By Haresh Deol and Pearl Lee
“Why didn’t he lodge a report or write to the Chief Justice when he first knew about it?”
“Why now and not earlier?”
“Should he now recuse himself if the lawyers he praised appear in front of him?”
These were among many questions raised by those in the legal fraternity following claims by Court of Appeal judge Datuk Dr Hamid Sultan Abu Backer of alleged collusion between certain top judges and lawyers to win cases filed against the government.
Hamid Sultan’s 65-page affidavit filed in support of an application by Sangeet Kaur Deo, was to declare that the chief justice had failed to defend the integrity of the judiciary in two cases. He even called for the removal of the chief justice.
Sangeet, daughter of legendary lawyer and DAP stalwart Karpal Singh, filed her affidavit on Jan 14, 2019. She had initiated legal action against the chief justice over alleged judicial interference in her father’s sedition appeal and in the M. Indira Gandhi child conversion tussle.
Aizuddin Zolkeply, the chief justice’s special officer (public relations), replied to Sangeet’s affidavit, saying among others, that the alleged judicial interference in an appeal pertaining to Karpal was suspended in view of an ongoing police investigation. Aizuddin’s seven-page reply was filed on Feb 7.
On Feb 14, Hamid Sultan, in an unprecedented move, filed an affidavit in support of Sangeet’s legal action. The next day, Malaysian Anti-Corruption Commission (MACC) deputy chief commissioner Datuk Seri Azam Baki reportedly said his officers would interview the learned judge this week.
‘You can have a cook in the judiciary but …’
Hamid Sultan, appointed Court of Appeal judge on Jan 8, 2013, had in his affidavit reproduced his paper presented at the Malaysian Bar’s International Malaysia Law Conference 2018. In the paper, he had complained of the reprimand from a top judge for his dissenting judgment in Pathmanathan Krishnan v Indira Gandhi Mutho & Other Appeals (2016) and even called for a Royal Commission of Inquiry (RCI).
He had then said: “I take a strong view that without a judiciary committee to Judicial Dynamism, the Rule of Law will be meaningless and corruption as well as kleptocracy cannot be arrested. I am now extremely inspired by our Prime Minister Tun Dr Mahathir Mohamad who to me is a political, medical and religious miracle. To secure political power, Tun with other political colleagues have promised true change with a view to deliver a new Malaysia.”
On a personal note, he went on to share how he read law in England at the age of 28 and how, as a restaurateur and master cook, he had a track record as a chief cook, preparing briyani for 10,000 people.
“You can have a cook in the judiciary but new Malaysia cannot afford to have intellectually dishonest, morally corrupt and judicially incompetent judges to uphold the rule of law.”
In matter 35, Hamid Sultan wrote: Great lawyers / good lawyers of our time have appeared before me. Most of them are specialists in their own fields as opposed to Datuk (Seri) Gopal Sri Ram who is an all-rounder.”
He went on to quote the forward of Gopal Sri Ram in his recent publication which is also reflected on www.janablegal.com:
Hamid Sultan has authored several other books and is best remembered for simultaneously launching three books in Oct 18, 2014. Just 10 days later, former Federal Court judge Gopal Sri Ram made headlines when he showed up as lead counsel for then opposition leader Datuk Seri Anwar Ibrahim in the latter’s appeal against a sodomy conviction.
Gopal Sri Ram has appeared before Hamid Sultan on several occasions, including in the case of Punithavati @ Pushpambigai Ponniah v Goh Mary and Others (2016); Dinesh Kanavaji A/L Kanawagi & Kanawagi A/L Seperumaniam v Ragumaren A/L N.Gopal (2016) and Ong Koh Hou @ Won Kok Fong v Da Land Sdn Bhd and 2 Others (2018).
In Matter 37, Hamid Sultan said: “The judicial administration of justice is perceived by many to be in a sordid state of affairs and that it is also supported by many articles by eminent lawyers and writers and I will list a few as follows: Gerald Lourdesamy, N. Surendran, Teh Yik Koon, A. Kathirasen, P. Gunasegaran, Datuk M. Santhananaban, etc.
“Top judicial officers in the past had not responded to the criticism in all these articles thereby in effect admitting the contents of articles. The CJ continuing in office as head of the judiciary without proper remedial action is an infringement of oath of office as well as a despicable act in New Malaysia.”
The judiciary has been rocked with allegations of interference over the decades.
In 1988, Lord President Tun Salleh Abas was removed from his post.
