The report of the expected six-month extension of Datuk Abdul Hamid Mohamad’s tenure as Chief Justice from April 18 to Oct 17 this year is the only bright spark in a desolate wasteland of the judiciary highlighted by three weeks of public hearing of the Royal Commission of Inquiry into the Lingam Tape.
After the three-week public hearing of the RCI into the Lingam Tape, the integrity, honour and reputation of the previous four highest judicial officers of the land – the occupant of the office of Chief Justice previously known as Lord President – spanning two decades had been dragged through the mud.
Nobody would dared imagine just one month ago that national and international confidence in the judiciary, which has reached unprecedented lows in the past two decades, could plumb new depths – but this is what happened since the RCI public hearing on 14th January 2008.
Last Thursday, a glowing tribute was rightly given to the former Court of Appeal President, Tan Sri Abdul Malek Ahmad by retired Court of Appeal judge K. C. Vohrah who said: “He was the chief justice that the country should have, but never had”.
Unfortunately, there are more than two persons whom Malaysians could rightly point to and say: “He was the chief justice that the country should not have, but had.”
It is most fortunate that Abdul Hamid is now the Chief Justice as he could hold his head high as the highest judicial officer of the land despite the judicial mud exposed to public light in the past three weeks.
The very fact that the current chief justice Datuk Abdul Hamid Mohamad is neither a “Tan Sri” nor “Tun” is the best illustration that he is an “accidental Chief Justice”, not because he lacks merit, capability and temperament to be Chief Justice, but because the powers-that-be who acted unconstitutionally in deciding the highest judicial appointments never intended him to be Chief Justice.
It is an indictment on the national integrity and the system of governance in Malaysia that the Prime Minister, Datuk Seri Abdullah Ahmad Badawi and the Cabinet cannot shake off their denial complex that something very wrong and rotten had afflicted the judiciary system in the past two decades and to admit the urgent need for root-and-branch judicial reform.
The Chief Secretary Tan Sri Mohd Sidek Hassan has recently been dragooned to become the Chief Propagandist of the Barisan Nasional in the run-up to the next general election – about the efficiency of the public service delivery system.
One of the things Mohd Sidek had been boasting is on “ethnic diversity in government” – that “it doesn’t matter if its all women or Indian or Chinese. We go for the best.”
Can Mohd Sidek or the Prime Minister explain why for the first time in the nation’s 50 year history, there is not a single Chinese on the Federal Court for the past 20 months?
The last Federal Court Judge vacancy should have been filled by a qualified Malaysian Chinese to maintain a fully multi-racial Federal Court but this was not done. Instead, the vacancy went to Tan Sri Zaki Tun Azmi, so that he could become the first Umno Chief Justice in Malaysian history!
Zaki took a triple jump last September to become Federal Court judge without ever being High Court or Court of Appeal judge – followed shortly after with a quadruple jump up the judicial hierarchy to become Court of Appeal President.
Can the Prime Minister or the Chief Secretary justify Zaki’s appointment as in accordance with best international practices of an efficient, accountable and world-class public service delivery system?
#1 by Jeffrey on Wednesday, 6 February 2008 - 3:23 pm
It is a paradox in this country that an “accidental Chief Justice†like Datuk Abdul Hamid Mohamad has commanded greater public confidence and commendation from the Leader of Opposition than previous ‘non-accidental’ and ‘specially chosen’ highest judicial officers whose names (embellished in front by honorific titles like “Tan Sri†nor “Tun†) have (in YB Kit’s words) “dragged through the mudâ€â€¦â€œsince the Royal Commission Inquiry (RCI) public hearing on 14th January 2008â€.
And even in the case of the RCI, whose main purpose is to allay public concerns about corruption or lack of independence of the Judiciary, is itself now facing challenges in the regularity of its proceedings in the form of:-
· Dato Seri Anwar Ibrahim’s serious allegations of an “unseen hand†manipulating the proceedings which he has refused to withdraw even in the face of being threatened by RCI’s commissioners that he was skirting on the “verge of contemptâ€;
· RCI’s decision of not calling Anwar and two other PKR leaders as witnesses that resulted in walk out by five lawyers;
· In spite of admission by Haidar that his sister was married to Ahmad Fairuz’s elder brother, who has since died 30 years ago, the RCI’s chairman refused to recluse and disqualify himself on grounds that their relationship ended 30 years ago.
On third point, newly appointed lawyer for Anwar, Karpal Singh had criticized Haidar for not disclosing his family ties with Ahmad Fairuz labeling the non-disclosure at the outset of enquiry as “unethicalâ€.
