Sunday, July 9, 2006

Corruption will slay the innocent

GEORGE Washington, the first President of the United States, once described the judiciary as "the firmest pillar of government".

In other words, of the three pillars of government, namely the legislature, executive and judiciary, the last-named is the pivotal pillar that supports democracy and the rule of law.

In our country, I cannot stress how important the role of the judicial branch is in defending the Federal Constitution as the supreme law of the land because our courts have the power to nullify any law passed by Parliament after Merdeka Day, which is inconsistent with the Constitution.

This explains why, when our judges are appointed, they take an oath to bear true faith and allegiance to Malaysia and to preserve, protect and defend the Constitution.

It is therefore worrying to read about judicial corruption, a topic which has been dominating our newspapers in recent weeks.

It is worrying because if there is indeed any truth in any allegation of judicial corruption, this firmest pillar which is supposed to preserve, protect and defend the Constitution will crack and ultimately collapse.

But judicial corruption is not just exclusive of a particular country. It is an insidious disease capable of pervading any country if left unchecked.

In one of his extra-judicial writings in 2001 entitled Tackling Judicial Corruption — Globally, Justice Michael Kirby of the High Court of Australia wrote: "In the days of the British Empire, the spectre of a corrupt judge or magistrate was so horrible that it could largely be dismissed as impossible.

"The judicial traditions had a strong ethos of honesty and integrity. A judge on the take was unthinkable.

"The problems of the judiciary were different: Laziness, bad temper, dilatoriness, ignorance of the law, prejudice.

"Financial corruption was out of the question, although it was not unknown for judges sometimes to be corrupted intellectually by ambition, the hope of promotion or the prayer for a title.

"Nowadays, this fundamental assumption of the legal profession cannot always be taken for granted in every country of the Commonwealth of Nations, still less of the whole world.

"The international principles of human rights may promise that the judge shall be competent, independent and impartial. But in many countries, especially in the lower judiciary, corruption is sadly a way of life.

"Insidiously, it has invaded the judicial seat. It has intruded into court registries. Without a ‘tip’, a file may be lost and will never make its way to a hearing. Without a bribe, a favourable decision may not be assured."

Indeed in the days before the time of Tun Mohamed Eusoff Chin (who was the Chief Justice from 1994 to 2000), venal allegations against our judiciary were almost unheard of.

But during his time, the most talked-about allegation of judicial graft was that contained in a 33-page pamphlet written by a High Court judge, Datuk Syed Ahmad Idid.

This missive later caused Syed Ahmad to resign on July 1, 1996. In it, there were 112 allegations: 39 of corruption, 21 pertaining to abuse of power, and 52 of personal misconduct, immorality or other indiscretions.

On March 15, 1996, when ordering an investigation into the matter, the then Attorney-General Tan Sri Mohtar Abdullah was quoted by the New Straits Times a day later to have said: "The investigation is aimed at striking at the venomous elements who are out to discredit the judiciary and subvert justice in our beloved country.

"As Attorney-General and Public Prosecutor, it is my duty and responsibility to ensure that the judiciary and the legal profession be cleansed of these treacherous elements who, by their vile, insidious, devious, and scurrilous allegation in this pamphlet had sought to undermine the integrity of the judiciary and administration of justice in this country.

"Today is the Ides of March. But unlike that fateful day in ancient Rome where the brutish beasts succeeded in killing Caesar, today we launch this pre-emptive strike at these conspirators and Insya Allah, we will ferret them out, whoever they are, and bring them to justice."

Then on July 9, 1996, Mohtar announced the completion of the investigation and revealed that the police and the Anti-Corruption Agency had questioned 12 top judges, including Eusoff, and had also examined their assets.

But Mohtar said the police had found the judges clean, adding that the matter had been closed with Syed Ahmad’s resignation, which was sufficient punishment for him.

Mohtar was also quoted to have said: "I hope the integrity and impartiality of the judiciary will not be doubted henceforth."

But the Bar Council did not think so. It immediately called upon Mohtar to review these complaints from the standpoint not only of criminal wrong, but whether they disclosed grounds of judicial misconduct rendering a judge unfit for office. But Mohtar was not moved.

