Why retired judges should speak up

 

On May 24, former chief justice Mohamed Raus Sharif was reported to have said the independence and impartiality of the Malaysian Anti-Corruption Commission (MACC) began to be questioned with the appointment of a politician as its chief commissioner in 2018.

Without naming Latheefa Koya, Raus said the appointment had led to widespread perception that actions taken by the MACC were politically motivated.

“Not surprisingly, there were allegations of selective investigations, selective prosecutions. There were also allegations of improper withdrawal of charges. To top it all, issues on the integrity of a few MACC officers started to surface,” he was quoted as saying by FMT.

As a result, he said, present MACC chief Azam Baki had to shoulder the responsibility of restoring public trust in the agency.

Speaking at the third Malaysia Anti-Corruption Forum, Raus also said the MACC must be free of political interference.

Latheefa,  then a member of PKR, served as the fifth MACC chief commissioner from June 2019 to March 2020. She was appointed by Dr Mahathir Mohamad in a move that even caught PKR leader Anwar Ibrahim by surprise. We learned that Latheefa and Anwar were not exactly on the same page in PKR. Her appointment, we were told then, was Mahathir’s prerogative.

I think what is important is that anyone nominated to head the MACC, or any agency for that matter, must be capable and have unquestionable integrity. I would prefer that a career officer with high integrity be appointed to lead the MACC but I have no problem with someone else who is equally capable and incorruptible.

The fact is, even before Latheefa’s appointment, there were Malaysians who did not fully trust the MACC. Most Malaysians would agree with Bukit Gelugor MP Ramkarpal Singh’s contention that in blaming Latheefa’s appointment for the rot in the MACC’s image, Raus seems to be “ignorant” about the public perception of the agency.

Ramkarpal noted in a press statement on May 25 that Latheefa had unveiled leaked audio recordings between former prime minister Najib Razak and former MACC chief Dzulkifli Ahmad in 2016, which he said gave the commission’s image a beating.

“Whether or not the said recordings are true, they are certainly damning and ought to have been addressed by Raus, particularly when (current MACC chief) Azam Baki himself was at the press conference when the recordings were exposed.

“But the biggest disappointment was Raus’ failure to address the elephant in the room – the recent shares controversy surrounding Azam which has attracted considerable criticism from the public, leading to a serious confidence deficit in MACC.”

Not many will disagree with Ramkarpal on this.

Even before Latheefa came on board, there were those who felt that people in power appeared to escape the dragnet. The fact that no concrete action was taken against those involved in the 1MDB scandal before Pakatan Harapan (PH) took over the government still rankles. The death of a politician’s aide and DAP member Teoh Beng Hock after questioning at a MACC office still rankles. MACC officials themselves have been arrested and charged in court. So, confidence in the MACC is not exactly very high.

But I agree with Raus that the MACC must be free of political interference. The sooner the MACC is given independence and placed under Parliament, the better.

I may be wrong but I believe this is Raus’ first such public appearance since he resigned. It’s good that Raus and other retired judges are speaking up. We may not agree with everything they say but it makes for a more vibrant democracy.

I’m actually hoping that Raus will give us his version of what happened in the months before PH took over the government and his eventual resignation. If he were to write a book about the constitutionality of the “extension” of tenure given to him by the Barisan Nasional government and his meetings with Dr Mahathir and Daim Zainuddin after PH took over, I am sure many people would buy it.

The book by former Parliament speaker Mohamad Ariff Md Yusof, who was earlier a Court of Appeal judge, titled “Parliament, Unexpected” is doing well. It gives an insight into the workings of Parliament and the unprecedented political upheaval that led to the collapse of the PH government and his eventual removal.

I am sure many people in the legal circle are still puzzled as to why Raus, a chief justice, went to see Daim, who was then head of Mahathir’s unelected, temporary Council of Eminent Persons.

Questions over the constitutionality of the “extension” given to Raus, and his resignation, as that of then president of the Court of Appeal Zulkefli Ahmad Makinudin, had ramifications as some parties went to the Federal Court to seek to challenge the validity of the decisions made by panels on which Raus or Zulkifli had sat during this period of “extension”. The Federal Court ruled that the decisions would stand.

Writing about this on June 19, 2018, another former chief justice, Abdul Hamid Mohamad, regretted that even the post of chief justice had been politicised, and raised several questions about the matter.

Among other things, he described news that Raus had gone to see Dr Mahathir as “disturbing”.

He added: “Following that, there was more disturbing news: Raus went to see Tun Daim Zainuddin, the chairman of the Council of Eminent Persons, at the latter’s office. Again, I used the word ‘asked’ (in commenting about this earlier), arguing that even if it was so, it was still improper for Daim to ‘ask’ Raus to go and see him and for Raus to oblige.”

The fact is, Malaysians expect politicians not to interfere in or with the judiciary. There should be a clear separation of power. A vibrant democracy needs an independent judiciary.

Which makes me wonder: Should the prime minister continue to have a say in the appointment of the chief justice or other top judges?

Perhaps we need more discussion on this and other issues confronting the nation. That is why I am happy to see comments by retired judges. Although some of the senior judges get appointed chairman or director of this or that company, or a multitude of companies, after retirement, they should still find time to voice their thoughts.

Ex-chief justice Hamid pens a blog where he comments on various issues, and Ariff is quite vocal on many issues. And now that he is no longer a commissioner with the Human Rights Commission of Malaysia, former Court of Appeal judge Mah Weng Kwai has been making comments on issues touching on the law and the judiciary.

He recently urged the MACC to provide an update on the probe into Court of Appeal judge Nazlan Mohd Ghazali who, the graft buster said, was being investigated over allegations of “an unexplained sum” of more than RM1 million in his bank account.

Nazlan has denied it as baseless and many Malaysians are wondering if this allegation has to do with his guilty verdict against Najib in the corruption trial involving SRC International Bhd.

Of course, former Federal Court judge Gopal Sri Ram, although still very active in legal practice, continues to comment on legal and related issues whenever asked by newsmen.

I would certainly like to see more retired judges speak up. Most Malaysians are not aware of their rights or are afraid to speak up, whereas retired judges are well aware of the individual’s rights, the limits of government, constitutional safeguards and such.

Also, being retired, they are not bound by regulations or etiquette to remain silent on public issues, and they don’t really have much to lose if they do speak up.

Judges are said to have sound, incisive minds and I feel the nation can benefit from the active participation of retired judges in the national discourse. It will certainly make our democracy more vibrant. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.