RCI on judicial misconduct claims: Who to probe, what to investigate

Court of Appeal judge Datuk Hamid Sultan Abu Backer had made shocking allegations of judicial misconduct and judicial interference in his affidavit in lawyer Sangeet Kaur Deo’s lawsuit against the chief justice. — Picture by Hari Anggara
Court of Appeal judge Datuk Hamid Sultan Abu Backer had made shocking allegations of judicial misconduct and judicial interference in his affidavit in lawyer Sangeet Kaur Deo’s lawsuit against the chief justice. — Picture by Hari Anggara

KUALA LUMPUR, Feb 25 — Putrajaya has confirmed that a Royal Commission of Inquiry (RCI) will be formed to investigate recent allegations of misconduct by judges and interference in court judgments, which have been viewed to be the country’s latest judicial crisis.

Malay Mail spoke to two retired judges for their views on the proposed RCI on the “explosive” claims by Court of Appeal judge Datuk Hamid Sultan Abu Backer in his 63-page affidavit, with the duo believing that this can also be a chance to clear the air and restore the public’s confidence in the judiciary.

Here we have a quick look at perhaps some of the most important points for any RCI to be meaningful: Who investigates, what is investigated and the results of such investigations.

Retired judge Datuk Seri Mohd Hishamudin Md Yunus suggested that judges from Commonwealth countries could be picked to sit in the RCI panel on alleged judicial misconduct in Malaysia. — Picture by Yusof Mat Isa
Retired judge Datuk Seri Mohd Hishamudin Md Yunus suggested that judges from Commonwealth countries could be picked to sit in the RCI panel on alleged judicial misconduct in Malaysia. — Picture by Yusof Mat Isa

Who should sit on the RCI panel?

Former Court of Appeal judge Datuk Seri Mohd Hishamudin Md Yunus said the panel could include individuals such as law professors, and should include “senior former judges known for their intellectual honesty, integrity and courage”.

“The panel should also include lawyers and Commonwealth judges,” he told Malay Mail when contacted.

Mohd Hishamudin explained the participation of one or two judges from Commonwealth countries “will further enhance the standing and credibility of the RCI”.

He highlighted that Malaysia had much in common with Commonwealth countries such as the UK, Australia, Singapore, India and Canada, noting: “We practice the common law, subscribe to the principle of the rule of law, separation of powers, and the independence of the judiciary”.

Former Court of Appeal judge Datuk Mah Weng Kwai noted that there was no requirement for only judges or lawyers to sit on RCI panels, but stressed that they must be known to have integrity and be independent and not be involved in the allegations in any way.

“There are no rules on the composition, but it will surely make sense to have retired judges on the panel because judges will know the workings of the court system.

“There should be senior members of civil society who are credible and people of integrity,” he told Malay Mail when contacted.

What should be the RCI’s scope?

An RCI panel’s scope of investigation and fact-findings is limited to the terms of reference (TOR) that are given at the start of its enquiry.

Mohd Hishamudin suggested that the RCI be limited to the issues raised in Hamid Sultan’s affidavit, as the RCI proceedings may otherwise be lengthy.

“The issues raised in the affidavit by themselves are already wide ranging. I think the TOR should only be confined to them. To be too ambitious in the TOR might be counterproductive,” he said.

“The TOR must not be too wide. Otherwise, the hearing would be protracted and will take a very long time to conclude. It is impractical, especially if we are going to have foreign judges on board,” he also said.

Former judge Datuk Mah Weng Kwai said it was important to dispel any doubts regarding the judiciary’s independence and integrity. — Picture by Choo Choy May
Former judge Datuk Mah Weng Kwai said it was important to dispel any doubts regarding the judiciary’s independence and integrity. — Picture by Choo Choy May

Hopes for a better judiciary or restored reputation?

Mohd Hishamudin viewed this RCI as an opportunity to both further enhance the judiciary’s independence and to “restore the image of the judiciary”.

“The TOR should also include recommendations on reforms with regard to the appointments and promotions of judges, with a view to strengthening the independence of the judiciary,” he said.

When asked if the RCI should cover other reforms for the judiciary beyond that on judges’ appointments and promotions, Mohd Hishamudin reiterated that the TOR should not be too ambitious.

“The main objective is to restore the image of the judiciary. It should not be distracted with other side issues,” he said.

“The TOR should also include to recommend appropriate actions to be taken if the allegations made in the affidavit are found to be proven; or to make recommend on the appropriate actions to be taken if the allegations are found to be untrue or unsubstantiated. Thus the effect of the appointment of the RCI works both ways,” he added.

Mah said the RCI must carry out a thorough and in-depth investigations on Hamid Sultan’s allegations and see what is the factual and legal basis for the allegations, with action against any individuals if they are responsible for any wrongdoings.

“At the end of the day, if allegations are proven to be true and correct, action must be taken. If the allegations are not proven, the RCI must say so, so any damage done or loss of reputation can be reinstated,” he said.

“To be very full and comprehensive, I think the TOR should go beyond what was alleged by Justice Hamid,” he said, suggesting that allegations regarding the judiciary that surfaced from time to time should also be looked into.

Mah suggested that former High Court judge Datuk Syed Ahmad Idid Syed Abdullah’s allegations could be taken as a “starting point”. The latter had in a 33-page letter in 1996 made 112 allegations of judicial misconduct by 12 judges.

Mah saw this RCI as a chance to re-establish or restore public confidence in the judiciary.

“I think it’s a very good opportunity for the judiciary to investigate. And very importantly, if there’s no wrongdoing anywhere, the RCI must say so because I think it’s very important to reinstate and establish confidence in the judiciary.

“Because the judiciary is a very important institution. It’s a third arm of the government. We cannot have any shadows hanging over the judiciary, or lingering doubts about the integrity and independence of the judiciary,” he said.

On February 21, Prime Minister Dr Mahathir Mohamad confirmed that the RCI on the alleged judicial misconduct would be formed, but said the scope or how far back the RCI probe should cover had not been decided. — Picture by Ahmad Zamzahuri
On February 21, Prime Minister Dr Mahathir Mohamad confirmed that the RCI on the alleged judicial misconduct would be formed, but said the scope or how far back the RCI probe should cover had not been decided. — Picture by Ahmad Zamzahuri

How effective can this RCI be?

RCI panels usually produce a report after its investigations, with the report typically containing recommendations for the government to consider and act upon.

In the end, the usefulness of RCI reports appear to hinge on whether the government is willing to take action.

In 2011, the Federal Court had commented in a case on the nature of an RCI panel, saying: “The Commission merely investigates and does not decide. Its findings and recommendations are not binding on anybody, not even the government.”

Mohd Hishamudin said an RCI “will be a useful and effective exercise if the members are carefully selected and the TOR are properly crafted”.

“Also there must be a political will on the part of the Government to implement the recommendations of the RCI,” he said, adding that it is the “prerogative” of the government on whether or not to implement the RCI’s recommendations.

Mah said it was up to the government to show “political will” to take action and follow the RCI’s recommendations, whether it is in favour of or against any individuals.

“Let’s hope this RCI will not be like previous RCIs, which after the report is made, no action is taken,” he said, later adding that civil society could continue to highlight the matter after the RCI releases its report.

Malay Mail had previously also written a quick guide on RCIs, as well as the outcome of some high-profile RCIs.


 

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