Missing The Point In Judicial Intimidation Interference


 



I came across an opinion piece by former chief justice Abdul Hamid Mohamad dated May 7, 2022, bearing the title ‘Judiciary intimidated: The other view’, on the controversies surrounding the MACC’s announced investigation of a sitting judge.
The article appears to group together the views expressed thus far by the current Chief Justice, the Chief Registrar, the Bar Council, two DAP leaders, newspaper The Edge, and constitutional expert Dr Shad Saleem Faruqi (whom I will, for convenience, refer to as “the six parties”), into what its author terms “a one-sided view on the issue”. The article queries and rebuts some of the views publicly expressed by one or more of the six parties.
I obviously do not speak for any of the six parties. Nor is it the case that my views and my reasoning on these matters will necessarily or perfectly coincide with theirs. I also do not regard all of their views to be homogenous or “one-sided”.
In the article, the former CJ seems to suggest, or imply, that one or more of the six parties have taken certain positions, or have made certain arguments. Again, it is not my place to speak on their behalf as to whether those are truly their positions.
What I am able to say is that my own understanding of what the six parties have respectively and publicly stated is not in agreement with Hamid’s (above) interpretations (as appears from the article).
The former CJ states that “no judge is above the law”. This is, of course, correct. I doubt anyone would argue against it. But this obviously correct statement can only be a relevant rebuttal to the positions taken by the six parties if the latter had advocated a contrary view. I do not recall any of the six parties as having taken the position that judges are above the law.
I fear that the author of the article had missed the point on how and why recent events regarding MACC’s announced investigation of Court of Appeals judge Mohd Nazlan Mohd Ghazali had given rise to reasonable perceptions of intimidation of judges, and of interference with judicial processes.
Speaking for myself, these perceptions arise from a combination of the following matters; which must be understood in the factual context of recent events.
Reasons why recent events are questionable
While judge Nazlan is well-respected in the legal fraternity, “personality” must be put aside. Thus, the views I express are not in relation to one particular judge.
Similarly, what decision a judge might have made in a particular case does not enter the equation at all. When Hamid asks: “Had judge Nazlan acquitted Najib, would the Bar Council issue a similar statement?” I am afraid his query is ill-informed. Perhaps the former CJ is unfamiliar with the history of the Malaysian Bar.
Court of Appeals judge Mohd Nazlan Mohd GhazaliThe Malaysian Bar that I know has a rich history of rising to defend fundamental principles, not personalities. To give an example, the 1988 judicial crisis saw the Bar rise without hesitation to defend a Lord President (Salleh Abas) whom many members considered a difficult and unfriendly judge, against his later successor who was hitherto well-liked by the Bar.
Later, in a related episode when a sham tribunal was formed to try judge Mohamed Azmi Mohamad and four other Supreme Court judges, Arthur Lee (a Bar Council member at that time) was among the first to rise to vigorously defend judge Azmi and his righteous colleagues against the executive’s assault on the judiciary; notwithstanding the fact that Arthur Lee had himself felt that he was unfairly convicted of contempt of court by judge Azmi sometime earlier (over his criticisms of some judges). For the Bar, principles triumph over personalities.
Returning to the present, I do not suggest that a judge cannot in any circumstance be appropriately investigated by the relevant authorities, such as by the police or the MACC. What I do suggest, is that any such investigation must be carried out properly and fairly, and without creating any reasonable perception of intimidation of individual judges or of interference with the functioning of the judiciary in general.
MACC’s unusual behaviour
Unfortunately, what recently transpired has, in my view, failed the tests of good faith, fairness and propriety; and has instead nourished a perception in the minds of reasonable persons that there might be some subterranean agenda or hidden hands, and that there could be more than meets the eye. This is so, for several reasons.
Firstly, from past instances (including a recent, widely known one), it is clear that the MACC does not investigate with full intensity every case the moment an accusation of corrupt practice is made against a person; without first satisfying itself that the allegation is not frivolous, baseless or mala fide. This is the first task any responsible MACC administration is expected to undertake.
I very much doubt that, if I were to pen some allegations of corruption against a person in high position, the MACC will immediately rush to announce and begin an investigation into that person; instead of first finding out in as much detail as possible what basis or prima facie evidence I could offer for my accusations; or whether there was the basis for my allegations and if I was acting out of a grudge or a hidden agenda.
MACC chief commissioner Azam BakiMany feel that in the instance under discussion, the MACC did not act with proper deliberation and fair prudence; particularly when dealing with allegations from someone who situated himself out of the jurisdiction of this country.
Secondly, it is not a consistent practice of the MACC to promptly announce or confirm its investigation into each and every person against whom accusations have been made.
