Mourning a great leader

The Sunday Star

Legally Speaking by Roger Tan 

IN MEMORY: Sunday Star columnist Roger Tan paying tribute to the late Singapore founding father Lee Kuan Yew in the condolence book at the Singapore High Commission in Kuala Lumpur.

Spontaneous and emotional outpouring of grief by Singaporeans is indeed a testament to Lee Kuan Yew’s extraordinary achievement in creating a united nation out of a divided, polyglot, multi-racial and multi-religious population.

THE fact that today our Yang di-Pertuan Agong will represent Malaysia at Lee Kuan Yew’s funeral – an epochal event in the history of Singapore – speaks volumes of the island’s founding father as the greatest statesman in South-East Asia. 

In fact, President Richard Nixon held him up as a leader of similar stature as Winston Churchill. Most importantly, Lee was also instrumental in the formation of Malaysia and hence he and a generation of Singaporeans were once, albeit briefly, Malaysians between 1963 and 1965. 

Born on Sept 16, 1923, Lee read law at Cambridge University and obtained a starred double first and started practising as a lawyer in 1950 for almost a decade. As a legal assistant, he took up cases for trade unions, often on a pro bono basis. This undoubtedly helped him later to generate mass support for him when he became prime minister in 1959. 

Almost half a million Singaporeans have already turned up at Parliament House and the 18 community tribute sites to pay their last respects to the nonagenarian. Thousands more did not mind queuing for up to 10 hours the night before in order to reach the Parliament House where the body is lying in state. 

This spontaneous and emotional outpouring of grief by Singaporeans is indeed a testament to Lee’s extraordinary achievement in creating a united nation out of a divided, polyglot, multi-racial and multi-religious population. It is ironic that someone who had believed in Machiavelli, making him the most feared person in Singapore, is now someone who is most loved by his people. It is understandable that Singaporeans’ biggest regret is that their founding father would not be there on Aug 9 for their 50th national day celebrations. 

Lee was indeed a great leader in every sense of the word. He was humble enough to say sorry if he was wrong and if it was in the best interest of his county to do so. Hence, he had apologised to Malaysia a few times for some of his acerbic comments. 

He was also a first-class diplomat whose advice was often sought by leaders of superpowers even though he was just the head of “a little red dot” on the world map. 

A bargain for justice

The authorities must always bear in mind that when implementing plea bargaining, the system is open to possible abuses. It is important to ensure the system is more advantageous than disadvantageous for all the stakeholders in our criminal justice system to practise it.

CHIEF Justice Tun Zaki Azmi announced on Monday that plea bargaining will be implemented soon. The plea bargaining will allow those who plead guilty to serve a prison term which is not more than half of the maximum punishment imposed under the law for the offence for which an accused has been convicted.

This is made possible after Parliament passed the Criminal Procedure Code (Amendment) Act 2010 (Act A1378). Royal assent was obtained on June 2, and Act A1378 was gazetted on June 10. It will now come into operation on the date to be fixed by Home Minister Datuk Seri Hishammuddin Tun Hussein.

What then is a plea bargain? In simple terms, it is an agreement reached after negotiation between the prosecutor and the accused in a criminal case whereby, if the accused agrees to plead guilty, the prosecutor will reduce the original criminal charge to a lesser charge or withdraw any other remaining charges or the accused will receive a lighter sentence if he faces the original criminal charge.

It is said that plea bargaining existed as far back as 1485 involving an English statute prohibiting unlawful hunting. The statute stated that an accused would be convicted only of a summary offence if he pleaded guilty; otherwise, he would be charged with a felony offence punishable by imprisonment.

In Malaysia, plea bargaining hitherto is done in an indirect way whereby the accused’s counsel will make representation to the Public Prosecutor to reduce the charge, for example, from a murder charge to a charge of culpable homicide not amounting to murder if the accused pleads guilty.

However, the court is not involved in this process, and sentencing remains the sole prerogative of the presiding judge. As put trenchantly by Justice Wan Yahya in New Tuck Shen v Public Prosecutor (1982):

“This court does not consider it bound by the private bargaining between the prosecution and the defence in respect of which bargaining it is not a party and in which it has been judicially prohibited to participate. The right to impose punishment on a guilty party is absolutely the discretion of the court. It will exercise that power judicially but will not tolerate any encroachment or even semblance of encroachment either by the prosecution or the defence in respect of such right.