Dubbed the 1988 judicial crisis, it started after then Prime Minister Datuk Seri Dr Mahathir Mohamad tabled a Bill in Parliament to amend Articles 121 and 145 of the Federal Constitution to only give the courts powers as Parliament granted them.
Salleh defended the judiciary’s autonomy through a confidential letter to then Yang di-Pertuan Agong Sultan Iskandar Sultan Ismail Al-Khalidi and state rulers following a meeting involving 20 Supreme Court judges.
Salleh was then brought before a tribunal for misconduct and this led him to challenge the constitutionality of the tribunal at the High Court. Five Supreme Court judges later granted Salleh an interim interlocutory order against the tribunal but it was later set aside.
The five judges who granted the order – Tan Sri Suleiman Pawan Teh, Datuk George Seah, Tan Sri Azmi Kamaruddin, Tan Sri Eusoffee Abdoolcader and Tan Sri Wan Hamzah Mohamed Salleh – were later suspended. Wan Sulaiman and Seah were subsequently sacked while the three others were reinstated.
In 1996, Datuk Syed Ahmad Idid Syed Abdullah resigned as High Court judge after penning a 33-page report which raised allegations against 12 judges involving 39 cases of corruption, 21 cases of abuse of power and 52 cases of misconduct, among others.
Among the allegations was that former Lord President Eusoff Chin was on holiday in New Zealand with V.K. Lingam, a senior lawyer who had appeared before him in a number of cases. There were also pictures of Eusoff and Lingam and their families on holiday.
Syed Idid’s anonymous letter, which was penned for a few top officials, found its way to government departments and he was forced to resign after it was ‘dismissed’ as a poison pen letter by then Attorney-General Tan Sri Mokhtar Abdullah.
Anwar had in the past implied judicial interference. After being found guilty of four corruption charges and sentenced to six years in jail in 1999, Anwar told CNN: “The charges are part of a political conspiracy to destroy me and ensure (then Prime Minister) Dr Mahathir Mohamad’s continued hold on power at whatever cost, even if it means sacrificing whatever little is left of the judiciary’s integrity.”
“Right from the beginning, I had no hope whatsoever that I would be tried fairly. I have no hope of justice.”
A week after the downfall of Barisan Nasional (BN) at last year’s May 9 general election, Anwar was granted a full pardon by former Yang di-Pertuan Agong Sultan Muhammad V, “expunging all past convictions”.
In 2007, Lingam was implicated in a video showing him having a phone conversation with then Chief Judge of Malaya Tun Ahmad Fairuz Sheikh Halim brokering for the appointment of judges who were ‘BN friendly’. The conversation was believed to have taken place in 2001. The video was released by Anwar. Two months later on Nov 8, 2007, the ousted deputy prime minister revealed 10 seconds more of the controversial tape.
An RCI was set up in 2008 to investigate the matter. The five-member panel later recommended for action to be taken against six people – Lingam, Eusoff, Fairuz, Dr Mahathir, business tycoon Tan Sri Vincent Tan and former BN minister Datuk Seri Tengku Adnan Tengku Mansor.
The commission also found prima facie evidence to investigate the six under the Sedition Act, Official Secrets Act, the Penal Code and Legal Profession Act.
In November 2015, Lingam was barred from legal practice. Action, however, has not been taken against the other five.
Murmurs within fraternity
Being a man of law, some in the legal fraternity insist Hamid Sultan should have gone through due process, i.e. lodging a police report followed by a letter to the chief justice to raise his concerns.
There were others who questioned his motivation, starting from the stinging speech at the conference held in August last year to the recent affidavit, wondering why now instead of earlier. They also pointed out Hamid Sultan’s praise of lawyers in the open.
The move has been described as “ballsy” by certain quarters who wonder if Hamid Sultan is being backed by unseen hands.
Some sang praises of the learned judge, adding he has opened a can of worms and hoped his efforts would not be in vain.
The conspiracy theorists, however, believe this is simply the beginning of something “bigger” and asked if this is the first step towards replacing a judiciary “inherited from the BN administration”.
Nevertheless, many agreed that judges must not only distance themselves from lawyers but must also be seen distancing themselves from legal practitioners.
One thing for sure, the judiciary has once again suffered a bruised ego.
If the allegations are true – that the judiciary is indeed a sham as implied repeatedly over the decades – then it remains to be seen if a purge will eventually take place en route to a ‘Judiciary Baru’.
Only time will tell.
For now, an RCI and a full-blown investigation by the police and MACC would be the first step to satisfy demands for justice.