Dato Seri Speaker,
The Bill’s Objective: another Futile Exercise
I thank Dato Seri Speaker for giving me the opportunity to debate the Judges Ethics Committee Bill 2008.This Bill, like the Judicial Appointment Commission Act, the Malaysian Anti-Corruption Commission Act and the Enforcement Agencies Integrity Commission Act, will not achieve its purpose of regaining public trust and confidence in the nation’s institutions. This is because the Bill does not address the real causes of the problems. The Judiciary’s decline is due to executive interference and corruption. We do not need more laws to improve the judiciary. We have sufficient laws to punish corrupt and errant judges. We only do not have sufficient political will to do so. Without the courage and conviction to do the right thing this Bill will be another exercise in futility.
The Real Cause of Judical Decline: Executive Interference
The Malaysian judiciary had long enjoyed the highest respect and esteem in the common law countries and the world. However, after the infamous sacking of the Lord President, Tun Salleh Abbas in 1988, the judiciary became an adjunct of the executive. The Courts instead of guarding the citizen’s liberties from the executive’s abuses became the hand maiden of the executive. Instead of acting as a check against the Prime Minister’s excesses, the Courts became the Prime Minister’s hatchet man. The Rule Law was replaced by the Rule of Man. The Courts became an instrument to perpetuate the Rule of One Man.
The list of examples of political interference in the judiciary is long and well documented. The judiciary crisis is often said to have started with the sacking of Tun Salleh Abbas and the suspension of the 5 Federal Court Judges culminating in the sacking of Tan Sri Wan Suleiman and Datuk George Edward Seah. The Government has recently given them an ex-gratia payment. This may be fair compensation for their personal suffering. It corrected the wrong done to these judges personally, but it did nothing to correct the wrong done to the judicial institution.
The real reason for sacking the Lord President was not due to how government cases were to be decided, the real reason was how the UMNO Election case was to be decided. The Court ordered the original UMNO dissolved even though the members did not ask for this. The members wanted a fresh election because the earlier election was tainted by phantom voters. The sacking of the judges was to enable a party president without majority support to retain power;
This was repeated in the disqualification case of YB Wee Choo Keong, now MP for Wangsa Maju. The BN candidate became the member of parliament for Bukit Bintang without majority support of the Bukit Bintang voters. The Court and not the voters appointed the BN candidate as the MP;
The most disgraceful and wicked misuse of the Courts was in the trial and conviction of Dato Seri Anwar Ibrahim, YB Permatang Pau, on the trumped up charges of sodomy. It was a conspiracy to assassinate the political career of YB Permatang Pauh. It was to retain the UMNO President in power and this time he did not want to wait for party elections. It was a desperate plot by a desperate president to cling to power at all costs. Dato Seri Anwar Ibrahim was incarcerated for 6 years based on a confession extracted through beatings and torture. A confession extracted for committing sodomy in an apartment that was not even in existence at the time of the incident. It was so important to blow up Dato Seri Anwar’s political career for the audacity to challenge the incumbent that it did not matter the independence of the judiciary, justice and the rule of law were blown up with it. Everything else was as put by the then High Court Judge repeatedly during the trial; “Irrelevant, irrelevant, irrelevant”. In the process those that defended the rule of law, Dato Seri Anwar Ibrahim’s lawyers, Zainur Zakaria, Tommy Thomas and Manjit Singh were charged with contempt of court.
Although Tun Dr Mahathir has retired, the misuse of the Courts has not. The same cast of characters using the same old script are re-enacting the plot in the new sodomy charges against YB Permatang Pauh. The same old plot is being used against all who challenge the ruling party. Raja Petra and Karpal Singh, YB Tasik Gelugor, are charged for sedition. YB Batu have been convicted for biting a policeman. We have the court decisions in the Perak Power Grab, that are so blatantly wrong that retired Court of Appeal judge, NH Chan, denounced the judges for bringing the courts into disrepute. NH Chan said those judges deserved to be sacked under the 1994 Code of Conduct for Judges. Nothing, however, has happened to these judges. We already have existing laws to deal with the problem, but they have not been used. Therefore it is not the lack of laws but the lack of will that is the cause of the problem.
It is for these reasons that the people and the world have lost trust and confidence in the Malaysian judiciary. Judges are accused of being biased. Judges have delayed or did not deliver their decisions long after the trial. In 2000, The International Bar Association (“IBA”), the Center for the Independence of Judges and Lawyers of the International Commission of Jurists (CIJL”), the Commonwealth Lawyers Association (“CLA”), The Union of Internationale des Avocates (“UIA’) sent a joint mission to Malaysia to investigate the state of the country’s judiciary. Their findings are published in a report entitled “Justice in Jeopardy: Malaysia 2000” They reported that the executive in Malaysia had wide powers and have acted without regard to the fundamental principles expected in a free and democratic society complying with the rule of law.