Karpal further pointed out although the marriage ended 30 years ago, “You (meaning Haidar) share a common niece (with Ahmad Fairuz), how can you say that it’s been terminated, how could it be? It can’t be,†said Karpal. – source Malaysiakini’s report by Beh Lih Yi on Feb 5.
Malaysiakini further reported, “Karpal, who is also the opposition DAP chairperson, then went on to cite few other case laws to support his argument that Haidar and Fairuz’s relationship was “sufficient to show real danger of a likelihood of biasâ€.
This challenge by Anwar/Karpal is a tough one for the RCI. I must say Karpal is correct. And he has case laws to back his point.
It is trite that justice must not only be done but seen done – and impartiality of any court, tribunal or body in judgment must not only exist but also ‘seen’ as not otherwise – the same rational why Tun Eusoffe Chin ought not have placed himself in a position as if he were holidaying with VK Lingam in New Zealand together. In judicial or quasi-judicial proceedings like that of RCI, it is not only bias that should not be present, but the It is a paradox in this country that an “accidental Chief Justice†like Datuk Abdul Hamid Mohamad has commanded greater public confidence and commendation from the Leader of Opposition than previous ‘non-accidental’ and ‘specially chosen’ highest judicial officers whose names (embellished in front by honorific titles like “Tan Sri†nor “Tun†) have (in YB Kit’s words) “dragged through the mudâ€â€¦â€œsince the Royal Commission Inquiry (RCI) public hearing on 14th January 2008â€.
And even in the case of the RCI, whose main purpose is to allay public concerns about corruption or lack of independence of the Judiciary, is itself now facing challenges in the regularity of its proceedings in the form of:-
· Dato Seri Anwar Ibrahim serious allegations of an “unseen hand†manipulating the proceedings which he has refused to withdraw even in the face of being told by RCI’s commissioners that he was skirting on the “verge of contemptâ€;
· RCI’s decision of not calling Anwar and two other PKR leaders as witnesses that resulted in walk out by five lawyers;
· In spite of admission by Haidar that his sister was married to Ahmad Fairuz’s elder brother, who has since died 30 years ago, he refused to recluse and disqualify himself on grounds that their relationship ended 30 years ago.
On third point, newly appointed lawyer for Anwar, Karpal Singh criticized Haidar for not disclosing his family ties with Ahmad Fairuz labeling the non-disclosure at the outset of enquiry as “unethicalâ€. Karpal further pointed out although the marriage ended 30 years ago, “You (meaning Haidar) share a common niece (with Ahmad Fairuz), how can you say that it’s been terminated, how could it be? It can’t be,†said Karpal. – source Malaysiakini’s report by Beh Lih Yi on Feb 5.
Malaysiakini further reported, “Karpal, who is also the opposition DAP chairperson, then went on to cite few other case laws to support his argument that Haidar and Fairuz’s relationship was “sufficient to show real danger of a likelihood of biasâ€.
This challenge by Anwar/Karpal is a tough one for the RCI. I must say Karpal is correct. And he has case laws to back his point.
It is trite that justice must not only be done but seen done – and impartiality of any court, tribunal or body in judgment must not only exist but also ‘seen’ as not otherwise – the same rational why Tun Eusoffe Chin ought not have placed himself in a position as if he were holidaying with VK Lingam in New Zealand together. In judicial or quasi-judicial proceedings like that of RCI, it is not only bias that should not be present, but the likelihood of bias as well.
It is a paradox in this country that an “accidental Chief Justice†like Datuk Abdul Hamid Mohamad has commanded greater public confidence and commendation from the Leader of Opposition than previous ‘non-accidental’ and ‘specially chosen’ highest judicial officers whose names (embellished in front by honorific titles like “Tan Sri†nor “Tun†) have (in YB Kit’s words) “dragged through the mudâ€â€¦â€œsince the Royal Commission Inquiry (RCI) public hearing on 14th January 2008â€.
#2 by Jeffrey on Wednesday, 6 February 2008 - 3:35 pm
Readers have to excuse the above errors of posting which appears duplicated (twice in one) by WordPress after despatch. Please ignore the first 18 paras and begin with ” It is a paradox in this country that an “accidental Chief Justice†like Datuk Abdul Hamid Mohamad has commanded greater public confidence…” somewhere in middle of the posting. The error is regretted.
#3 by kanthanboy on Wednesday, 6 February 2008 - 4:30 pm
“You (meaning Haidar) share a common niece (with Ahmad Fairuz), how can you say that it’s been terminated, how could it be? It can’t be,†said Karpal. – Source Malaysiakini’s report
Haider was caught dumbfounded when Karpal pointed out that he (Haidar) and Ahmad Fairuz have a common niece. The only possible explanation is that Haidar has disowned his niece 30 years ago. [deleted]
#4 by catharsis on Wednesday, 6 February 2008 - 7:59 pm
One hand cannot cover the entire sky neither could you wrap a fire with paper- the truth will surface somehow.
