Uprooting the Judiciary -A Critical Step in Killing off Ketuanan Melayu and Constitutional Government

SALLEH ABBAS ALL OVER AGAIN

The removal of a case from a presiding judge’s case list is interference in the judiciary and in the independence of the judiciary. There are some exceptions to this rule which is not found or adequately explained in the recent and controversial removal of the judge Mohd. Sofian Abdul Razak from the criminal matter against Datuk Seri Najib Razak former prime minister of Malaysia..

This is after all the Mahathir government once condemned by his most ardent supporters today including Ambiga Srinivasan for his ‘unconstitutional’ conduct in the removal of justice Salleh Abbas and a few of his fellow judges in 1988. Interfering with the judiciary is a Mahathir staple.

The Malaysian Bar who he has tamed like a pack of wild dogs after castration, appear to forget their condemnation of the man, and how that fits in with their adoration of the same unrepentant Mahathir two decades later. Reputation and honour it seems are not a hallmark of the ‘Honourable Profession’ in Malaysia. Quite the opposite.

REMOVING JUDGE MOHD SOFIAN- JUDGE SHOPPING

It is said that Judge Dato Mohd. Sofian Abdul Razak brother’s employment in the Pahang state government (the state Najib comes from) was grounds sufficient to justify his removal as presiding judge in the Najib trial handing it over instead to another judge Mohd Nazlan Mohd Ghazali.

Would such perceptions on irrelevant grounds as that cited for Mohd Sofian’s removal survive a proper recusal application in open court with all of the evidence put to the judge? After all the judge has a right to defend himself against a claim of perceived, actual or apprehended bias as anyone else charged with any civil or criminal offence has the right to? More importantly the defendant has as much a right to an impartial and fair tribunal unfettered by political considerations. But does Mahathir care about the separation of powers doctrine and the importance of an independent judiciary? Does the current Attorney General or the Malaysian Bar understand the dangers of this move? Me thinks not.

OF JUSTICE FAIRNESS AND THE RULE OF LAW

Malaysians it is said fought for decades for a cleaner, less ‘corrupt’, more democratic and merit based government. All of the recent evidence instead points to something less than a meritocracy, cleaner, transparent or more democratic government post 9 May 2018. As for more democracy and a meritocracy well this recent controversy demonstrates something clearly at variance with each of the concepts of merit and freedoms. Merit it seems has become a casualty instead of the criteria to be part of this government. This is but one of the more flawed and outrageous acts of a tyranny in the making.

It is true that, in the much cited quotes from Re JRL; Ex parte CJL, courts in more mature and uncorrupted jurisdictions have unequivocally expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice at least in Australia and the UK, the parties to litigation do not have an entitlement to engage in judge and tribunal shopping for “friendly judges” to conduct trials. The same principles must apply in Malaysia’s justice system derived from the UK.

RECUSALS AND REMOVAL

The duty to discharge judicial functions is always subject to any disqualifying conduct on the part of the judge subject to a recusal application. The judge the subject of a recusal application has the right to defend the allegations against him and to meet his accusers face to face in open court to hear the evidence against him (as opposed to conjecture and rumour) within the context of  the law.

To attempt to achieve what a recusal lawfully achieves and to do it without a formal recusal hearing, is to usurp the law and power of the courts by sleight of hand and to engage in a breach of the most fundamental tenet of justice: the right to be heard and the right to a defence in such circumstances.

The observations in Re JRL are a corrective to over-ready disqualification, a problem that has arisen in the removal of judge Mohd. Sofian in the trial of Najib Razak the former prime minister of Malaysia.

The prosecution acting properly should have made application for the judge Mohd. Sofian to recuse himself supplying all admissible evidence to support their claim against him. They instead tried the man by media, resorting to gossip and conjecture of the lowest kind to remove the judge from the case on the flimsiest of presumptive reasons. A new Attorney General is indeed in office. The law either completely misunderstood or beyond the comprehension of the current government.

This is the case here. Once the line was crossed, as it has been held to be, it cannot be repositioned by the fact that the judge, seemingly acting under sufferance because he was obliged to, submitted to the suggestion he was potentially conflicted, likely to show bias or just simply incompetent sufficient to be removed from the case.

What is seriously lacking in this arbitrary and unlawful move by, either the Chief Justice, or by the Attorney General, or by both men, is the principles of fairness, transparency and the right of judge Mohd. Sofian and defendant Najib Razak to be heard in any application to forcibly remove him from the case.

Remember, DS Najib too has a right to be heard in any recusal application involving a sitting judge in his case. He is not merely a silent defendant in his case as the Attorney General and the Chief Justice treat him as in this matter.

