Judicial Crisis hitting its top:

Time for CJ to re-instil confidence by calling for RCI

 by ARUN KASI, Advocate and Solicitor

Background in outline

Malaysia is currently going through a judicial crisis, following events that took place since the IMLC 2018, that is looking forward to RCI coming into play to clean any negative perception and to restore confidence.

The current ‘2018 Judicial Crisis’ markedly started with Hamid Sultan (a sitting Court of Appeal judge) revealing, during the IMLC 2018, that he was severally reprimanded by a top judge and cold-stored since he gave a dissenting judgment in the popular conversion case of Indira Ghandi. The majority decision in that case was that of Balia Yusof and Badariah Sahamid. Balia Yusof is now a judge of the Federal Court.

That was followed by late Karpal Singh‘s lawyer Mohamed Haniff Khatri Abdulla claiming that the supposed decision in later Karpal’s sedition appeal (second appeal againt conviction) two years ago was altered due to judicial interference by a senior judge. This was followed by Karpal’s daughter Sangeet lodging a police report on that.

Prior to both the above events, Dato Seri Anwar Ibrahim was pardoned by the YDPA upon Anwar’s petition importantly grounded on “miscarriage of justice” in his sodomy appeal. Leaving aside conviction, the sentence of 5 years’ imprisonment awarded in Anwar’s sodomy appeal was unprecedented for an offence of this nature. This allegation of “miscarriage of justice” that resulted in a Royal pardon is serious enough for the AG to investigate it with a view to charging those responsible for it for treason, if the allegation is found to be substantiated.

That was not all about the negative perception. Apandi Ali, who was made a Federal Court Judge, after sitting in some of the above said appeal that contributed to the negative perception, was appointed as the AG during the 1MDB controversial era. He quickly cleared the then PM of all 1MDB accusations. This took a 180 degree turn when new government came into power. Added to them were the perceptions created in some of the electoral boundary cases.

Karpal’s case

In Karpal’s sedition case, the High Court first acquitted Karpal without defence case being called for reason that prosecution failing to prove a prima facie case. The prosecution appealed to the Court of Appeal. The corum was Ahmad Maarop, Clemet Skinner and Mohamed Apandi Ali. The corum reversed the decision of the High Court and remitted the case back to call defence case. Currently Ahmad Maarop is a judge of the Federal Court and the President of the Court of Appeal.

At the second round, the High Court convicted Karpal. On appeal againt the conviction, the Court of Appeal affirmed the conviction by a majority of 2:1. The corum was Mohtarudin Baki, Tungku Maimun and Kamardin Hashim. The complaint made by Mohamed Haniff Khatri Abdulla was that a “senior judge” meddled with the majority decision. The majority decision was by Mohtarudin Baki and Kamarudin Hashim, dissented by Tungku Maimun. Currently all of them are judges of the Federal Court.

A negative perception over the second appeal may also extend to the first appeal, in which the Court of Appeal ordered the defence case to be called. That is particularly so, looking at the wide definition for sedition given by the Court of Appeal. This decision in effect brought the freedom of speech within a very narrow boundary in Malaysia. Many politicians, after this decision, were charged and convicted for sedition.

It must be noted that freedom of speech is a specie guaranteed by the Federal Constitution in article 10. It must also be noted that the constitutional oath taken by a judge includes an oath to preserve, protect and defend the Constitution.

Anwar’s case

In Anwar’s sodomy case, he was acquitted by the High Court after full trial. On appeal, the Court of Appeal unanimously convicted him and sentenced him to 5 years’ imprisonment.

The Court of Appeal corum was Balia Yusof, Aziah Ali and Mohd Zawawi Salleh, delivering unanimous decision of the Court of Appeal. All of them have subsequently been elevated and are now Federal Court judges. Karpal’s appeal to the Federal Court was dismissed, along with dismissal of the cross-appeal by the prosecution against the sentence.

Conclusion

In totality, the perception the above decisions might have created was that there might be a political setting of appellate decisions and fixing of corums to achieve desired result. In the Indira Ghandi case, Hamid Sultan said one can predict the decision looking at the corum in public interest litigations. Such a perception may be corroborated with a number of facts, particularly revealed by Hamid Sultan during his speech in IMLC 2018.

Hamid Sultan said many judges take the easy route to elevation and post retirement rewards. He said he was not assigned to hear public interest litigations, after Indira Ghandi case. This is an audacity that the then top judges responsible for assigning cases must explain. This is glaring because he was one of the senior most judges, but kept out from public interest cases. He also claimed that it was no surprise to him that the judges committed to judicial dynamism such as Mah Weng Kwai (now retired), Mohamad Ariff Mohd Yusof (now Speaker of Parliament) and Mohd Hishamuddin Mohd Yunus (now retired) were not elevated to the Federal Court because of their commitment to their oath of office. The perception that this claim may create in the public is that an elevation could be a reward for some favouritism.

There may be many things that judges have got to say, but which they could not be expected to say except to RCI. In view of the current crisis and its seriousness, RCI is now imperative, without which the negative perception cannot be cleared.

Many of the judges who sat in the above said judgments have subsequently been elevated to the Federal Court and now sit in the Federal Court. This is time for our CJ, in whom the new government has now placed the ultimate confidence, to step in to show his firm commitment to clean up any negative perception by calling for RCI and freezing the Federal Court sittings in the interim pending RCI result, except to hear any urgent matters. Such an action will help immediately re-instil the public confidence.

The cases heard by Federal Court are very limited in view of restrictions in appeals to the Federal Court, unlike appeals to the Court of Appeal. Hence, freezing the Federal Court sittings pending an investigation will not be something unmanageable .