Haidar is this what you call transparency. The irony is that you are one of the members of the panel investigating into the Lingam Tape. May God help us ………….
#5 by Saint on Wednesday, 6 February 2008 - 8:43 pm
Harapkan pagar; pagar makan padi
#6 by DarkHorse on Wednesday, 6 February 2008 - 9:48 pm
“The last Federal Court Judge vacancy should have been filled by a qualified Malaysian Chinese to maintain a fully multi-racial Federal Court but this was not done.’ Kit
Shouldn’t the question be whether we have the best legal brains presiding over the nation’s issues? It does not matter if they are Chinese, Indians or Malays etc.
This goes to show how far we have politicized the Judiciary. DAP and UMNO are equally guilty.
#7 by DarkHorse on Wednesday, 6 February 2008 - 9:53 pm
“In spite of admission by Haidar that his sister was married to Ahmad Fairuz’s elder brother, who has since died 30 years ago, the RCI’s chairman refused to recluse and disqualify himself on grounds that their relationship ended 30 years ago.” Jeffrey
I think you meant to say ‘recuse’ rather than ‘recluse’.
It is arguable if he is under a duty to recuse himself since that relationship has little or no influence over the Commission’s deliberations. It is not like he is a judge presiding over a case at trial and he knows personally one of the litigants.
#8 by DarkHorse on Wednesday, 6 February 2008 - 9:56 pm
But I do agree that the appearance of justice is more important irrespective of whether there is a likelihood of bias.
#9 by I Malaysian on Wednesday, 6 February 2008 - 10:36 pm
That’s the very problem we have in Malaysia. Executives and officers would come out having the thickest skin in the world to declare they are honest, law is above self and all that. Any common person who has sense of mind would tell, a person who has or had relationship of any nature would not be seen fair and just if he were put to judge the person he was related to. I wonder why Haidar wants to do that. It’s like Yusof Chin telling us his meeting with Lingam was accidental. What difference between Yusof and Haidar?
God, I wish I had the power to hypnotize these guys, at least I could make them to speak out the truth.
#10 by Jeffrey on Wednesday, 6 February 2008 - 11:27 pm
Yeah I got it wrong, he should ‘recuse’ then ‘recluse’ himself…..
The nature of Karpal’s challenge is based on the appearance of justice point : why didn’t he disclose the relationship at the beginning to avoid suspicions ?
According to Malaysiakini, “Malaysian Bar counsel Robert Lazar said the legal profession body’s position was that Haidar should have disclosed the relationship, especially after lawyers representing NGOs Suaram and Hakam raised the matter in chambers with the commissioners. On that occasion, such claims of conflict of interest against Haidar were dismissed in chambers. “We wish to emphasise that it would have been far more prudent if this was disclosed at the outset of the proceedings,†said Lazar, although he added that the Bar was not sure on how close the duo were as a result of that relationship through marriage.
#11 by limkamput on Wednesday, 6 February 2008 - 11:36 pm
DarkHorse Says:
Shouldn’t the question be whether we have the best legal brains presiding over the nation’s issues? It does not matter if they are Chinese, Indians or Malays etc.
This goes to show how far we have politicized the Judiciary. DAP and UMNO are equally guilty.
We can have the best legal brains to concoct and to do evil things too. What Sdr Lim advocated was diversity and with that a more moderating and encompassing influence on the judiciary. Malaysia is a multi-religious and multiracial country. Judges from one particular racial or religion group would most probably have very little sympathy for others even if they have the “best brainsâ€. One just has to read the decision on cases pertaining to religion to come to this conclusion. Yes, best brain only shows a person is clever. But we also need judges with different values, religions and cultural backgrounds. Besides, what is wrong with fighting for a Chinese to be a Federal Court judge? It is perfectly legitimate from whatever angles one may look at – merit, fair representation, diversity, and checks and balance. To quickly conclude that DAP is politicizing judiciary appointment may just go to show one’s false sense of righteousness.
#12 by DarkHorse on Thursday, 7 February 2008 - 2:14 am
“What Sdr Lim advocated was diversity …”
The kind of diversity we should seek is diversity in values not ethnic diversity. For example, we may have one who sees the Constitution as being secular and one who sees the Constitution as being less than secular. We may have one who is a strict constructionist and one is more liberal in his or her interpretation of the Constitution.
