Three illustrious former members of the Bench share their views about the current state of the judiciary amid calls for an independent Judicial Commission for the appointment and promotion of judges.
SINCE the 1988 judicial crisis, the judiciary has been beset with allegations of impropriety. Now calls for an independent Judicial Commission for the appointment and promotion of judges have been renewed with the emergence of a video clip showing the apparent brokering of appointments between a lawyer and a senior judge.
Sunday Star talks to three retired judges – considered to be among the most highly-respected to have served on the Bench – for their views on the current state of the judiciary and what can be done to improve matters.
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Vohrah: ‘Judges should not be cowed by superior judges if their directions are not consonant with the principles of justice’ |
The three – Datuk Shaik Daud Ismail, Datuk K.C. Vohrah and Datuk V.C. George – retired as Court of Appeal (COA) judges. Shaik Daud gives training sessions at the Legal and Judicial Training Institute; Vohrah is a Suhakam commissioner, and George is a sought-after dinner speaker and moderator at legal conferences. All also do arbitration.
The Penang-born Shaik Daud, 71, started in the Legal and Judicial Service in 1963. He was appointed to the High Court 1983, and retired from the COA – the second highest court in Malaysia – in 2001. When he was called to the Bar in 2003, Federal Court Justice Md Raus Sharif praised him for “upholding the integrity of the judicial system.”
George, 77, a former Bar Council chairman, was appointed a High Court judge in 1981 after 25 years as a lawyer. He retired in 1995. His judgment in Foo vs TVB Ltd in 1985 put Malaysia on the “world copyright map” because he held that a company making films in Hong Kong was entitled to copyright protection here.
Born in Malacca, Vohrah, 70, was appointed to the High Court in 1986 and COA in 2001. He made the news in 1996 after he overturned the extension of a remand order and ordered the immediate release of the remaining 10 participants of the Apcet II meeting who had been detained after a few hundred Umno Youth members had stormed the conference.
The following are excerpts of the interviews that were conducted separately:
Sunday Star: The Bar points to the 1988 judicial crisis as the start of the problems in the judiciary. How were instances of impropriety dealt with before 1988?
Shaik Daud: When I was a High Court judge, if I received such a complaint I would show the letter to the subordinate judge under my supervision and ask him to tell me the truth. Sometimes there was nothing to the complaint but at times I took action. Unfortunately, I never told any of the complainants my findings. That was wrong.
Vohrah: There weren’t many cases of not writing judgments but if the Lord President got a letter complaining of that he would call up the judge and tell him to get it done. As for errant judges, there were one or two cases but as soon as the LP was aware of it he dealt with it promptly. In that time also action was taken swiftly against errant judicial officers; a number of them were disciplined or sacked.
George: When I was Bar president, I can think of one complaint of corruption involving a magistrate in the 1970s. The then Attorney-General, Tan Sri Abdul Kadir Yusof, spoke to the person concerned and told him to resign in the name of ‘national service’. When I heard about it and asked why that person was not prosecuted, Kadir said it had been dealt with quietly because he did not want one black sheep to besmirch the reputation of the entire judiciary.
When I was a High Court judge, I did not hear of any impropriety on the part of any magistrate or Sessions Court judge. And if there was a letter of complaint against any High Court judge, all the Lord Presidents I served under would refer it to the Chief Justice of Malaya or Borneo (Sabah and Sarawak now). The CJM/ CJB would ask for an explanation and dismiss the complaint if they found it to be frivolous after hearing it, as happened once with me.
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Shaik Daud: ‘We have many cases where seniors and seniors with merit are not promoted but juniors without merit are’ |
Whenever you heard allegations of impropriety, what did you do?
Shaik Daud: I was in Pahang when I received complaints that a magistrate in Raub started hearings at 11am or even after lunch. He was also seen having lunches with lawyers in the coffeeshop every day; people in rural towns don’t like that. So I gave him a warning.
Vohrah: In one matter, some lawyers came to see me with an application for a revision. I was horrified at the number of breaches of the Criminal Procedure Code. I fixed the case for revision the next day and instructed my registrar to inform the AG’s Chambers.
The next morning a judge came to see me to pass the message that no one from Chambers would be coming. He added our “chief” had said that if I continued to hear the application for revision, the Special Branch would come. I replied, “So what?” I conferred with Justice Malek (Ahmad) and he agreed that I should tell the Chambers that I would continue with the hearing without them. They sent someone. From that incident I made it be known that I couldn’t be browbeaten. Judges should not be cowed by superior judges if their directions are not consonant with the principles of justice.
George: I did not hear of any specific act of impropriety against any judge, only rumours and talk. If I had I would not have had any hesitation to refer the matter to the powers-that-be.
Has there been any change in the way the top positions in the judiciary are filled and judges selected post-1988?
Vohrah: Before, only one name would be submitted to the Prime Minister. But after 1988, a list of names would be submitted for him to choose from.
Shaik Daud: In the past, appointments by one person seemed to work. But lately, I’ve noticed that some appointments are questionable.
To become a magistrate, a judicial commission interviews the candidate, as I was. There is transparency. But to select a judge, that doesn’t happen. That is ridiculous when this person is given the power to take someone’s life. The fact that you have to appear before a commission means someone is vetting you. In the case of (superior court) judges, the PM will not know who the CJ recommends and accepts the names in good faith.