“An agreement between the prosecution and the defence as to the nature of sentence to be imposed on the accused creates no obligation on the court and is good only for pricking the conscience of the defaulting party.”

In fact, this is still the current position practised in common law jurisdictions such as England, Canada and Singapore, albeit plea bargaining is now statutorily permitted in Pakistan and India since 1999 and 2006, respectively.

A system that breeds misdeeds and corruption

I welcome the statement from the Menteri Besar of Selangor, Datuk Seri Dr Mohd Khir Toyo yesterday (“Khir: Zakaria told to resign before audience” - NST, Oct 31) that the MB wanted more professionals to serve on local councils.

However, he said the Local Government Act 1976 (“Act 171”) had to be first amended.

In my opinion, no amendment to Act 171 is required in order to appoint professionals who are residents of the local authority area as councillors. Section 10(2) of Act 171 is clear, that is, the state authority may appoint persons who in its opinion have achieved “distinction in any profession”.

If the Selangor state authority is unsure of this, then it should consult the National Council for Local Government set up under article 95A of the Federal Constitution.

The Article states that the federal government or any state government may consult the National Council for Local Government in respect of any matter relating to local government and its duty is to advise that government on any such matter.

Article 95A(5) also provides that it is the duty of the National Council for Local Government to formulate from time to time in consultation with the federal government and the state governments a national policy for the promotion, development and control of local government throughout the Federation and for the administration of any laws relating thereto; and the federal and state governments shall follow the formulated policy.

In fact, the National Council for Local Government is no ordinary body as it is chaired by the deputy prime minister and each state is often represented by its Chief Minister. This is the body, in my view, which should immediately sit down and formulate guidelines on the appointment and re-appointment of councillors within the ambit of section 10(2) of Act 171.

As I said in my article on Sunday (“Do laws grind the poor, and rich men rule the law?”), any state government which decides not to comply with the policy formulated by the National Council for Local Government may risk losing financial grants and loans from the federal government.

Further, if state governments cannot get their act together in effectively supervising and managing their local authorities, then the time will come when the federal government may have to assume more power and control over them.

Provisions are provided by removing ‘local government’ matters from the state list under the Ninth Schedule to the Federal Constitution and placing it under the concurrent list.

In any event, appointing professionals such as architects, engineers, surveyors, lawyers and doctors who are free from any political affiliations or personal interest to sit on the council is a step in the right direction.

It will not only form a check and balance on the manner in which powers and duties of local authority are carried out, but it also promotes good governance in local administration. It is akin to appointing independent directors to public listed companies.

Of course, professionals are not free from some of the perils of holding public office – the temptation of succumbing to corruption and self-aggrandisement.

To avoid accusations of favouritism or other sorts of improper conduct in appointing certain professionals, it is always good practice to first get their respective professional organisations to make the recommendations.

Again, the test is that the person to be appointed must have achieved professional distinction – and not those professionals who are already on the advisory panel of the local authority.

But, in practice, many professionals will be unwilling to serve because it means that their firms are prohibited from acting for the local authority, and they may also have to recuse themselves each time a matter handled by their firm arises for deliberation. This is provided for in section 35 of Act 171 which reads: “No councillor shall by himself or his partner or agent act in any professional capacity for or against the local authority of which he is a councillor.”

All said, it is still a good move to allocate two or three seats in each local authority for independent persons, such as professionals, to sit on the councils.

In the case of Datuk Zakaria Mat Deros, I could not agree more with the view of Umno vice-president, Tan Sri Muhyiddin Yassin (‘He may have tainted party’ - NST Oct 31), that elected representatives should not hold the post of municipal councillor. (Zakaria is also the state assemblyman for Port Klang.)

Muhyiddin cited Johor as an example where if one was an assemblyman or Member of Parliament, there was no necessity for him to sit in municipal councils.

He went on to say that by allowing others, such as party leaders, from the lower ranks who are not elected representatives to be local councillors, there would be better division of labour, more focus on responsibilities and no conflict of interest.