To my mind, such a decision undermined the integrity and impartiality of our judiciary. Mohtar’s Ides of March statement at the commencement of the investigation made it crystal clear that it was actually aimed at identifying the authorship of the allegations.

In his words, what was launched on March 15, 1996 was his "pre-emptive strike" at the "treacherous elements" in the judiciary and legal profession who had authored the "vile, insidious, devious, and scurrilous" allegations.

That is why it is correct for the Bar Council, former Chief Judge of Malaya Tan Sri Anuar Zainal Abidin, former Court of Appeal judge Datuk Shaikh Daud Md Ismail and many other senior lawyers to now call for the allegations to be investigated again. After all, there is no limitation period for prosecuting and punishing criminal wrongs.

In fact, some of the allegations in the pamphlet cast aspersions on judges who appeared to have an impeccable record of integrity and are known to be incorruptible.

I do not know whether that was the writer’s ploy to avoid being identified, but when the name of a good judge is maligned, we owe it to him to have his reputation restored so that whoever appears before him will not doubt his judicial integrity and impartiality.

It follows that if at all any of the allegations against the judiciary is found to be untrue and calumniatory, Syed Ahmad should also face the legal consequences of his action.

Resignation might be a sufficient punishment for him, but it could not undo the damage he did to the Malaysian judiciary.

Likewise, if the allegations are true and action is taken, this will no doubt repair and re-strengthen the damaged pillar of justice while at the same time undo the injustice caused to Syed Ahmad.

The other report of alleged judicial corruption was related in a court proceeding at the Muar High Court on April 22, 2005. The case involved a deceased lawyer and four others who were accused of murder.

One of the prosecution witnesses, a court clerk, gave evidence on the role he played in "shopping for judges".

The New Straits Times on April 23, 2005 reported that the deceased lawyer had told the witness that he wanted a certain panel to hear the appeal.

The presiding High Court judge then immediately ordered a media blackout of the evidence before the court on the grounds that it would be unfair to allow the publication of names of persons who had yet to be implicated.

Most cases involving judicial corruption reported in other countries normally involve corrupt lawyers who acted as intermediaries between the litigant and the corrupt judge.

In some cases, family members of the corrupt judges were also involved. More often than not, the litigants would not know how much had been paid to the judges or pocketed by the corrupt lawyers as there was no direct contact between the litigants and the judges.

Such perfidious complicity between a lawyer and a judge stinks to high heaven.

Therefore, the allegations by Syed Ahmad and the court clerk in the Muar case were indeed troubling.

Allegations of judicial corruption are very serious, and every such allegation must be investigated thoroughly and not swept under the carpet so that the citizenry will continue to have faith in the administration of justice.

In fact, judicial corruption threatens not only judicial independence but also the rule of law. It saps our nation’s soul. It saps our spirit as a nation in coming to grips with governmental corruption when this firmest pillar should have been in the forefront in the fight against this evil.

We must devise a fail-safe mechanism to ensure that corruption does not seep into the administration of justice.

Eradicating judicial graft is the joint responsibility of all stakeholders in the administration of justice — the judges, lawyers, litigants, government, legislature, the community and the media.

It is of cardinal importance that judges and members of the legal profession are imbued with strong ethical values of honesty and integrity.

We must perpetuate a culture whereby any bribe will be met with such public revulsion that public shame will deter any thought of bribery in the administration of justice.

All said, the problem lies with the person who sits in the seat of justice.

Corruption cannot be exterminated by having more than one judge to hear the case or replacing bench trials with jury trials.

At the end of the day, a corrupt judge, a corrupt lawyer or a corrupt juror will always have this innate inclination for ill-gotten and quick enrichment.

The Chinese have a proverb which says: "Though the sword of justice is sharp, it will not slay the innocent."

But let me tell you, the innocent man will still be slain if the swordsman is corrupt.

For this reason and as proven elsewhere, the establishment of a Judicial Appointments Commission in sieving through judicial appointees is still the most effective way to arrest judicial graft.

No comments:

Post a Comment