Confidence in a competent and ethical judiciary is critical

 

Olli Hellman in a paper published in 2017 asserts that there is a new understanding of corruption. Instead of being driven solely by individualistic self-interest, corruption can also be viewed through the prism of an informal system of norms and practices. 

It is an approach that had not received much attention earlier. Hellman makes this bold assertion in his paper drawing from one written earlier by Benedict Anderson(1988) entitled "Cacique democracy in the Philippines, origins and dreams", that when corruption is "institutionalised in informal rules and routines" there is pressure on individuals within the system "to perform according to these norms". Our own Prof Syed Hussein Alatas had identified in the 1970s the problem of elite corruption prevalent in our society.

In most organisations in Malaysia, there is almost always some possibility to identify a street smart principal driver. Sometimes it is the head of the organisation but if that good person is perceived to be distracted, biding time or is weak, there are always others who will step into the power vacuum to pull the necessary strings in specific situations.

In most of the elite government agencies, the head honcho’s passions will be well known and where possible his ways will be emulated. In this regard, it was easy in the late 1970s and 1980s to identify many top officials as being interested in golf. But those halcyon days were simple and straightforward. The dire dereliction of duty then was to depart the office early for a discreet game of golf.

In various professional and administrative arrangements, there are adequate safeguards to ensure the smooth functioning, efficiency, transparency and delivery of certain core goods, services and decisions.

The most important of these organisations is the law and order mechanism and the pivotal court system. Ultimately the courts decide weighty issues such as those that impinge on sovereignty, national security, safety and equilibrium relating to loyalty, order, patriotism, honour, treason, fraud, perversity and duplicity.

For these reasons, judges who are appointed must be people of good character, learned in the law, impartial, independent and not be subject, in any circumstances to any form of intimidation or adverse influence in carrying out their duties. 

Their sole armour is their sacred oath of office and the security of tenure the position provides. If they find pleasure in golfing or gambolling and, if it does not affect their work, they should be left alone.

It would seem from a long affidavit made by a sitting Court of Appeal judge in February 2019 that there were some shortcomings in the delivery and administration of justice up to a certain point in time. A properly constituted and mandated RCI would have been the appropriate channel to address these perceived shortcomings.

After almost eighteen months, we are now told that that sitting Court of Appeal judge had been issued a show-cause letter by the chief justice. It is not clear if he is suspended or put in the cold storage. 

This action by the CJ comes almost a year after statements had been issued on the subject by Suhakam and the Bar Council. Now, some kind of a closed ethics enquiry is supposedly being commenced. One can only speculate what happens at this kind of hearing.

The complaint of inappropriate judicial conduct and indiscretion, without naming names, voiced by the deponent in February 2019 was perhaps seemingly wild, wide-ranging and impinged on the vital role of judges. Now this closed, possibly secret and speedy proceeding that he is being subject to suggests a determined effort to discipline him with disdain than to give a dispassionate hearing to his grievances. It smacks of overkill.

Would it be like Khrushchev denouncing the deceased Stalin for the latter’s personality cult and excessive cruelties at the 20th Congress of the Communist Party of the Soviet Union? That sort of action could be understood in a closed, secretive totalitarian communist system.

Such secrecy is misplaced today especially in Malaysia where people are hungry for accurate and timely information and fatigued by fake news and rumours whether it relates to Covid-19 or the courts.

The government could have held a discreet enquiry if there was a sincere desire to get to the crux of the problem. Instead, this present action seems more like an intense and insensitive effort to intimidate and injure the reputation of the deponent and also indirectly caution other senior judges in the system to observe certain norms, observe silence and conform with the informal dictates and norms of self-appointed guardians of the judiciary.

With all the shenanigans revealed by Justice Mohd Nazlan Mohd Ghazali in his judgment convicting a former prime minister on July 28, most of us are curious what else could be wrong in our ship of state. Was it just the tip of the iceberg that was revealed by Nazlan?

The legendary American economist, JK Galbraith, in his 2004 book "The Economics of Innocent Fraud" affirms that with increased state capture, corporate scandals and greed, overall American society suffers. He raises the apt question of "how can fraud be innocent".

The sworn affidavit of the sitting Court of Appeal judge should have been the starting point to seriously investigate and expose the alleged wrongdoings in the justice system. It related to the past and in no way would that have scandalised the present court. 

Surely no one would believe that all our judges were always and consistently the paragons of virtue exemplifying perfect and pristine conduct. Not so when checks and balances in the other two branches of government were rendered ineffectual and irrelevant by those who wielded supreme authority there. 

We now know that the system was somewhat inadequate in not equipping the Federal Court with the fit, proper and eminent people like N H Chan, KC Vohrah, Hishamudin Md Yunus and Mohd Ariff Md Yusof. Were they sidelined because of their high integrity, intellectual prowess and unblemished conduct?

Let us not be disingenuous about the real state of what the judiciary was not so long ago.

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The writer is a retired ambassador with 45 years of public sector experience. -Mkini

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.