Muhyiddin was most spot-on in this issue, which is one of a conflict of interest.

This reminds me of 1980 when the menteri besar and state government of Perak were taken to court by an opposition leader, Lim Cho Hock, because the Perak state authority appointed the menteri besar as president of the Ipoh Municipal Council.

It was contended that the appointment would put the menteri besar in a conflict situation when it came to the latter exercising his powers under sections 10(7) and 165(1) of Act 171. Even though Lim failed in the action, the practice of a menteri besar also holding the post of president of municipal council, since that case, has always been frowned upon.

Article 64(1)(b) of the Selangor state constitution provides that a state assemblyman is disqualified if he holds an ‘office of profit’.

Even though an election court had ruled before that holding a position in the local authority did not fall within the meaning of ‘office of profit’ (see Lee Hie Kui @ Eric Lee v Song Swee Guan & Anor, 1998), it is, I am sure, the general view that the practice of vesting too much power in one person should always be discouraged as one should always take heed of the oft-repeated words of Lord Acton: “Power tends to corrupt, and absolute power corrupts absolutely.”

Moreover, the state assemblyman may find himself in a conflict situation if the conduct of the local authority of which he is also a councillor is debated in the State Legislative Assembly. Again, this can be another policy which the National Council for Local Government should formulate.

It is the hope of many that all local authorities will practise good governance when administering the affairs of their local authority area, always asking whether their actions will protect and benefit the local community.

May they always be guided by the definition of good governance enunciated by the United Nations Economic and Social Commission for Asia and the Pacific:

“Good governance has eight major characteristics. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It assures that corruption is minimised, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of society.”

Do laws grind the poor, and rich men rule the law?

I have written before that “be you never so high, the law is above you” (NST, Jan 29).

So it is always dispiriting to find out whenever this fundamental principle of the rule of law is disregarded by the influential, rich, well-connected and the powerful with impunity.

The topical case before us is the two councillors of the Klang Municipal Council (MPK) who were reported to be erecting their mansions without any approval.

It was reported that for this contravention of planning and building laws, councillor Datuk Zakaria Mat Deros was only slapped with a fine of RM24,000 which has been described as the maximum fine permitted under the law.

Zakaria, who is also the Port Klang state assemblyman, was reported to have blamed his former architect for not first getting the necessary approval.

It was also reported that Zakaria also owns a restaurant in Port Klang which had recently been found to be unlicensed, and that council enforcement officers actually demolished a rival restaurant for minor infractions but took no action instead against Zakaria’s unlicensed restaurant.

Meanwhile, the other MPK councillor, Mazlynoor Abdul Latiff, openly admitted that he was also building his mansion at Kampung Raja Uda in Jalan Lengkungan without any approval.

He even had the audacity to claim, as reported, that other councillors had also built their mansions, much bigger ones, within the same area without building plans.

Mazlynoor revealed that he had, in fact, submitted a plan to MPK’s planning department in 2005, but it was returned to him as it did not conform to the sewerage infrastructure.

He added that as it involved costs, he went ahead with the construction and that he would submit the plans after Hari Raya.

So the fact remains that the development and construction of his mansion took place without any approval.

At the same time, the Menteri Besar of Selangor Datuk Seri Dr Mohd Khir Toyo had also referred the matter involving the appointments of Zakaria, his son Zainuri and his daughter-in-law Roselinda Abdul Jamil as Klang councillors to the Selangor Umno liaison committee.

This whole affair about the MPK councillors is now not only becoming a farce, but has raised three very troubling issues:

• Is the RM24,000 fine the only punishment MPK can mete out to Zakaria?

• Why do these two councillors have such scant regard for the laws which they are actually entrusted to enforce?

• Is there something wrong with the law, particularly in the manner in which we regulate our system of local government?

In my opinion, a fine of RM24,000 is not the only penalty which can be imposed against Zakaria for contravening the laws especially when it was also reported that no planning permission had been given.

It was therefore surprising that MPK did not take any action against Zakaria either under the Street, Drainage and Building Act 1974 (“Act 133”) or the Town and Country Planning Act 1976 (“Act 172”).