“To quickly conclude that DAP is politicizing judiciary appointment may just go to show one’s false sense of righteousness.” limkamput
This is the kind of judgmental attitude you have been exhibiting that has irked many a commentator on this blog. I suggest you stick to the issues.
#13 by DarkHorse on Thursday, 7 February 2008 - 2:21 am
“The nature of Karpal’s challenge is based on the appearance of justice point : why didn’t he disclose the relationship at the beginning to avoid suspicions ?” Jeffrey
Yes. He should have disclosed his relationship. As to whether he should recuse himself that is a matter that has to be dealt with separately. It does not necessarily mean that he must recuse himself or that he is under a duty to do so.
Haidar is already a polarizing figure to begin with and a controversial one.
#14 by undergrad2 on Thursday, 7 February 2008 - 4:45 am
Limkamput,
YB Kit said “The last Federal Court Judge vacancy should have been filled by a qualified Malaysian Chinese …”
He did not say a qualified Malaysian Chinese from the DAP. So what do you mean by “politicizing judiciary appointment”?
#15 by SIMPLYJUSTICE on Thursday, 7 February 2008 - 6:39 am
I NOTICED HOW EMBARASSED THE MALAYSIANS ARE WORKING UNDER A CORRUPT JUSTICE SYSTEM BUT CONTINEOUSLY WORKING UNDER THE SAME SYSTEM BECAUSE THEY CLAIM THEY HAVE NO CHOICE. I SUGGEST THEY SHOULD LOOK AT PAKISTAN’S SYSTEM FOR THE START.
#16 by BlackEye on Thursday, 7 February 2008 - 6:54 am
“Zaki took a triple jump last September to become Federal Court judge without ever being High Court or Court of Appeal judge – followed shortly after with a quadruple jump up the judicial hierarchy to become Court of Appeal President.”
Although Zaki broke the record, he is disqualified because he stepped on the line.
#17 by DiaperHead on Thursday, 7 February 2008 - 7:41 am
limkamput says
“Judges from one particular racial or religion group would most probably have very little sympathy for others even if they have the “best brainsâ€.
So what you’re saying is that with a Chinese and a Buddhist as a judge, he or she will not be sympathetic towards issues involving other religion and race – most probably??
LOL. You not only insulted all the judges but you just insulted Kit!
#18 by LittleBird on Thursday, 7 February 2008 - 7:56 am
A CJ without Tan Sri or Tun. Did somebody forget to speak to the right people to get our CJ a Tan Sriship. Even ex CJ Dzaiddin was upset that Eusoff Chin lied about his Tan Sriship.
On the other hand with so much being revealed in Royal Commission I think one dread to receive a Tan Sri for a moment. Wonder who is phoning who for one? ;)
#19 by Jeffrey on Thursday, 7 February 2008 - 9:44 am
Although, in the abstract, diversity in values is not necessarily ethnic diversity, however, in practical reality, they intersect especially when one considers ethnicity for some is inextricably tied up with religion and values. It will be better if there were more diversity reflective of the multi racial and cultural character of this country not only in the courts but also the civil service. I belive Malaysian Chinese are under represented in the Judiciary and yes I would agree with Kit’s statement that “the last Federal Court Judge vacancy should have been filled by a qualified Malaysian Chinese to maintain a fully multi-racial Federal Court”.
#20 by limkamput on Thursday, 7 February 2008 - 6:54 pm
This is the kind of judgmental attitude you have been exhibiting that has irked many a commentator on this blog. I suggest you stick to the issues. darkhorse
It is meant soley for u and some of your friends. From now, if civility prevails, I will not do again. Much depends on both sides. As I said earlier, I will not be bullied.
#21 by limkamput on Thursday, 7 February 2008 - 7:06 pm
LOL. You not only insulted all the judges but you just insulted Kit! Diaperhead
You have just insulted everybody with your stupidity, not me. You have nothing.
Please go read Jeffrey posting above. I am not sucking up to him. He was able to convey so succinctly and aptly what I was trying to say.
#22 by limkamput on Thursday, 7 February 2008 - 7:09 pm
So what do you mean by “politicizing judiciary appointment� undergrad2
Sorry you have to ask your friend, darkhorse. This was what he said earlier: “This goes to show how far we have politicized the Judiciary. DAP and UMNO are equally guilty”.
#23 by undergrad2 on Thursday, 7 February 2008 - 7:15 pm
To switch gears a little. In the U.S. (of course my critics will say Malaysia is not U.S.) although the population of the United States is part white, part black and part Latino (in 2050 for the first time the Latino population is expected to exceed that of the white population) the appointment to the U.S. Supreme Court is not based on race, color, religion. Religion as you know has no role in the nation’s life. Neither is it proportionately represented by states.
