person should not make any statement because they are not in the position to make the statements. The decision solely lies in the hands of the AG.

Those who have commented on the issue - are they speaking on behalf of the AG or on their own behalf? As far as I am concerned, whether the case should be re-opened or not, it is for the AG to say. So you should ask him (the AG) on this. (But then), there is nothing wrong in re-opening the case. How long did it take to close the case at that time?

It was done quite fast. About a month or so...

So, a month (to investigate) a 33-page complaint which contained so many allegations. Do you think that you can finish (investigating) all the allegations with (many personalities involved) within a short time? Common sense tells me that something is incomplete.

So you think that they are trying to sweep everything under the carpet?

I'll be frank here. Yes, I think they are.

If they reopen investigations, many judges and ex-judges would not be sleeping easy at night...

Well, now that the prime minister has made a commitment to eradicate corruption, to be more transparent... so (it's) more the reason why the investigation should be re-opened. There is nothing in law that prevents a re-opening of investigation. Especially now, when we consider the matter as a new complaint. Renewal of an old complaint is a new complaint to me.

When Syed Ahmad made the allegations, you were the chief judge of Malaya?

Yes.

Did you receive a copy of the allegations, which many referred to as a poison-pen letter?

No, I did not. But I heard about it and then read somebody else's copy. I met Syed (later) and he told me that they did not give him any pension. They gave him no alternative. They gave him an ultimatum.

For him to leave or else...

Yes, something like that.

As the chief judge in charge of High Court judges, were you consulted for advice on how the matter should have been dealt with?

No, I was not in the good books, you know.

When you read the allegations, what did you think?

Well as I said earlier, some of the allegations made were never properly answered.

Have you ever confronted any of the judges named in the document?

Never. At that time, I was just about to leave the judicial services. Speaking on the judiciary, there should be a separation of responsibilities. The chief judge is strictly, technically and practically responsible for the High Court judges and the lower courts. Their transfers, discipline, management, administration, fall under the chief judge.

The chief justice should be on the international level like Suffian (Hashim). Intellectually, the Malaysian judiciary is represented by the chief justice. That's where he belongs. He should not worry about the transfer of office boys, leaves. We should put him right at the top there. That is why our country had Suffian, Salleh Abas, (former Lord President) Raja Azlan (Shah)... they didn't worry about administrative things.

When I was a chief registrar, the appointment of magistrates, their replacements and transfers are prepared by me. Once I prepared everything, I went to see Suffian and served the transfer orders. He did not even bother to look (at them). Once he trusts you - you build that trust first - he would give you the leeway to do what you think is best.

That was how it was done. At the most, he asked me to discuss with (SS) Gill who was the chief judge of Malaya at that time. I go to Gill and he would ask me what Suffian said, and I told him that 'he had referred me to you'. (He said,) 'In that case, you carry out the appropriate action.'

Are you saying that the chief justice is now too overly concerned with administrative duties?

Yes, I think so.

What about the suggestion by Ahmad Fairuz that three judges to sit in a trial to avoid possibilities of corruption?

I wish it can be done but I don't think it is practical. There are not enough judges, staff and rooms. The constitution says that we can only have 54 judges. You multiply that by three, we would have to have, like 162 judges. So it's not practical.

You think after what happened to Syed Ahmad, judges fear about going public with allegations of corrupt practice?

Well, serving judges will not be saying anything because that would not be following judges' etiquette. Unlike retired judges, of course.

Why do you think Syed Ahmad had done so?

I don't know but from the interview he had recently given, he said that the issue is boiling in him and that was why.

Was there no avenue for judges like Syed Ahmad to air their grouses then? Maybe to you as the chief judge?

He could have. But I don't know why he didn't. For example in Suffian's time, if there was any letters alleging misconduct of judges, he would call the judge to seek explanation.

Syed Ahmad was called not to explain but to be punished...

Yes, he was punished and that is the sad part.

If the investigation is re-opened, will the current judiciary be affected?

