K. Haridas: The message, the messenger and the ostrich syndrome! (The Malaysian Insight, 8 February 2021)

https://www.themalaysianinsight.com/s/299375

WHEN a judge of the Court of Appeal steps out and makes statements that challenges the judiciary, then such an act calls for serious inspection and introspection within the judiciary. What is the message of the messenger?

The earlier government recommended the setting up of a royal commission of inquiry (RCI), which seemed the most honourable, transparent and judicious manner of handling the serious issues highlighted by the distinguished judge.

Some judges then seemed to have expressed their reservations. This then led to a change in process. Obviously this could perhaps include some of the judges who were uncomfortable with issues stated in the affidavit!

Very well-versed in law, our Appeals Court judge has written books on civil procedure, criminal procedure, evidence, conveyancing, Islamic banking and domestic arbitration. His books are used by students and at several institutions of higher learning in Malaysia.

For more than six years he was also an active member of the Malaysian Bar. He holds a doctorate and has also lectured at several universities. So we are not talking about a lightweight but one who is very well-versed in the law and for whom his oath of office holds personal meaning and conviction. I wonder how many of his seniors are equally well-educated.

Yes, he believes in the supremacy of the constitution, which offers a paradigm, I believe, to meet the challenging legal scenarios of today. Suhakam, the Human Rights Commission of Malaysia, has urged the government to set up an RCI to look into the essence of the issues that the good judge has raised.

Likewise, calls have also come from the Bar and other groups, such as the C4 and Gerak. Only a reform-minded government will follow through such responses in an active manner. The present government does not seem to have the credibility nor the will to make reforms as their performance over the last months is enough of a measure of their capabilities.

The significant achievements of the judge should be noted. This raises a key question as to why at the end of his career he would like to have his reputation tarnished. Things must have come to a boil and this must have challenged his conscience to take a stand.

This is not to say that the judiciary in Malaysia has an excellent reputation. In the final analysis any system is only as good as the people who represent it. An earlier judge some years ago had to resign following similar frustrations and was unable to bring the desired changes.

For those of us who have been following the development in the Malaysian judiciary since the events surrounding the late and respected Salleh Abbas will recall the stories and scandals ranging from one “Lingam” to some top judges and holidays in New Zealand!

Putting myself in the shoes of the judge who has taken a stand, I would say that it must have taken time and a lot of thought before the judge wrote the affidavit. Further, he must have been so frustrated and having considered all possibilities decided to act as he did.

The recent step by the Ethics Committee to suspend him is perceived as a way to circumvent highlighting issues of concern he raised and for which he is ready to give details only at a hearing of a royal commission. They did everything to prevent him from getting a hearing and does this not show bad faith.

Had they done so after all the issues were raised and he was given the right to be heard in court, then this would have enhanced the standing of any decision taken by the Ethics Committee.

They had hoped his suspension would deter him from further action. It is a sorry reflection that the judiciary did not allow the substantive legal issues he raised from being adjudicated. Yes, for many judges this would be a hot potato and they would rather steer away from being shown up by their stand.

This is what interests ordinary people concerned about the judiciary. This is about our judiciary that is supposed to preserve, protect and defend – our constitution.

Even the right to free speech seems to be denied to a judge! Give him precedence as he is from within the judiciary, unless there is something to hide. Hold him accountable to the standards required.

The several issues that the good judge raised are very serious and if these are not addressed then we can forget about any reform in the judiciary. Does the judiciary support fairness, transparency and accountability?

The recent confession by a magistrate who was caught for corruption highlights interesting facts. He talks about a corrupt system in place and that he just inherited it when he moved to Kelantan. He talks about middle persons between him and the crooks.

From earning about RM1,500 under Grade L41, he went on to earn additionally RM10,000 per case. He was eventually caught on a drug-related case under Section 6 of the Dangerous Act. He must have made a handsome sum altogether during his tenure earning the reputation as a corrupt magistrate.

He was caught when the victim turned and became a whistle blower and exposed the entire syndicate, including the police officers. This reveals how powerful these syndicates are and how connected they are within the system.

This is a case from the holy state of Kelantan and I wonder how such syndicates operate in other states. Does this not highlight the rot within the system as a whole? Without the whistle blower this would never have been uncovered.

Justice Hamid Sultan is a whistle blower and should be accorded the protection under the Whistle Blowers Act. He was not seen in this context. With issues at such a senior level and involving people of high standing, the only resolve was to institute an RCI.

This would have been the ideal opportunity for the judiciary to call the bluff, if any, of Justice Hamid Sultan. The very fact that they have gone via the Ethics Committee to suspend him in effect means that they have vetoed his cause and killed his message.

The message and the messenger have become a victim of the ostrich syndrome. If the judiciary is serious about dealing with issues at the highest levels, they should be open to being evaluated and held to account. They will never succeed without a whistle blower. The affidavit has been in the public space.

No judge would want to squeal on his fellow judges but if the conduct and direction of senior judges affects the independence of a judge and his decisions, then this raises serious issues of conscience. Here is an opportunity for us to effect change and strengthen our judiciary.

Justice Hamid Sultan, the man, his credentials, experience and clear thinking is so very critical for our judiciary. Serious groups within the country have called for action and many have expressed disappointment regarding the decision of the Ethics Committee.

We do so not to disparage the judiciary but because the judiciary is so very critical to the balance of power that is needed. Justice has to be fair and fairness has to be witnessed and perceived by people at large nationally and internationally.

All human beings are susceptible to temptations of titles, power, privileges, money, wealth and its associated issues relating to drink and sex. Whether you are a pauper or a prince, of any colour, race or tribe, such vulnerabilities corrode personal convictions and values. Very soon justice is rationalised like PAS leader Hadi Awang who now advocates that corruption is outside the “hudud” system.

That is why we need checks and balances to ensure that our system works and individuals who helm our judiciary are men and women of character. The executive remains a powerful branch of government and if their activities remain unchecked, they can corrupt any system of checks and balances.

With titles, patronage, money, retirement benefits, appointments to company boards, the executive remains a branch of government that can promote issues relating to conflict of interest. It is their quid pro quo that impacts the legislature and the judiciary, and this then challenges everyone.

Consider our infected civil service with the cases now against a former secretary-general of the Ministry of Finance, the embarrassment to the former chief secretary not to mention others silent and complicit under the Najib rule.

We cannot continue to place our head in the ground and just say that all is good and rosy. This is not so and we should admire and respect the courage of men like Justice Hamid Sultan who stands up, speaks out and has the guts to challenge the system.

Only those with a sense of moral courage can do so. How many within the establishment understand what moral courage really means? Do such individuals have a voice in the Malaysia of today or are we so far gone that good people are reduced to becoming just good for nothing? Hopefully not. – February 8, 2021.