Without it being a uniform practice, the unqualified alacrity of the MACC to do so in this instance invites a reasonable perception that it could be aimed at publicly tainting and undermining the target of a probe before a proper investigation can be carried out or completed. This does not become a responsible investigation agency. Nor is it fair or proper.
Thirdly, unless the MACC thinks that it is not taken seriously by the public; it must know that an announcement of a target of an investigation ought not to be made prematurely or lightly because it will convey to many members of the public an oblique message that there is “no smoke without fire” – a common sentiment which is often misinformed, but nonetheless damaging.
Since the MACC does not uniformly announce or confirm every target of an investigation; doing so in this instance (and at so early a stage) emits a suspicious scent as to whether it is done to undermine a sitting judge or an ongoing court case.
Fourthly, the situation was made worse, when the MACC did not, at the outset, issue a clear caveat to stress that no adverse inference ought to be drawn against the target of investigation at this stage; since MACC had barely begun its investigation. Not that such a caveat would necessarily diminish the impression of “no smoke without fire”; but its omission shows that the MACC had failed to even do the least that it could have done.
Fifthly, what message is the public expected to detect when it is noticeable that the police has not announced with the same promptness and enthusiasm as the MACC had displayed any investigation arising from the police report complaining that Raja Petra Kamaruddin’s allegations are false and baseless?
Intimidation and interference
Sixthly, where the target of an investigation happens to be a sitting judge, it is not surprising that the recent events have fuelled an unhealthy perception that, beneath the official taglines, there might be a hidden agenda of intimidation and interference with the functioning of the judiciary. The memory of past interference (not least of what happened in 1988) is painfully unforgettable.
Lord Denning famously reminded judges to always provide counsel with a conducive environment for them to perform their duties to the best of their abilities, for the respective parties.
Likewise, it is crucial that judges be always provided with a conducive environment to carry out their duties without intimidation or interference, including perceived interference. In this context, the recent events are troubling for the reasons outlined above.
Interference with judges’ performance of their duties can also come in the form of “making life difficult” for judges. This is analogous to the situation where an unenlightened judge makes life difficult for a counsel appearing before him or her - which will interfere with the counsel’s ability to do his or her best for the client.
Where there is a bona fide and prima facie basis to investigate what a judge might have done; such investigation must of course proceed without fear or favour. However, if no bona fide and prima facie basis exists, launching an investigation into a sitting judge (and announcing it at the outset) is, in my view, intimidation and interference.
It is no answer to say that an innocent judge who is investigated will eventually be cleared of any wrongdoing. Dragging a sitting judge through the mud without sound basis and making his or her life difficult, is plainly wrong.
And the wearisome prospect of being put through such an energy-sapping process for no good reason will be intimidating despite any self-knowledge of innocence.
I recall that, during the 1988 judicial crisis, a few well-respected sitting judges who voiced their views against executive interference at that time were all-of-a-sudden investigated by the then Department of Inland Revenue.
In the end, those agenda-driven investigations yielded no wrongdoing on the part of the judges. Nevertheless, would anyone say that those judges were not unjustly harassed and intimidated?
In those days, the investigations were not announced to the whole world; and so the sitting judges were spared the bad press of “no smoke without fire”. Today’s judges may not be as “fortunate”.
Presently, there are several other criminal prosecutions against high-profile persons being tried by a number of judges. One cannot help but wonder whether or not the recent callous treatment given to judge Nazlan is a form of indirect intimidation on others - signalling to the other judges that they too might in time to come have to undergo unsavoury and negative experiences, innocence notwithstanding.
Bar Council intimidating the MACC?
I am perplexed by the former CJ’s poser that the Bar Council’s statement and the article in The Edge could be seen as “intimidating the MACC from doing its duties”.
I would have thought that one can only be in a position to intimidate another if one has the power to take some kind of action against the other (which the latter hopes to avoid); such as where an officer has the power to arrest, detain, investigate, or charge a person.
Apart from voicing criticisms, neither the Bar Council nor The Edge has any power to do anything to the MACC. In what way can a Bar Council statement or an article in The Edge ever be said to be “intimidating” the MACC? That would be as absurd as saying that the former CJ’s criticisms of the Bar Council have intimidated the Bar Council; or that the former CJ is intimidated by the views I express here.
Standing up for non-interference with the judiciary
Whenever interference or perceived interference with the judiciary is detected or suspected, the Malaysian Bar has always stood up to defend the independence of the judiciary, at times to the detriment of its own Bar members. A matter of such fundamental importance demands both vigilance and promptitude.
Judicial functions are non-delegable. The journey of an upright judge in discharging his or her duties can often be a lonesome one. By reason of their responsibilities, individual judges refrain from entering the fray of public discourse, and (unlike the rest of us, including former judges) they are hamstrung in defending themselves in the public sphere, even when vexatious accusations made against them are downright false.
