Tuesday, August 21, 2018

Establishment of a Royal Commission of Inquiry into the Judiciary is Imperative to Restore and Protect the Integrity of the Judiciary - Malaysian Bar


Press Release
Establishment of a Royal Commission of Inquiry into the Judiciary is Imperative to Restore and Protect the Integrity of the Judiciary
The Malaysian Bar is alarmed over the recent revelationsmade by Justice Datuk Dr Haji Hamid Sultan bin Abu Backer, Judge of the Court of Appeal, which cast grave doubt on the integrity and independence of the Judiciary.  During his presentation as a panellist at the Malaysian Bar’s International Malaysia Law Conference 2018 (“the Conference”), His Lordship revealed that he had been “severely reprimanded” by a “top judge” for his dissenting judgment in the “Indira Gandhi” case at the Court of Appeal (Pathmanathan Krishnan v Indira Gandhi Mutho & other appeals [2016] 1 CLJ 911), and that he was subsequently not assigned or empanelled to hear cases relating to the Federal Constitution and public interest matters.

Any attempt by a top judge (or any other judge) to curtail the ability of other judges to exercise their autonomy in the performance of their judicial duties is an abuse of power, and represents a serious instance of judicial misconduct.  The reprimanding of a judge for a decision that was made based on the facts and the applicable laws, but that is not to the liking of the top judge, would undoubtedly send a warning signal to others within the Judiciary to conform and “toe the line”.  This would undoubtedly and unacceptably impinge on a judge’s ability to fulfil his or her duty as enshrined in section 5 of the Judges’ Code of Ethics 2009, which states as follows:
Upholding the integrity and independence of the judiciary
5.    A judge shall exercise his judicial function independently on the basis of his assessment of the facts and in accordance with his understanding of the law, free from any extraneous influence, inducement, pressure, threat or interference, direct or indirect from any quarter or for any reason.
The alleged incident begs the question as to the prevalence of interference of this nature into the independence of individual judges, and whether similar pressure has been brought to bear on other judges, especially in high-profile public interest cases, and cases involving the State.  

The Malaysian Bar thus calls for the immediate setting up of a Royal Commission of Inquiry (“RCI”) to investigate these serious assertions of judicial misconduct, as well as to recommend holistic reforms to improve and strengthen the Judiciary.  A thorough investigation needs to be undertaken to ascertain the facts and the extent of any interference in the ability of judges to make impartial decisions, as well as to put in place measures to ensure that no manner of coercion, influence or threat is ever brought to bear on any judge. 

In a timely reminder, Emeritus Professor Datuk Dr Hj Shad Saleem Faruqi expressed — at the 5th Raja Aziz Addruse Memorial Lecture during the Conference — that, in respect of judicial independence and impartiality, the “judicial winter that descended [as result of the 1988 judicial crisis] has not yet fully thawed”.  His remarks underscore the urgent need for an RCI to review the state of the Judiciary.

Judicial independence is sacrosanct, and forms the cornerstone of a fair and impartial Judiciary.  The spectre of judgments being tainted by undue pressure is very troubling — it severely undermines public confidence in the Judiciary, which has for some time been a matter of immense concern to the Malaysian Bar and the public.  It also unfairly casts aspersions on the integrity and reputation of all past and current Office Bearers of the Judiciary and Federal Court judges, and on the conscientious and scrupulous work of many good judges.

It is imperative that an RCI into the Judiciary be established without delay, and that it leave no stone unturned in carrying out its investigations and making recommendations in order to stamp out improper practices, and for the much-needed reform of the Judiciary.

George Varughese
Malaysian Bar
20 August 2018

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