THE HUMAN RIGHTS PERSPECTIVE

A consideration that shows why the need for a proper recusal hearing is needed is the increasing recognition of the fact that the entitlement to an impartial tribunal is one of the most important human rights and fundamental freedoms recognised by international law.

Art 14.1 of the International Covenant on Civil and Political Rights is instructive on this point. If as Tommy Thomas, as legal practitioner and advocate for, a terrorist who sought to overthrow the Malayan state through use of unlawful force (Chin Peng), supported the position previously that Malaysia is bound by the Human Rights Convention; and if Malaysia is a party to that Covenant; and also to the First Optional Protocol that renders it accountable to the Human Rights Committee of the UN; then upon  a complaint alleging infractions, Malaysia must submit to the Human Rights Committee on the issue of denying Datuk Seri Najib  the right to be heard by an impartial tribunal as opposed to a government stacked bench.

Now the Protocol and Covenant is reinforced by a rule of international law which expresses the entitlement to an impartial tribunal as a fundamental right of the individual concerned. It is not simply an aspiration or guideline of good judicial practice. It is a basic right which the parties in this case have a right to.

WHY NOT A RECUSAL APPLICATION IN OPEN COURT?

Would it in these circumstances not be a better option for the Mahathir government and its poorly performing legal sector to file a motion seeking to have the judge recuse himself in open court rather than to remove the file from him on the basis of non-existent grounds for a recusal? As it is the reputation of Malaysia’s legal fraternity has been mortally wounded with its attacks on its former Chief Justice Fairuz on the weakest of arguments based on inadmissible possibly manufactured and unreliable document of evidence (the Lingham tapes) further reinforced by the “3 Blind Mice” retired judges on the commission appointed to authenticate the Lingham tapes.

SIMILAR PRINCIPLES

Applying the same principles the Attorney General has applied to Judge Mohd. Sofian the court is bound by its own rules to disqualify the Attorney General from appearing as prosecutor in a matter in which his role is more political than constitutional or impartial.

Impartial is not a word that could be attached to Thomas for his historical record of political and personal attacks against the defendant DS Najib and his government prior to its defeat. 

Taking this principle of sacking an individual because he served under a previous administration (or has a nexus to them however thin that may be), another step further would require sacking the entire civil and administrative services and the armed forces for their connection to the Najib government in having served under it for nearly a decade?

 

 

 

 

Comments
4 Responses to “Uprooting the Judiciary -A Critical Step in Killing off Ketuanan Melayu and Constitutional Government”
  1. Seeker says:

    I am still waiting for Tommy Thomas to re-open the V.K. Lingam case. More than bribery, this is the most shocking case of corruption Malaysia had seen thus far. I believe Tommy Thomas was sued by Vincent Tan and V.K. Lingam over the judicial rigging saga. Skrine & Co, and Tommy personally, were given an out of court settlement once the Lingam tape emerged.

    However, this was a private settlement between two opposing parties (V.K. Lingam and Vincent Tan on the one hand, and Skrine and Thomas on the other). This is a matter of national interest, particularly national security. A shrewd lawyer (there are none of them here) may claim that Lingam and Tan had paid Skrine and Thomas off to keep quiet. Ergo, this tantamounts to bribery.

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    • grkumar says:

      You do raise some very pertinent contemporary issues here which have gone largely unnoticed because it is covered by privilege and confidentiality arising from the agreements to settle without admissions by Thomas, Skrine and Tan. Tan is notorious for settling with his check book.

      Tan is Mahathir’s bagman. I do really hope that each of these men (if thats not stretching credibility too far) will find something in our writings here to sue us for.

      We will find a jurisdiction outside Malaysia (using Down Jones vs Joseph Gutnick) to decide where the matter should be heard and take them on.

      Vincent Tan has long been Mahathir’s bagman and the recipient of billions of ringgit of state money channeled through him and his companies to favoured parties directed by Mahathir.

      I would not go as far as calling the transactions bribery but I would rather see them for what they are i.e restriction on free speech on the one hand (an anomaly in the law f defamation) and the incompetence and sheer bullshit of lawyers at Skrine and in particular a lawyer like Tommy Thomas.

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      • Seeker says:

        If you are getting sued at a foreign jurisdiction, then you can claim it was bribery or inducement to perpetuate a corrupt system and/or deny justice to the nation. Skrine and Thomas allowed Vincent Tan and V.K. Lingam to get away with the most appalling instance of corruption in Malaysian history. During the first inquest in question, Mahathir claimed that he could not remember anything.

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