The situation has gone from bad to worse until His Royal Highness the Sultan of Perak, Sultan Azlan Shah has this to say:
“Concerns have been expressed that some judges were not writing judgments or that there were long delays in obtaining decisions or hearing dates in certain instances. Further, the conduct of certain judges was being questioned in public… Whether these allegations are true, is not for me to say. However, having been a member of the judiciary for many years, it grieves me when I hear of such allegations. Since independence, the early judges have always cherished the notion of an independent judiciary and had built the judiciary as a strong and independent organ of government. The public had full confidence in the judiciary and accepted any decision then made without question. Unfortunately, the same does not appear to be the case in recent years.”
Boot Camp for Judges
The Sultan of Perak’s concerns of the lack of judicial independence are not without cause, High Court Judge, Ian Chin, during the trial of an Election Petition, revealed that the Prime Minister had sent the judges to a “Boot Camp” run by the Biro Tata Negara. It was a course designed to ensure the Judges become more sensitive to the Executive’s position. Those who refused were threatened with dismissal or transfer to remote locations. We have recently been informed that the BTN courses are nothing more than UMNO propaganda designed to further UMNO’s interest. Therefore I ask the Honourable Minister to answer whether judges have been sent to BTN courses and if so, whether this will stop.
Constitutional Amendments to Article 121
The Executive’s clipping of the judicial wings began with the amendment to Article 121 of the Federal Constitution. Prior to the amendment in 1988, Article 121 vested the judicial power in the Courts. After the amendments in 1988 and 1994, the words “judicial powers “ were deleted and the article merely provides for the setting up of the High Courts, the Court of Appeal and the Federal Court. The amendments removed the exclusive vesting of the judicial powers in the Courts and prevented the Courts from striking down legislation or executive decisions on the basis of judicial power and justice. After the amendment the Courts ceased to be the fountain of justice. The Courts have to apply the statutes according to demands of the legislature and the executive and not the demand of justice. Hence the Federal Court has changed its name from Istana Keadilan to Istana Kehakiman.
I request the Honourable Minister to answer why Article 121 should not be re-amended to return the judicial powers to the Courts and return the Courts to the position before the 1988 and 1994 amendments. I also request the Honourable Minister to remove the Prime Minister’s powers to appoint the judges under Article 122B and also to remove the Prime Minister’s powers to sack the judges under Article 125. It is this power of hiring and firing that allows the Prime Minister to influence and threaten the judges. The hiring and firing should be made by an independent panel. Only by having such amendments can we hope to revive the Judiciary. Only by re-amending Article 121 to re-vest “judicial power” in the Courts can we restore the Judiciary to its rightful place as the third pillar of government. We must revive and return the Courts to its rightful role as a check and balance on the other two pillars of government, the executive and legislature. Only then can we truly say that there is a Separation of Powers. Only by such an amendment can we give substance to the principle of “Separation of Powers”.
The judicial system deteriorated from executive influence to influence by the rich and famous. Businessmen found out that our judges were the best that money can buy.
In Ayer Molek Rubber Co vs Insas Bhd, the businessman obtained an ex-parte injunction order to compel the company to transfer and register certain shares without complying with the company’s procedure thereby allowing the businessman to gain control of the company. “Ex-parte” means one side. The judge granted the order on hearing only one side. In such a case the order is only made to preserve the status quo but this order, on the contrary, altered the status quo. It required the company to transfer the shares within 48 hours. It is also the established practice that the other side, in this case the company, is entitled to apply to set aside the ex-parte order. However, the judge declined to hear the setting aside application until after the time for the company to register the transfer had passed. The effect of the judge’s conduct was to deprive the company of its right to defend the case. It was a misuse of judicial power. The politicians in the political cases were able to gain control of the government without complying with the procedure for elections. Now, businessmen were able to gain control of companies without complying with the company’s procedures. Both were due to the misuse of the courts. This prompted NH Chan to begin his judgment in the Court of Appeal by saying that “Something is rotten in the House of Denmark” [the Courts were in Denmark House at that time]
The courts thereafter descended down the slippery slope. The Courts awarded Tan Sri Vincent Tan multi-million ringgit damages for defamation. Lawyers who opposed were slapped for contempt of court. These judges issued injunctions to stop the Bar Council from holding EGMs to discuss the situation. The lawyer that could not lose was none other than VK Lingam. How all this was achieved were exposed in the video tape in the fixing of the appointment of the nation’s highest judicial positions by VK Lingam. The Royal Commission of Inquiry Report on the VK Lingam Video in paragraph 20.2 stated that:-
“ The misbehavior uncovered in the Enquiry ranges from acts and omissions which were merely morally objectionable, to acts which fell outside the norms of professional ethical standards as well as to acts which constitute crimes punishable under the laws of Malaysia.”