George: As early as the 1970s I had spoken of the need for a different system of appointments because the existing one was not good enough. In the days of (then LPs) Tun Suffian (Hashim), Raja Azlan (Shah, now Sultan of Perak) and Tun Salleh (Abas) would check up on candidates with the Bar president and other senior lawyers informally. It was possible then because there were only 600-700 lawyers but today there are over 12,000.
But even with such checks, mistakes can happen as in the case of one lawyer who was appointed a Judicial Commissioner. That mistake was “corrected” after the former lawyer’s law firm made serious allegations against him; I believe he was prosecuted. There was also one nomination that was withdrawn after the Bar Council drew attention to the fact that a suit, alleging fraud, had been filed against the candidate.
Cases like these only reinforce the importance of checking thoroughly a potential candidate before they are appointed. Post-1988, there have been fewer or no consultations with the Bar. Tun Hamid Omar (who replaced Salleh) was not on speaking terms with the Bar after it had passed a vote of no confidence against him.
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George: ‘If you appoint the right people, You don’t need some code to tell them how to behave’ |
Does it appear from the delayed appointments for the 2nd and 3rd positions in the judiciary that the Conference of Rulers had conducted their own background research on those nominated?
Shaik Daud: If we have a Judicial Commission, it would take care of that. With the backing of the law and proper guidelines, the commission would be able to do a good job. It could also take care of promotions. Now, you’re not promoted just because you’re senior. We have seen so many cases where seniors and seniors with merit are not promoted but juniors without merit are. The reason would appear to be they are being rewarded.
Vohrah: I disagree with the speculation of tensions between the rulers and the PM. Their role is a throwback to the Durbar (rulers’ conference) dating back to 1897. The Constitution provides for the rulers to call for papers and reports to help them reach a decision and a consultation should mean they also have the power to investigate.
I have seen you at social gatherings where lawyers were present but I have never heard allegations of impropriety made against you. How come?
Shaik Daud: Maybe because of the way we behave and the way we portray ourselves that tell people that we don’t entertain these things. If you want to have a party in your house I will attend but that’s it.
George: In those days there was a lot of free mingling between the Bar and the Bench – everyone knew their place, nobody took advantage of it and it never became an issue. Again, I stress the importance of appointing the right people.
Vohrah: I don’t know (laughs).
How effective has the Code of Ethics been?
Shaik Daud: It was drafted when I was there but it was never implemented as far as I know.
George: It’s an absolute waste of time. It comes back to the character of the person at his appointment. If you appoint the right people, they will do their job and you don’t need some code to tell them how to behave.
Many complaints don’t warrant a removal by a tribunal but do people need a forum to lodge minor complaints and for disciplinary action to be taken?
Vohrah: There was a move when Tun Dzaiddin (Abdullah) was CJ to do just that. I sat on a committee with Tan Sri Richard Malanjum (Chief Judge of Sabah and Sarawak) and others and we came up with recommendations for amending the Federal Constitution to deal with minor infractions using a code of conduct. I don’t know what happened after that.
But in 2005, Parliament did amend Article 125 of the Constitution so the CJ can “refer a judge who commits a breach of any provision of a code of ethics as prescribed by the Yang di-Pertuan Agong to a body constituted under federal law.”
There is a need for such a mechanism because the usual complaints are that judges don’t sit on time or postpone cases for the flimsiest of reasons. I have also heard complaints of judges shouting at lawyers or making inappropriate remarks.
Why don’t the lawyers ask the Bar Council to raise it with the judiciary?
Vohrah: I guess they fear reprisals that will affect their clients. It never used to be like this. This is the result of appointing the wrong or incompetent people to the Bench. I want to add here, however, that this only relates to a handful of judges. The majority are good and hardworking.
Are you in favour of a Judicial Commission?
George: I hope there will be an independent Judicial Commission to ensure an independent, incorruptible, and competent judiciary. I cannot stress more strongly the need to investigate and assess a person before they are appointed.
Merit is not an issue in deciding promotions if the person was of good quality, character and morality at selection.
Vohrah: Definitely. After Suhakam’s forum on the right to an expeditious and fair trial in 2005, we called for a commission in our report, saying the competency of judges had a bearing on the efficiency of the judicial system. I want to add that there have been some good people in the AG’s Chambers who should have been made judges but they were not appointed.
Shaik Daud: A Judicial Commission would be a good start (to restoring public confidence in the judiciary). It can enforce the code.
A panel of inquiry is investigating the video clip but do you think there is a need for a royal commission of inquiry to examine the affairs of the judiciary in light of all the complaints that have arisen since 1988?
George: The panel is only looking at one issue. I think the Bar is on the right track in calling for a royal commission to look into all aspects of the judiciary.
Vohrah: Yes. A royal commission could explore all aspects of the ills besetting the judiciary. The problems are far-reaching and something has to be done fairly quickly before the judiciary slides further down the track.
What do you say to de facto Law Minister Datuk Seri Nazri Aziz who insisted that everything was all right with the judiciary?
Vohrah: I think he’s probably not aware of what is happening on the ground. In many commercial contracts, parties are including an arbitration clause to resolve disputes instead of the courts. That is a terrible blow to the judiciary because apart from a handful, the rest are good judges. In some states, there may be three or four judges but you will find that only one or two are doing all the work and carrying the whole burden. Vohrah: ‘Judges should not be cowed by superior judges if their directions are not consonant with the principles of justice’Shaik Daud: ‘We have many cases where seniors and seniors with merit are not promoted but juniors without merit are’ George: ‘If you appoint the right people, You don’t need some code to tell them how to behave’
