When Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim (“CJ”) lashed out and chastised :-
• Judges who accept bribes;
• Judges who were often seen socializing with lawyers, prosecutors and corporate figures while hearing their cases in court; and
• Judges who were “constantly angry and foul-tempered”,
he clearly intended it as a message that our judiciary (with him as the head) is capable of self regulation and disciplining, and that errant judges failing to meet standards of appropriate judicial behaviour will be weeded out.

The implicit message is to rebut public demands for the Independent Judicial Commission (“IJC”) and to argue it is superfluous.

This is where the CJ got himself entangled because the argument can cut the other opposite way – that the very presence of such angry foul-tempered judges who accepted bribes, socializing with lawyers, prosecutors and corporate figures under present system of judicial appointment that has been going on for more than 20 years (as admitted by the CJ) contradicts his implied suggestion that the present system can self regulate and eliminate such errant judges of inappropriate behaviour!

It vindicates instead the argument of the advocates of IJC that we should have an institution like IJC to raise the selection/entry bar for judges in the first instance rather than lowering that bar by not so transparent an appointment process and, having to thereafter worry about how to remove such errant judges after embarrassment and damage have already been inflicted on the standing and image of the Judiciary.

In fact, the CJ’s “bombshell” revelations also provide a glimpse and insight into what he meant in his earlier startling analogy of how the proposal of IJC for judges selection was more akin to “nudity rather than transparency”.

As I have said in my earlier posting, the difference is that whilst transparency is, in all contexts, associated with socially approved values of openness, honesty and accountability, nudity is however, especially in the minds of persons of conservative mould, associated with socially disapproved values of shame (except in limited context of pre-pubescent youngsters or adults like husbands and wives or lovers in sexual relations within privacy of their own environs, shielded from prying public eyes).

[According to religious scriptures, human body is sacred, private sexual parts are even more sacred – as they facilitate reproduction and survival of our species – and therefore should be shielded by clothes, and not seen by the prying eyes of others with whom we are not in matrimonial sexual relationship (One can understand this, in that a husband and wife, in scriptures are said to be enjoined in one flesh)].

For these reasons, we are ashamed of nudity as in exposure of sexual parts that are not meant to be seen by inappropriate persons.

So for the CJ to use the ‘transparency akin to nudity analogy’ for IJC, he was in fact implying that the IJC would ‘strip’ bare parts of judiciary that would be as shameful as nudity to be exposed to prying public eyes.

Well, we can all agree that “angry foul-tempered judges who accepted bribes, socializing with lawyers, prosecutors and corporate figures” are shameful parts of the Judiciary institution.

But let it be so.

Now that the CJ has by his own statement given us a glimpse of these “shameful” parts, it only reinforces the urgency (in relation to the institution of judiciary) to move ourselves higher from the shame of nudity to the pride of transparency in our judicial appointments by implementation of the IJC.

One has to assume that the honourable Chief Justice will be the first to know about the rule regarding inadmissibility of ‘hearsay’ evidence.

If however he knows as a fact – and there is proof – about some “judges who accept bribes”, why have we not heard of action being taken against any of these errant judges?

So far in the annals of judicial history, we have only heard of judges of integrity being either sacked or forced to resign. Cases in point will be : 1988 Judicial Crisis leading to sacking/replacement of the Lord President Tun Salleh Abbas and the removal of 5 other Supreme Court judges for standing up for the Rule of Law against the Executive in 1988; the forced resignation of High Court Judge Datuk Syed Ahmad Idid for his whistle-blowing circulation of an anonymous letter alleging rampant corruption within the judiciary!

The other point raised about “judges who were often seen socializing with lawyers, prosecutors and corporate figures while hearing their cases in court” is open to interpretation depending on circumstances.

I think it is clear that if a judge were hearing a case involving a corporate boss, then it would be clearly improper for the judge to be seen being “entertained” by the corporate boss or his lawyer to lunch and dinners in restaurants or worse still in one of the popular karaokes or spas in town (including of course accompanied for a holiday abroad)!

In fact a judge has to maintain an anti-social and solitary personae. He can’t be seen socializing with people in general. Knowing the ‘sensitivity’ the corporate boss or his lawyer can otherwise arrange for their subordinates or friends or agents to entertain the judge.

Actually what is ‘socialising’? If the judge happens to go to Selangor club (near the courts) for lunch and by chance run into the corporate boss and his lawyer in the club who greet him with hello and some small talk, is that “socialising”? Is he to quickly say hello goodbye and scurry away? Even if he does, could he not communicate with them via private phone calls and e-mails or communicate via respective emissaries and representatives and agents? How does one prevent that?

We hear of judges being over burdened by backlog of cases. Supposing he wants to research on one legal point or case and phone or email some senior lawyer in some big law firm that has plenty of books and research facilities to help in elucidation of some legal point or case to lighten his case load. Is that ‘improper’ in the sense that the judge may become beholden to that senior lawyer who has provided assistance so that in a future case involving that same lawyer, the judge might tend to be partial in favour of that lawyer’s arguments? What exactly is “inducement” as in corruption to purchase public official’s favour? If it need not be money only, what about assistance provided in the form of access to research facilities or even legal advice on a point by that senior lawyer to the judge in the above example?

Next comes to the point about judges who were “constantly angry and foul-tempered” as mentioned by CJ. Now this is an even more contentious point – this issue of the right judicial temperament.

Some of our past judges of highest personal integrity and intellect
were “constantly angry and foul-tempered” because their patience was often taxed and exhausted by the comparative incompetence, long-windedness and inadequate preparations of the lawyers and prosecutors arguing the cases before these judges. What then?

Would we prefer benign and even-tempered judges who couldn’t constantly follow what is argued before them?

Once upon a time there was this judge who terrorized all who appeared before him by his irate temper, sarcasm, quick wit, whose English, both written and spoken, sprinkled profusely with Latin, was so powerful that every sentence he uttered, the lawyers and prosecutors had to consult the English and legal dictionaries.

Yet there was another brilliant judge who when angry was seen throwing his file and papers from where he sat on the high bench at the lawyers and public gallery. In spite of this, his legal judgment was erudite, first rate and almost perfect in law and logic.

Bad temper appears to be a badge of distinction for superior intellect amongst these rarefied circles. If one’s intellect and knowledge were not very high, how does one’s threshold of patience get so easily reached – and crossed for temper to flare – so the reasoning goes?

Now losing of temper is not just the exclusive preserve of judges.

One of the most distinguished doyen of the Malaysian Bar, a well known court lawyer having a string of celebrated cases over a span of nearly 50 years of practice, had also thrown his files and stomp out of court in a fit of temper and impatience at the slowness of the judge’s mind. His celebrated status appeared to have saved him from being committed for contempt of court!

What choice have we really got (with the brain drain in all sectors)?

Would we prefer a judge who is amiable and even tempered with all the appropriate judicial temperament and demeanour in court but who depends on his fellow brother judge to write all judgments for him, leer and ogle at attractive ladies in and mostly outside the court, and in social functions, like to get to know MAS flight stewardesses?

At least with “constantly angry and foul-tempered” judges, we know what he get – it may be a quirk of character undisguised arising from great legal erudition and genius better than the amiable and even tempered Dr Jekyll and Mr Hyde type who is proper in court and improper outside.