'RCI on judiciary put on back burner after objections by judges'

 

The previous Pakatan Harapan government had in 2019 endorsed a royal commission of inquiry (RCI) into alleged corruption in the judiciary but until the collapse of the ruling coalition a year later, it never materialised.

Former attorney-general Tommy Thomas, in his memoir My Story: Justice in The Wilderness, sheds light on what happened.

Thomas said following allegations by Court of Appeal Judge Hamid Sultan Abu Backer about corruption in the judiciary in February 2019, the cabinet agreed to set up an RCI.

"The prime minister (Dr Mahathir Mohamad) was tasked by the cabinet to act on it.

"Mahathir asked me to write to him on the next steps, so as to implement the cabinet decision," Thomas said, adding that he had drafted the terms of reference and selected the RCI members.

"They were a combination of retired judges of integrity, senior lawyers with credibility and independent civil society members.

"As to lawyers to assist the commission, I selected officers from the Attorney-General's Chambers and from the Bar.

"Everyone agreed to accept the appointments, and also agreed to keep the matter secret," he said.

Thomas said he then wrote to Mahathir on the matter.

"When I next met the prime minister, Tun said that he had received feedback indicating that such an investigation was not welcome to numerous judges, both serving and retired.

"Tun, therefore, stated I should leave the matter with him, which I did.

“Unfortunately, it was one of the issues that was pushed to the background, and never acted upon.”

Thomas said it was his firm conviction that for the freedom of expression and speech to have real meaning, people must be free to criticise those in power.

"No one probably was more condemned than me in the Pakatan Harapan administration, yet I never charged anyone," he added.

However, he said the judiciary had inherent powers to punish anyone for contempt of court, including imprisonment.

Contempt of court case

Thomas, in his memoir, also touched on the decision to file a contempt of court case against lawyer Arun Kasi after he attacked the Federal Court.

“I still preferred to adopt a hands-off approach to criticisms of the judiciary, but my officers were persistent in their recommendations that I should apply for contempt against members of the Bar, who should know better what was tolerable and acceptable criticism, and what was unacceptable," he said.

Thomas said he was shown Arun's writings and agreed that he had crossed the line by a "wide margin".

"After reflection, and with regret, I decided to institute contempt proceedings against Arun.

"The papers were drafted. Because the Federal Court was attacked mercilessly in a judgment it had delivered, the forum was the Federal Court."

Lawyer Arun Kasi

Thomas said Arun had sent feelers on settling the matter. Thomas added that his response was for Arun to retract his contemptuous statement, apologise and seek mercy from the court.

"I recall two judges asking Arun, who testified in the witness box – itself, a rare occurrence in the Federal Court – whether he had regretted his comments and whether he would apologise.

"It was clear to anyone in court observing proceedings that the court was hinting to Arun that they would be content with an apology. Arun refused to ‘read’ the judges, remained stubborn and was unapologetic," he said.

Unsurprisingly, Thomas said, the Federal Court convicted Arun of contempt of court a few weeks later.

"I had the distasteful task of asking, as guardian of the public interest, for a custodial sentence. But no specific period was mentioned by me.

"After brief submissions and a short adjournment, the Federal Court reconvened. The presiding judge announced a sentence of one-month imprisonment.

"I was much criticised for instituting contempt proceedings against a fellow lawyer, and then asking for a custodial sentence.

"They were difficult decisions and underlined the unpleasant aspects of the office. But as the saying goes: if you can’t stand the heat, get out of the kitchen," he said.

Thomas was, in 1998, in a similar position as Arun after questioning a defamation case.

Thomas was slapped with a six-month jail sentence despite apologising and expressing regret. However, in 2001 the sentence was reduced to a fine of RM10,000. - Mkini