Wednesday, June 11, 2008

JUDGES should NEVER be affected by threats and promises...

Now our Judges must be brave and must perform their duties as JUDGES without fear or favour taking into consideration only the need to do Justice. They must not be affected by threats, promises and/or anything else. We have seen many junior Judges elevated to higher courts speedily - and there has been wonder whether this was the way the government of the day (through the Prime Minister) was paying them back for the services that they rendered by making a judgment in the way the government wanted it in some selected cases.

There are safeguards that have been placed to ensure the "independence" of Judges - and this includes the security of tenure (i.e. until their retirement age, with an extremely difficult "earlier temination" process which is rarely used - the last time it was used was in during the 1988 Judicial Crisis.), that Consolidated Fund which guarantees that salaries/allowances due to Judges are paid in time (irrespective even if government coffers are empty or drying up)....

Now, I believe that if a Judge feels that some persons are doing things to undermine the independence of the Judiciary -- then he is duty bound to do something about it and make it known immediately - not so many years later. But then, maybe these threats, requests, promises and gifts may be happening every now and then, so much so a Judge is already "immune" to these corrupting diseases and is strong enough to be not affected by them - he may just ignore it. I wouldn't be surprised if all Judges may have been approached with threats or goodies to decide on some cases this way and that way at least once during their career on the bench - BUT have been strong to REPEL this advances and continue on doing the job as Judges. I feel that today, it must be compulsory that Judges report immediately of any such attempt or even perceived attempt to some body who could investigate it, and take action against those that try to undermine our judiciary.

The Prime Minister and the Government may express that they want judges to toe the line, and he did do so very openly. Dr Mahathir was reported in the 24 November 1986 issue of Time magazine, as saying:O“The Judiciary says, ‘Although you passed a law with certain thing in mind, we think that your mind is wrong , and we want to give our intepretation.’ If we disagree, the courts say, ‘We will intepret your disagreement.’ If we go along, we are going to lose our power of legislation. We know exactly what we want to do, but once we do it, it is intepreted in a different way, and we have no means to intepret it our way. If we find that a court always throws us out on its own intepretation, if it inteprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish.”

f course, Dr Mahathir did also in a speech made at the opening ceremony of the Asean Law Association General Assembly on 26 October 1982, he had this to say about the Malaysian Judiciary:- “I will always respect the Judiciary. We do not expect the courts to be pro or anti Government, only pro the Constitution and pro the law. The Government always considers the Constitution and the law carefully before we do anything so we expect the Judiciary to be free to judge our alleged trespasses without fear or favour, but in accordance with the law, in accordance with the law of evidence and procedure justly and fairly. We shall always respect their judgments...”

Although, many would say that it was not proper for the Prime Minister (and/or the government) to say such things OR express such wishes/hopes OR make such threats, at the end of the day, the ball really, is in the individual Judge's court - what do you do, My Judge?

Honourable Judge, do not come back many years later, and say that I made such a judgment because there was a threat or some directive or some "orders from above" - that is not acceptable.

You are a Judge appointed by the King, and you only have to do your duty as Judge - and if you cannot do that, then you have no other choice BUT to resign.

Being asked to go to a "boot-camp", you have the choice to refuse to go ..... or even to leave when you find out that something is not right.

Being asked to go for a "holiday" or a "party" --- you have the choice to say NO - as it is conduct that may bring about a perception that the judiciary (or me, the Judge) is biased and no more independent.

A judge's independence cannot be affected by any other person - be he the King, the Prime Minister, the Chief Judge, the Lord President, the president of MIC, some Lingam lawyer, etc-- and Judges should KNOW this.

At the same time, it is NOT wrong to attend some meeting or conference or boot camp and have some person there say that Judges must be pro-Government, or anti- government, pro-environment or anti-environment, pro-Israel or anti-Israel, pro-Islam or anti-Islam --- There is nothing wrong with listening, getting inputs on various positions, etc..... But at the end of the day, when sitting as a Judge, the only consideration is that justice be done......FULL STOP.

Pro-government and government policies "brain-washing" continuously happens through the media, amongst others, in any country, and as such it is important that Judges also do expose themselves to opposing and other viewpoints on a particular subject matter. This exposure is essential -- and it will make a Judge more holistic and better equipped to be a Judge. Judges should not just be influenced by earlier judgments of their peers, or higher courts in this Jurisdiction or that jurisdiction - BUT should also be influenced by other thoughts and viewpoints.

At the end of the day, I say CONGRATS to Ian Chin for highlighting this matters - which would have been better if it had been highlighted before. To be fair, the matter about that DIRECTIVE from the chief judge was highlighted so much earlier - is that Judge still around?

Now, let us not again start focussing too much on the happenings in the past, the former Prime Minister, that former Chief Judge -- we have to look at TODAY, and do the needful to ensure that things are right from now onwards...

Our government and the Prime Minister would really love to re-focus our attention on his predecessor -- who now today is a serious critic of the current Prime Minister.


'Dr M threatened judges...'
Judge's stunning allegation in court
Datuk Ian Chin.
Datuk Ian Chin.

SIBU: A High Court judge here has alleged that Tun Dr Mahathir Mohamad threatened to punish the judiciary in 1997 for decisions he disliked.