As the head of the judiciary, the current Chief Justice has made timely statements to remind all quarters that the functioning of the judiciary (and of judges) must not be improperly interfered with. In my view, the CJ’s statements are appropriate and measured; and they reflect the hallmark of true leadership.
Hamid said that he does “not disagree with any part of” the current CJ’s speech but he questions its timing. I do not see anything wrong with the “timing”. When a subject matter of concern to the judiciary becomes a current topic of public discussion; it is indeed timely, and in the public interest, for the head of the judiciary to state or explain the judiciary’s views.
Chief Justice Tengku Maimun Tuan MatIt appears to me that, apart from timing, Hamid does have other issues with the current CJ’s speech. This can be inferred from other comments that he makes in the article:
(a) He argues that because the allegation is made against a particular judge and not against the judiciary generally; “why should the judiciary jump to the defence of the judge?”
(b) He also asks: “is it not better to allow the MACC to proceed and complete the investigation?”
(c) He further states that “independence of the judiciary does not include freedom to commit a crime and from being investigated for it.”
His comments, in my view, miss the point yet again.
I do not find the current CJ having “jumped to the defence of the judge”, as dramatised by Hamid. To me, her speech was composed and measured. It relates to any and all judges; not just a particular judge.
It is the manner in which MACC has gone about the matter that makes recent events highly questionable. I did not read the current CJ’s speech as suggesting that judges cannot under any circumstances be investigated by the relevant authorities.
In this aspect, I am not convinced by those who propose that sitting judges can or should (in all situations) only be investigated via an internal process. Such an argument can be made and has been, but I prefer Hamid’s view that it is too much of a stretch to say that Article 125 of the Federal Constitution so requires.
As for Hamid’s statement that “independence of the judiciary does not include freedom to commit a crime…” - this statement is absolutely correct. But I have not heard anyone suggesting the contrary. Hamid is rebutting a proposition no one made.
The making of this obvious statement is rather odd and curious when seen in the context of the issues being discussed in the article. What is the foundation for and the relevance of this out-of-context statement when it is not established that any judge has committed a crime?
More baffling to me is the suggestion by Hamid that statements by the current CJ could be “sub judice” when made “before [an] issue is decided upon if raised”. I must confess that my understanding of logic, and of the concept as well as the rationale of sub judice, must be very different from Hamid’s.
For present purposes, suffice to say that “sub judice”, by definition, relates to a specific matter (not to an “issue” of general principle) presently under determination by a court. It does not, by any stretch of logic, relate to an “issue”, not before a court but which might come before a court in the future (if raised).
Allegation ‘ends’ if not used in court?
Hamid writes that: “Even though the allegation has been made by a blogger, if Najib’s counsel does not make an application for a retrial or does not use it as a ground of appeal in the Federal Court for the court to set aside the conviction and order a retrial, the matter ends there.”
I find this statement illogical, mysterious, and baffling.
Muhammad Shafee Abdullah, lawyer of former prime minister Najib Abdul RazakA serious allegation against a judge, if true, must not be put to rest simply because a party in a case does not act on that allegation. The matter must not simply “end there”. It must be properly investigated; with good faith, fairness and propriety.
A puzzling proposition that a serious allegation against a judge could or should just “end there” if Najib or his counsel does not rely or act on it, invites troubling inferences and jolting questions; such as:
(a) Is the allegation made just to assist Najib?
(b) Is the allegation made just to pave the way for Najib to make a new application or to advance a new ground of appeal?
(c) Is the allegation made with the prior knowledge, or at the request, of Najib or of anyone on his behalf?
(d) Is there an attempt to interfere with judicial processes?
These questions, thrown up by a former CJ’s statement, cry out for answers.
Independence of the judiciary is never a given
Some commentators (not Hamid) have described the Bar’s response to this matter as an “overreaction”. I cannot disagree more.
The history of the Malaysian judiciary, and that of many other countries, teaches us that judicial independence is never a given. Enemies of judicial independence abound and are always looking for an opening to invade. Judicial independence must be persistently fought for, constantly guarded, and frequently rejuvenated by judges, by the Bar, by various institutions, and by the wider society.
When vigilance lags, when things are taken for granted, or when saboteurs are allowed to undermine honest workers toiling in the arduous field of justice, judicial independence will quickly wither.
And whenever such things happen, or seem likely to happen, neither the judiciary nor the Bar (and the wider society) should be accused of overreaction. All must speak up, firmly and loudly.
Only silence is shame. - Mkini
YEO YANG POH is a former president of the Malaysian Bar.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.


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