No, I don't think so. Whatever it is, we need to see the outcome first. Even if the allegations are proven true and all those named are asked to resign, how many serving judges are actually involved?

If corrupt judges leave, wouldn't it be good for the judiciary? Wouldn't public confidence be restored in that way?

Yes, I think so. If the investigation is re-opened, I think the public would respect the judiciary. Even more, if the judiciary expresses its willingness to be investigated. That's how I look at it. After all, it is not the entire judiciary but because of one or two black sheep ... so it tells people that it is not afraid of being investigated because it has nothing to hide.

If there are judges who have done wrong, they must be pointed out. We cannot just lie low and say that nothing is happening. It so happens that the allegations originated from a surat layang (poison-pen letter) but now it's no longer a surat layang .

Are you saying that Ahmad Fairuz should welcome the investigation?

No, we don't say welcome. If the authorities say they want to investigate, we say, 'that is your prerogative'. We don't say 'no'.

Things do get political within the judiciary, don't they?

Yes, I remember reading a newspaper report quoting a newly appointed Court of Appeal president who said that we need more Court of Appeal judges. The very next day, (chief justice) Fairuz said we don't need new Court of Appeal judges. This was what I read. What does it mean? The big boss did not like his junior to say anything. As simple as that. Maybe the junior did not discuss the matter. But then, such a minor thing, you don't need to discuss.

That's why I say that the separation of duties of the judiciary should be understood. It is already organised but we are not following it. It's really very simple.

If some of the old corruption cases are reopened, a few judges could be forced to step down...

Well, the prosecutors have to prove it first. If they are wild allegations then the judges would have nothing to worry.

There were allegations made against (former chief justice) Eusoff Chin on his link with lawyer VK Linggam while hearing an appeal involving the lawyer's client. What do you think of that?

I think they had closed it too early. The more they deny the right to investigate, the more curious people become. That would be more dangerous.

But we are talking about the most powerful judge in Malaysia...

Well, the most powerful judge was once thrown out by the government, so why can't the most powerful judge be thrown out by the public, who is more powerful than the government? The public is the one who appoints the government. So indirectly, the public is the one who appoint the judges.

After Salleh Abas, public perception of the judiciary is on the low...

What public perception are we talking about? Are we talking about perception of the cases we are doing or the way the judiciary is being organised? As far as the court works, I think there is nothing to worry about. If we are not happy with a decision, then the allegation is always there ... that you are biased.

But going through the records that the allegations of biasness are not fully justified. A judge in making a decision is always based on the balance of probability. As far as administration is concerned, it is more complex, which is why I say there must be a clear division of work. Each person is responsible for a job.

But there have been criticisms against judgments like Ayer Molek, the Anwar cases...

But these are old cases. There have been no grouses so far on new cases and judgments.

So you think the judiciary is on the mend?

I think so. So far, nothing has cropped up... There has been no high-profile cases except for a few...

There is the Metramac saga.

Well, that is not over yet. We'll have to see the outcome.

Speaking on the case, there was an attempt to bring in English barrister Cherie Blair to be part of the trial representing Fawziah Holdings.

In principle, you will agree to allow a foreign counsel to take up cases here provided that he or she had the special knowledge which we don't have. What is wrong with Dr Cyrus V Das if you compare with Blair. So Blair is not a specialist so much so that we cannot produce one equal to her. On that basis, I think she has no reason to disagree.

Do you think that we should do away with the provision which allows foreign lawyers to take up cases here?

This came up quite recently. Our younger lawyers are still struggling to come up as we have big legal firms monopolising the market. But I don't mind (foreign lawyers) if they are good enough. But when they come, you must be humble enough and watch them. The way they prepare their strategy ... they are not long-winded. We can learn a lot from them.

At least, we widen our horizon and not just katak bawah tempurung (frog under a coconut shell). After all, how many of them come? Just once in a while. Look at the economy of case management ... they are the masters.

Tomorrow: Gopal Sri Ram deserves promotion

Ex-chief judge: Reopen probe on 'poison-pen' letter