Tun Dr Mahathir Mohamad.
Tun Dr Mahathir Mohamad.
Justice Datuk Ian Chin, 60, is the most senior of the 48 High Court judges in the country.

He made the stunning allegation at the start of proceedings on Monday when hearing an election petition filed by Wong Hus She, the defeated DAP candidate for the Sarikei parliamentary seat, the Borneo Post reported.

Anticipating a motion for his recusal, Chin took the "step to disclose what the parties and counsel may not be aware of but which they may later complain that I should have disclosed".

Wong lost the Sarikei seat to Barisan Nasional's Ding Kuong Hing by 51 votes.
Both sides did not object to Chin as the presiding judge, the Borneo Post reported.

He referred to two cases he had presided over in February 1997 - a libel suit and an election petition - the decisions with which the then prime minister was apparently displeased, he said.

He said Dr Mahathir had gone to the judges' conference about a month later "to issue a thinly veiled threat to remove judges by referring to the tribunal that was set up before".

From May 26 until 30, he was "packed off to boot camp" for lessons on taking the government line in judicial decisions.

Last month, the Royal Commission of Inquiry into the Lingam video clip castigated Dr Mahathir for going against the Constitution in appointing judges and called for an investigation into Dr Mahathir.

According to the notes of proceedings made available to the New Straits Times, Chin said in the libel suit: "I distinguished M.G.G. Pillai v Tan Sri Datuk Vincent Tan Chee Yioun & Other Appeals (1995) 2 MLJ 493 and refused to give what I consider to be an astronomical award for damage to reputation in libel cases".

In the election petition, he had set aside the victory of BN's Mong Dagang in the 1996 state polls in the Bukit Begunan seat.

Chin said Dr Mahathir had "expressed unhappiness" over the decision.

"After he was done with issuing that threat, he then proceeded to express his view that people should pay heavily for libel.

"He managed to get a single response from a Court of Appeal judge who asked whether he would be happy with a sum of RM1 million as damages for libel.

"He approved of it and he later on made known his satisfaction by promoting this judge (since deceased) to the Federal Court over many others who were senior to him when a vacancy arose."

Chin said he was "devastated" by what went on but was consoled by fellow judges who remarked "the prime minister was too much".

"It will be recalled that the prime minister not long after he assumed office had said, in a much publicised campaign against corruption, that he will put the fear of God in man but this apparently, given his diatribe in that conference, changed to instilling a fear of him if any judgment is to his dislike."

He said the "boot camp" he attended with selected judges and judicial officers was "an attempt to indoctrinate those attending to hold the view that the government's interest" was "more important than all else when we are considering our judgments".

"Stating this devilish notion was no less a person than the president of the Court of Appeal," he said.

"The perversion of justice did not stop there. My brother judge (Datuk Muhammad) Kamil Awang was one morning looking for me after clocking in. We were both then serving in Kuching.

"When I met him in his chambers, he was distraught and he told me about receiving a telephone call the night before from the chief justice asking him to dismiss the election petition that he was going to hear in Kota Kinabalu.

"He sought my opinion as to what to do about the telephone call.

"We went into the possibility of making a police report or of writing to the chief justice a letter to record what he had said over the telephone but in the end, he decided against it since it would be his word against that of the chief justice," Chin said.

"I was happy to learn later on that he did not bow to the pressure by the chief justice and went on to hear the petition and thereafter, making a decision based on the law and evidence."

Chin also declared that he had twice stood unsuccessfully for election as a BN candidate in the 1980s, in one of which he lost to the DAP. He had also heard other election petitions.

"Now, though no longer the prime minister and so no longer able to carry out his threat to remove judges which should, therefore, dispel any fear which any judge may have of him, if ever there was such fear, nevertheless the coalition party that he led is still around and the second respondent won on a ticket of that coalition party and it may cross someone's mind that I may have an axe to grind against the party concerned or any member thereof.

"The petitioner in this case may also have a similar view with regard to my defeat by a candidate standing on the ticket of the party to which he belongs.

"So I wish to hear from the parties as to whether they entertain any such notion and whether they wish to apply for my recusal so that, if any, I can make a decision thereon.

"After this disclosure, litigants who were affected by the hundreds of judgments that I handed down since those infamous days may justifiably worry as to whether any of my judgments were in any way influenced by this attempt to hang the Sword of Damocles over my head.

"No amount of words from me would assuage you of your worry; you will have to read my judgments as to whether they are according to the evidence and the law or whether they were influenced by threat."

Chin then adjourned for half an hour to let the parties consider an application for his recusal.

None, however, was made.

Datuk Ian Chin was appointed judicial commissioner on Feb 26, 1992 and since then has served in the High Court in Sabah and Sarawak. He is, at present, a resident judge at the High Court in Kota Kinabalu.

No comment from Dr M

Tun Dr Mahathir Mohamad will not respond to the allegations made by a High Court judge anytime soon.

In a SMS sent to the New Straits Times, Dr Mahathir's aide, Sufi Yusoff, said the former prime minister would respond 'in due time, if at all' to the allegations by Datuk Ian Chin yesterday.

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