The Star of Friday March 2nd merely reported him as having “hit out at judges who accept bribes”. There are also rumours of such judicial impropriety swirling amongst some members of the public. An ex judge Datuk Syed Ahmad Idid Syed Abdullah was forced to resign from the Bench when he became whistle blower. Could his allegations off corruption within judiciary be baseless when he was a member of that institution and paid the price of loss of position and pension for coming out open?

As a starting point Syed Ahmad Idid implicated and named 12 judges. The late Attorney-General Tan Sri Mohtar Abdullah said in July 1996 that the 12 judges implicated in the letter were interviewed by the authorities. He said he and his officers had read the investigation papers of the ACA and the police, and that the allegations were “wholly untrue and baseless”.

If the Chief Justice was prepared to publicly hit out at corrupt judges – and thereby indirectly admit their presence or at least that he made the statement by reason of the presence of allegations of corruption, then it is incumbent upon the responsibility, stature and image of his high office to order an enquiry or take appropriate action for judicial review or other form of appropriate action than to be seen doing nothing.

Let me also ask why can’t the Parliamentary Select committee on Integrity in which you are member call for Syed Ahmad Idid’s so called “poison letter” implicating 12 judges, review the allegations contained in it and report and recommend to the government whether a review of investigations by ACA or present attorney general is necessary?

The present AG is also reviewing allegations long ago made against ACA director general, so why can’t he review that which ex AG Mohtar had dismissed as “wholly untrue and baseless”?

Now supposing the Chief Justice takes action and orders or permits an investigation (whether or not by ACA) on judges alleged or suspected on reasonable grounds for corruption. What happens to the status of all cases already decided and disposed by these judges? If for example an accused has been acquitted is it necessary to order a retrial just in case the guilty had procured an acquittal by bribe? What about civil cases between two corporations in which one has won damages from the other : do we have to review and re-try/re-open the case or cases decided years ago on suspicion that the won who won paid its way?

What about investigations into magistrates, session court judges, Registrars and assistant registrars of courts and even peons who are allegedly paid to lose files, arrange for cases to be heard by friendly judge?

“..//..Double jeopardy! No can do….//..” Exactly, that creates the problem when CJ investigates, and as suggested, takes action against certain judges on grounds of corruption leaving the public to wonder nervously what happens to possible guilty criminals being adjudged innocent and released by such judges on whom action has been taken, and who now are beyond the reach of the law due to double jeopardy.

Even in civil cases, there is finality of judicial decision so that there is no chaos. But here’s the problem when judges are taken to task for corruption what happens to cases that they have in past decided in favour of parties that may possibly have bribed them to win? Will the other side that lost be satisfied and not ask for re-trial? Finality is important but so is justice – so how to balance between the two in dealing with cases already decided by judges now investigated and found guilty?

Undergrad2,

3 arguments support your position expressed in posting March 25th 2007.

They are:

1. There must be finality of judgments. That is a policy decision and imperative.

2. Any disturbance or reversal by an appellate court of any judgment that contradicts 1. can be justified only upon an error of law or facts within 4 corners of that judgment as per transcripts.

3. A judge who is corrupt and accepts bribes in some cases is logically not a sufficiently compelling empirical proposition to suggest he has necessarily been bias and influenced by either bribe or lack of it in the particular case sought to be reversed. Especially when within 4 corners of that judgment as per transcripts there is no indication of such bias. At all times a specific and verifiable nexus must be shown to connect subsequently known corrupt behaviour and how it had tainted prior judgment.

Now the arguments against are:

A. Litigants/Defendants have constitutional right to fair trial by fair judge to obtain justice.

B. Trial and Judge have to not only to be fair but to be seen fair and impartial; justice should not only be done but seen done too. Actual bias need not be proven but likelihood of bias can vitiate the proceedings. These are time honoured precepts. This is why judges should not fraternize with litigants, go with their lawyers for holidays. It is irrelevant that judge may not be actually be bias by reason of the socializing & fraternizing or holidaying but the perception that he may disallows him from engaging in such activities.

C. when the trial judge is proven tainted by corruption especially not limited to a particular litigant or type of case but generally a pattern of behaviour, (albeit subsequently) that taint, in the perception of public, will broaden retrospectively to his earlier decisions as well and as far as many are concerned evidence that the taint had a discernible effect on an earlier given case, decided, is unnecessary especially when, in most cases, there is strong element of permissible exercise of judicial discretion, and the question remains whether this exercise might have been so tainted by the corrupt disposition.

D. The nexus argument in 3. above is unacceptable because the doing of justice, and the fact that it ought to be seen done for due process to be exhausted is not an empirical matter or exact science. We cannot assign a value of x to a judge’s ability to be fair, divide it by y (y representing Maloney’s bribetaking), and determine whether the result is less than the constitutionally minimal level of impartiality for earlier cases decided. It is a value judgment and where one tilts. To re-open a previous case, one ought to need only show that the judge’s corrupt disposition forming a pattern would likely have influenced his earlier exercise of judicial discretion on a particular point of how the trial was conducted or finding of fact consistent with the corrupt motive or disposition.

We do not know, and we likely will never know, what the corrupt judge thought about when deciding a previous case but we do know – now – of how he viewed justice. It comes with a price tag, without which it is hard to give the benefit of doubt to the judge that he would mete justice. And bias” or “influence” affected by bribes is not something external to a judge’s personality that has severable parts to it for us to think that today he is caught for corruption but there is no proof that in deciding previous cases, especially in exercise of judicial discretion, he was ever then influenced by this corrupt disposition.

E. Why should we demand nexus and proof when it is not actual bias that needs proving but likelihood of bias that needs adverting? When what counts as much is constitutional imperative that a judge has not only integrity and impartiality but also seen to have such attributes, when justice should not only be done but seen done?

Finality of judgment is of practical importance to administration of justice but what is more important is justice is administered and seen administered in the first place.

Further correction of spelling “likelihood of bias that needs adverting?” in E should read “averting”

I much heartened by the principled stand taken by Minister in Prime Minister’s Department, Tan Sri Bernard Dompok who told The Sun that the Court of Appeal’s decision on the Subashini’s case was unfair to non muslims and that as “a matter of principle” he would stand by the memorandum that he and 9 other ministers had submitted to the Prime Minister to review and amend of Article 121(1)(A) of the Federal Constitution but which the 9 others except for him have since withdrawn. (Please read 1st page of The Sun March 29th under caption “Its unreasonable”.) Dompok was reported to have made a general statement ‘without referring to specific cases’ that some judges had allowed their “personal sentiment” to cloud their judgment. “This is the impression that the people have now”. Spot on. So I say Chief Justice of Malaysia, Tun Ahmad Fairuz Sheikh Abdul Halim must not only rid of corrupt judges but also judges who let their personal sentiments cloud their judgment of what is correct and what is not, what is fair and what is manifestly unfair and oppressive. We want quality not just quantity judges!

There is considerable disquiet amongst non muslims of the perceived trend of muslims rights overriding non mulsims’ rights in cases like Rayappan a/l Anthony’s and Subashini’s vindicated by our courts and there is no point in trying to forge national unity by national service programme when injustices of these cases are not given redress and reprieve. Our Chief Justice can do much to help by appointing bold and objective minded judges.