However, despite these clear findings by the Royal Commission, the Attorney General has announced that the persons mentioned in the Royal Commission’s Report will not be charged. There is no political will to act.
However, the most outrageous and shameful case is that of Adorna Properties vs Boonsom Boonyanit. The Federal Court held that a transfer of a property by a forged instrument of transfer was valid and the registered owner loss her property. This decision was clearly wrong. It is against the established principle of laws under the Torrens system. The decision means that in Malaysia, the highest court of our land has held that crime does pay. A thief can obtain a valid transfer even though it was obtained by forgery or fraud. The decision has been derided by professors of law and legal practitioners from all countries. It is the most shameful episode of our legal history.
I ask the Honourable Minister to amend the National Land Code to reverse the decision of Adorna Property. It is urgent. We should not allow such an unjust decision to remain. Such an unjust decision should not be allowed to remain as a binding precedent on the court of appeal and high courts.
High Judicial Office
The problems faced by the judiciary since 1988 concerns the highest judicial office in the land. The problem is not concerning the misbehavior of one or two high court judges. It is about systemic corruption and abuse caused by the office of the chief executive interfering in the office of the chief judge. It is about lawyers, businessmen and ministers fixing the appointment and promotion of judges. It is about their influence to determine court decisions not according to law or justice but according to the dictates of money and influence. The lower ranked judges are forced to make decisions other than on the basis of law and justice.
The root of the evil is the power of the office of the Chief Judge. It is the misuse and abuse of the powers of this office that has led to the decline of the judiciary. The powers have been in the hands of the wrong person. Despite knowing these root causes, this Bill seeks to provide greater power to the office of the Chief Judge. There is no provision for taking action against an errant Chief Judge if he commits misconduct. There is no provision in this Bill to address this fundamental defect.
I ask the Honorable Minister to answer why the power to determine cases of misconduct is not given to a panel of independent persons. The independent persons must be persons who have no interest in the appointment and promotion of judges. They may be retired judges and eminent persons well versed in the administration of justice. The Bill should be amended to provide for this.
There are many weaknesses in the judiciary but those set out below must be corrected immediately.
The first is that the judiciary must have its own budget. When the judiciary does not have power over its own finances and where as present it is dependent on the executive through a Minister, there can be no independent judiciary.
The appointment of judges must be based on merits and the character of the person must be beyond reproach. One who will decide without fear or favour and will dispense justice even if the heavens should fall on him.
The salary and emoluments must be increased so that only the best and the most able will accept the posts. Poor pay and poor working conditions will only cause judges and the court staff to fall prey to bribery and corruption.
There must be accountability and discipline. An opaque system of appointment, promotion and the lack of disciplinary action against those who breach the conduct expected of judges will lead to low morale and ultimately only those less than qualify will want to be judges and those who qualify will not want to sully their reputation in becoming part of a weak judiciary.
There must be a transparent system. The court procedure must be simplified to enable the public and litigants to understand the process. This will prevent judges from making decisions based on technical procedural requirements that do not accord with common sense and the general notions of fair play.
The above matters have been missing from the judicial process. It is no use in spending millions of ringgit on hardware, in constructing new court houses, providing for computerization and buying equipment when scant attention is paid to the software, the people and the skills and values of the judges and court staff.
In summary, I regret that this Bill will fail to meet its objectives. What is needed is to re-plant seeds of credibility in the judicial system. It is only by appointing judges that have the strength of character, integrity and honesty to act as the guardian of our constitutional liberties, the courage to act as the equalizer in the uneven contest between the government machinery and the ordinary citizen and the wisdom to be the fountain of justice, can we ever hope to revive the judiciary. Until we have the political will to take the errant judges to trial and on conviction punish them with a penalty that they deserve, having additional laws will not solve the problem.
For all these reasons I vote against the Bill.
The Minister in the Prime Minister’s Department gave the following answers in reply to the points raised in this speech.
The Biro Tatanegara Course is not compulsory for judges. There was only one course conducted for judges in 1997 and did not involve all the judges. Since then until the present no judges have been directed to attend the Biro Tata Negara course.
Amendment to the Constitution
The government does not have any proposal at this time to amend Article 121, 122B and 125. Of the Federal Constitution.
The case of Adorna Properties
The case of Adorna Properties Sdn v Boonsoon Boonyanit has been revisited by the Federal Court in Tan Yin Hong v Tan Sian San where the same issue as in Adorna Properties v Boonsoon Boonyanit have arisen. The Federal Court Judges have not delivered their decision on this case.
The Judges Ethics Commission Bill 2008 was approved by a majority vote in the House of Representatives on 16 December 2009 despite strong objections from the opposition.