It appeared that, instead, MPK decided to fine Zakaria under paragraph 17 of the First Schedule of the Uniform Building By-Laws 1984, a subsidiary legislation made under Act 133 which reads:

“In all cases where work has been commenced before plans have been approved or a permit obtained a fee equal to ten times that specified in the relevant preceding paragraph may be charged.

“The payment of this enhanced fee will not exempt any person from being prosecuted by the local authority should it decide to do so.”

The paragraph says that the payment does not prevent MPK from prosecuting Zakaria.

The law governing the development of land and erection of buildings is contained in Acts 133 and 172.

Generally, before anyone develops his land, he is required to obtain a planning permission under Act 172.

The planning permission is usually valid for a period of 12 months during which time the landowner is required to fulfil the conditions attached to the approval, unless it is extended.

Having obtained the planning permission does not entitle the landowner to commence construction of his building. He is also required to obtain approval to the building plans and specifications under Act 133.

Section 26(1) of Act 172 provides that any person who commences, undertakes or carries out any development or permits the same to be done without any planning permission commits an offence and is liable, on conviction, to a fine not exceeding RM500,000 or to imprisonment for a term not exceeding two years or both.

In the case of a continuing offence, a further fine may extend to RM5,000 for each day during which the offence continues after the first conviction for the offence.

Sub-section (2) also states that “unless the contrary is proved, the owner of the land in respect of which any act that constitutes an offence under subsection (1) is done shall be deemed to have permitted the doing of that act.”

Act 172 also allows the local authority which is the local planning authority to require the land to be restored as far as possible to the condition it was in before the development was commenced.

Section 72 of Act 133 also provides that where the local authority is satisfied that a building has been erected or is in the course of erection without the building plans and specifications being approved by the local authority, the local authority may require the landowner to do any one or more of the following acts:

(a) to stop work;

(b) to demolish such building within such time as the local authority may specify; and

(c) to take steps as may be ordered by the local authority.

It follows that MPK obviously owes the public an explanation as to why it has not invoked the above-mentioned sections of Acts 133 and 172.

I am sure the public would like to know whether a stop work order or demolition order has been issued; and what steps MPK has ordered these two councillors to take.

Without a satisfactory explanation, it will not stop the public from asking whether MPK is practising double standards when it comes to enforcing these two pieces of legislation against a public perception that local authorities have no qualms whatsoever to tear down buildings and extensions of ordinary folk and even places of worship if they have been erected without prior building plan approval.

Is this another case of what Oliver Goldsmith would describe: “Laws grind the poor, and rich men rule the law”?

Why do these two councillors have such scant regard for the laws which they are actually entrusted to enforce?

Mazlynoor’s response is rather disturbing. This law enforcer seemed to be saying that there is nothing wrong with what he did when there are so many other VIPs also doing it.

Such a response is indeed unbecoming of a councillor who has been entrusted to enforce the very same law which he showed no regret whatsoever to have breached.

There just cannot be one law for the rich and connected, and another for the poor and unconnected.

Everyone is entitled to be treated equally in his dealings with the public authorities.

If this persists, this case will remove any deterrence against anyone who disobeys the law.

This whole affair now reminds me of the words of Shamsul Hoque, the director of Legal Education and Training Institute of the Bangladeshi Bar Council who once described law as a scarecrow. This was what he wrote in 2003:

“The scarecrow is put in a cornfield to frighten birds away. The innocent, simple birds are really scared and they don’t dare to come near the field. But some birds strong and greedy do not get frightened. They are often found not only to come near the scarecrow, but also to perch on its arms and head to rest after eating the grain to their hearts’ content. Seeing these birds enjoying food and security, some other birds ask themselves, ‘They are having good meals. The scarecrow does not scare them. Why should we be fools and starve?’ So all the birds join in the feast.

“A law is made with the express intent to help people in getting justice through a legal system, thereby aiming to achieve the ‘greatest happiness of the greatest number’. But very often the law fails to serve this purpose.

The innocent, simple, illiterate and the poor cannot access legal procedure because it is highly expensive, complicated and time-consuming to them.