The process too is transparent. The President’s nominee Harriet Miers has had to withdraw in the face of fierce opposition days before Senate confirmation hearings. Yes, they go through hearings before the U.S. Senate Judiciary Committee when they were examined as to the views they hold and not their party affiliations. Nominations are never based on whether they are white, black or Latino etc. Nominations are based on the views they hold such as whether they were pro-life, strong in gun control, favors a small government, less taxes and strong national defense etc which are no doubt values which tend to coincide along party lines – but only coincidentally. For the most part they tend to be bipartisan.
Still many Democrats opposed Samuel A. Alito, Jr’s nomination. But that is because of his views on the environment and gun-control and not because he is a Republican.
But of course, Malaysia is not United States. Malaysia is a developing country still struggling with its identity, a country ravaged by the politics of race and religion
#24 by undergrad2 on Thursday, 7 February 2008 - 7:41 pm
Jeffrey QC, Dark Horse is right when he says:
“The kind of diversity we should seek is diversity in values not ethnic diversity. For example, we may have one who sees the Constitution as being secular and one who sees the Constitution as being less than secular. We may have one who is a strict constructionist and one is more liberal in his or her interpretation of the Constitutionâ€.
Let’s examine what you said:
“Although, in the abstract, diversity in values is not necessarily ethnic diversity, however, in practical reality, they intersect especially when one considers ethnicity for some is inextricably tied up with religion and values. It will be better…â€
Nominations to the U.S. Supreme Court are based on the values they hold and not whether they are black, white or Latino. Nominations too are not based on Party lines i.e. whether they are Republicans or Democrats. If a nominee happens to be black because of his views that does not mean he is nominated because he is black. I’m not a student of U.S. constitutional history but there must have been periods in its history when there is no black on the U.S. Supreme Court justice. I believe there is one right now. But Latino?
So in the case of Malaysia if they “intersect†like you say, it should only be because of their values they hold. In the case of the U.S., some Justices on the U.S. Supreme Court have values closer to that of the Republicans but that is merely coincidental.
The issue is should nominations to our Federal Court be based on race at all. The short answer to that is ideally it shouldn’t. The extent to which we allow it to interfere with our choices is a betrayal of our commitment to principles.
#25 by Colonel on Thursday, 7 February 2008 - 8:06 pm
Yeah, like Shamshul Anuar said because Malays are in the majority, it is a coincidence that judges tend to be mostly Malays.
#26 by limkamput on Friday, 8 February 2008 - 3:19 am
Undergrad2,
Although you did not address it to me, my comment is may be you want to tell UMNO first what you have stated above. Ideally, what you said is correct. But I am a realist. By the way, it seemed not so coincidental to me when Justice Clarence Thomas was nominated and appointed to replace Justice Marshall in the early 1990s. You may think in the US they are “colour†blind but I don’t think so.
I also don’t entirely agree with the observation that nominations too are not based on Party lines i.e. whether they are Republicans or Democrats. If this is the case, we wouldn’t be hearing things like: some of Supreme Court justices may be can die now when President George W Bush first assumed office.
#27 by LadyGodiva on Saturday, 9 February 2008 - 3:39 am
“If this is the case, we wouldn’t be hearing things like: some of Supreme Court justices may be can die now when President George W Bush first assumed office.”
I cannot understand what this poster is saying! Why should anybody die when President Bush leaves office??
#28 by limkamput on Saturday, 9 February 2008 - 10:18 am
Ok, since you asked, I will try to explain to you. May be I did not make it clear in my earlier posting.
When undergrad2 said that the nominations in the US are not based on Party lines i.e. whether they are Republicans or Democrats, I disagree. This is because potential Supreme Court justices are usually nominated because of their alignment to the President’s party. As you know, the sitting president will get to nominate the vacancies in the Supreme Court. When Clinton was president, many Republicans and those who shared their view were so worried that some Supreme Court judges would while die while Clinton was still in office (you must understand many judges were very old). So, after Clinton, when Bush assumed office, these old judges “can die now†because Bush now get to nominate the potential judges. All these go to show that the nomination of US Supreme Court justices are very much governed by party line, contrary to what undergrad2 had said.
And with regard to Justice Marshall and Justice Thomas, both are black, one nominated and appointed to replace the other. Justice Thomas was nominated and confirmed under lots of acrimonies and protest. Many feel that there are better white, Latino and even other black better than him, but he was appointed anyway. This is my point. Although they may not have mentioned it explicitly, the reality is they want one black to replace another black. By the way, justice Marshall made many landmark cases on the civil rights in the US.