How independent are our judges?

The shocking revelation by a judge that he was reprimanded for a dissenting judgment again throws the spotlight on the judiciary and how far it is independent.

COMMENT

When an ordinary Malaysian fights with his neighbour and is unable to resolve the conflict, he goes to court; when a consumer has a problem with a product or the seller or manufacturer of the product and can’t negotiate a settlement, he goes to court; when an individual feels the government has infringed on his right or has targeted him unfairly, he goes to court.

In all cases, the individual who goes to court does so in the belief that the court will be fair and just; he trusts the court to ensure justice. A citizen expects a judge to rule without fear or favour, based on the facts of the case before him or her. A citizen expects a judge not to be moved by emotion or personal beliefs.

If a citizen is unable to get justice in the court, he is not likely to get it anywhere.

That is the reason society holds judges in high regard. They are dispensers of justice.

So it is disconcerting, to put it mildly, to learn that our judges may not be so independent after all, or that there is no real separation of power between the executive, Parliament and the judiciary.

The latest news to shake my confidence, and I believe that of other ordinary citizens like me, was the revelation by Court of Appeal judge Hamid Sultan Abu Backer.

He told an international law forum on Aug 16 that he was once reprimanded by a top judge for delivering a dissenting judgment in a unilateral conversion case that had not only generated immense public attention but had also caused concern about inter-religious tension.

According to Justice Hamid Sultan, he was not assigned to hear cases related to the Federal Constitution or public interest matters, and his relationship with this senior judge became strained, after that. However, he did not identify the senior judge.

What he said raises many questions. Is this, for instance, the first time a senior or superior has reprimanded a fellow judge over a ruling? Does this happen often or is this an isolated case? Did the senior judge act on his own or had he been pressured by someone in government or elsewhere to do so? How independent are our judges?

Justice Hamid Sultan was brave enough to say it openly at a forum but perhaps there are other judges who have not had the opportunity to voice similar problems they have faced.

Also, it raises the disturbing question of justice for minorities due to the nature of the case and the position of Islam as the official religion of the federation.

The Court of Appeal had upheld the unilateral conversion of the three children of kindergarten teacher M Indira Gandhi to Islam by her former husband, with Justice Hamid Sultan dissenting.

However, he was vindicated when the Federal Court affirmed his finding and allowed Indira’s appeal.

Certainly this is not the first time a judge had received a call from his superior.

In 2001, High Court Judge Muhammad Kamil Awang, in ruling the Likas election null and void, revealed that a senior judge had called him on the phone, at the commencement of the case in 1999, to tell him to dismiss the election petition. He, too, did not identify the person.

However, Eusoff Chin, who had then just retired as chief justice, admitted in an interview that Muhammad Kamil was referring to him. However, he disputed Muhammad Kamil’s version, saying he had called to discuss expediting the case and to draw his attention to two cases decided in 1994 and 1996 which held that the validity of the electoral roll was not within the court’s jurisdiction.

There were calls then for the matter to be investigated and action taken to ensure such an incident would not recur. Looks like it has recurred.

Under the circumstances, I will take the assurance by Deputy Minister in the Prime Minister’s Department Hanipa Maidin that under the new Malaysia, and the present Chief Justice Richard Malanjum, things will be different with a pinch of salt.

There are calls for a tribunal or a royal commission of inquiry into the revelation of Justice Hamid Sultan. I have my doubts as to the efficacy of such tribunals and RCIs.

Remember the RCI over allegations of judge fixing? The RCI panel investigating what had come to be known as the Lingam video clip case recommended that appropriate action be taken against five people – lawyer V K Lingam, Eusoff Chin, ex-chief justice Ahmad Fairuz Sheikh Abdul Halim, tycoon Vincent Tan, former minister Tengku Adnan Tengku Mansor and Dr Mahathir Mohamad, who was then in his first stint as prime minister – for misconduct. And what happened?

So, I think if an RCI is to be held, it should not be confined to just one incident. It should look at reviewing and reforming the judiciary as a whole.

That way, perhaps, the ordinary citizen will be confident that every judge is independent and that he will get justice in the courts.

A Kathirasen is an executive editor at FMT.