So they look upon law from a distance as a frightening scarecrow.

“On the other hand, some people in society like those strong, greedy birds, tame, twist or tarnish a law and use it for their own benefits. Some others follow suit and seize the opportunity, too.

Thus the law is made into a no-more frightening, rather a tattered scarecrow.

“It is this second group that is mainly responsible for making many laws ineffective. Not only that, they make law an accomplice in fulfilling their greed for power and possessions.”

Is there something wrong with the law, particularly in the manner in which we regulate our system of local government?

A councillor is indeed a very important person. He forms part of the local authority which exercises its powers and performs its duties under the Local Government Act 1976 (“Act 171”). As the local authority is also the approving authority for planning permission under Act 172 and building plans and specifications under Act 133, he is therefore a member of the decision making body.

In discharging his duties, he is well protected by law. Section 125 of Act 171 and section 95 of Act 133 grant him general immunity against any personal action, liability, claim or demand whatsoever.

However, it is the state government and not the federal government, that is, the Ministry of Housing and Local Government, that has supervisory control over the local authority.

Under Act 171, the federal minister is only required to be consulted by the state authority under eight situations:

(1) declare any area in such state to be a local authority area;

(2) assign a name to such local authority area;

(3) define the boundaries of such local authority area;

(4) determine the status of the local authority for such local authority area and such status shall be that of a municipal council or a district council;

(5) change the name of any local authority area;

(6) change the status of a local authority area;

(7) alter the boundaries of any local authority area; and

(8) merge two or more local authorities into one local authority.

But the main reason why state governments and local authorities do take into account any advice given by the federal government is simply because of financial consideration as financial grants and loans are provided by the federal government to the local authorities.

Also, the federal government and the state governments form the National Council for Local Government set up under Article 95A of the Federal Constitution and which is chaired by a federal minister.

It follows that it is the state authority, which is essentially the state executive council, that has control over local authorities, and the Menetri Besar, being its head, actually calls the shots.

Section 9 of Act 171 provides that the state authority may from time to time give the local authority policy directions of a general character relating to matters which appear to the state authority to affect the interests of the local authority area, and the local authority has to give effect to all such directions as soon as possible.

Section 10(7) of Act 171 then provides that if the mayor or president of the local authority does not agree with the other councillors as to the exercise of any of his powers or of the powers of the local authority, he shall refer the matter to the Menteri Besar whose decision shall be final and binding on the local authority.

As regards the appointment of the the Zakaria family members as MPK councillors, section 10(2) of Act 171 provides that councillors of the local authority shall be appointed from among persons who are ordinarily resident in the local authority area and who in the opinion of the state authority:

(a) have wide experience in local government affairs or;

(b) who have achieved distinction in any profession, commerce or industry; or

(c) are otherwise capable of representing the interests of their communities in the local authority area.

Therefore, even though councillors are political appointees, the state authority must adhere to these criteria when appointing them.

The interests of the local community is of paramount importance and the most important criterion is whether the appointees are capable of representing the interests of the local community.

The government must be mindful of this; otherwise there is nothing to prevent a ratepayer later from challenging any appointment.

It follows that Dr Khir should have perhaps first referred the matter to the state executive council instead of his party.

While politically this may make sense as councillors are usually local political leaders who wield considerable grassroots support, legally it is the state executive council which should decide who should be appointed and re-appointed.

However, so long as we continue to read about these unhealthy antics of local councillors, the calls of bringing back local elections will grow louder. But is this a solution?

It is said that while elections may bring about transparency and accountability at local politics, a local authority controlled by the opposition may find it difficult to run its local authority area as many local authorities cannot survive without financial grants from the covernment as revenue collected from the local assessments is just not enough.

I am of the view that the time has come for the government to look again at Act 171 to address the many weaknesses in the Act so that the system of local government can meet up with the ever-demanding needs and expectations of our citizenry today.

The last time a Royal Commission was set up to study the system of local government was in 1965 which produced the Athi Nahappan Report in 1969 that led to Act 171.

Perhaps, as a start, section 10(2) can be amended to require the state authority to consult either the minister or the National Council for Local Government in the appointment and re-appointment of local councillors.

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.