Eusoff told the New Straits Times that he had called Muhammad Kamil over the Likas election petitions, but never told him to strike them out without a hearing.
Insisting that their conversation had been entirely misconstrued, he said he would have been "mad" to direct a judge to strike out a case without giving the parties a hearing.
Eusoff asked: "How can I give such an instruction when I don't know the detailed facts of the case? The file is not with me."
It has been reported that the police have begun investigations into the case over the telephone directive to Muhammad Kamil to strike out the Likas election petitions without a hearing after a senior police officer from the federal police headquarters in Bukit Aman lodged a report yesterday afternoon based on newspaper reports.
I am very skeptical however that anything would come out of the police investigations as I agree with the Minister in the Prime Minister’s Department, Datuk Dr. Rais Yatim when he told the Star today: “How do we establish with certainty who the caller was if the call was not recorded? The question of evidence would be a technical problem.”
In this case, although Eusoff has admitted that he was the caller he has denied that he had instructed Muhammad Kamil to strike out the election petitions without a hearing. The whole issue comes down to the words of one man against another, i.e. Muhammad Kamil versus Eusoff - although the court of public opinion will have a very different verdict from that of a court of law.
Just as Eusoff has said that he would be “mad’ to direct a judge to strike out a case without a hearing, Muhammad Kamil could say that it is even “madder” for him to claim that there had been such a telephone directive from his superior when there was no such call!
Police investigations is probably the most unsatisfactory response to deal with Muhammad Kamil’s shocking expose when the scope of the investigation is reduced to one person’s words against another.
If this is a matter which concerns only two persons, society would have to settle for the unsatisfactory and inconclusive police investigations, but as this matter concerns not just two persons, but the independence, impartiality and integrity of the judiciary at a critical moment when the national priority is to restore national and international confidence after the blight of the past decade, the larger implications of Muhammad Kamil’s expose must be addressed seriously.
If the Muhammad Kamil expose does not lead to any judicial reforms, but results in a dead end because of the inability of police investigations to get the necessary evidence to ground any cause of action, this would be a return to the bad old habits in Malaysia of sweeping problems under the carpet.
As Muhammad Kamil has said that at least one or two other Sabah and Sarawak judges had confirmed receiving instructions in other election cases, the Chief Justice Tan Sri Mohamed Dzaiddin Abdullah should make a preliminary inquiry of the extent of the problem of interferences and improper influences, direct or indirect, on judges by judicial superiors before making a formal recommendation to the Prime Minister for the establishment of a Royal Commission of Inquiry on Judicial Independence.
This matter must be taken very seriously, as the United Nations Special Rapporteur on the Independence of Judges and Lawyers, Datuk Param Cumaraswamy, has said that he had heard of similar directives being given to judges in other cases although this is the first time in recent years that a judge has exposed such interference in the course of a judgment.
Interferences and improper influences by superior judicial officers on judges hearing cases undermine the very basis of judicial independence, impartiality and integrity which cannot be tolerated if we cherish the just rule of law and a truly independent judiciary.
Dzaiddin should take bold and decisive steps to convince the people and the world that the fundamental principle that the judiciary decide matters before it impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter whether judicial or political or for any reason, is a principle which can tolerate no challenge or doubt in Malaysia.
I note that Rais has congratulated Muhammad Kamil for “his courage and his clarity of expression in his judgment”, acknowledging that the judge “was interested only in ensuring that justice was served” in his expose.
But it is not enough for Rais to “pass to buck” to the Chief Justice, stating that it was important for the Chief Justice to issue a clear directive that all Sessions Court judges and magistrates should come out in the open if similar incidents recur.
Why is Rais silent in encouraging all judges who have experiences of improper influences and interferences by their judicial superiors to come forward to speak up?
I am surprised however by his response to my query two days ago as to what has happened to the “comprehensive report on the administration of justice” which he had been talking about since June last year and which he had promised would be presented to the Cabinet in March this year.
He denied that his report would deal with problems of judicial independence, as the report “touches on enforcement of the law in relation to the police and other enforcement agencies and departments in the civil service” as “The judiciary is totally independent of government interference”.
I find his denial most surprising as this is totally against what he said in his interview with Malaysiakini on 3rd January 2001, where he said that his “comprehensive report on the administration of justice” will comprise the performance of various agencies connected with the judicial process, justice, the administration of justice in general - the police, customs, immigration, the administrative aspects of the courts, and questions related to justice in general in the country.
He added that some extracts from the controversial “Justice in Jeopardy: Malaysia 2000 ” will be included in the report. "Justice in Jeopardy: Malaysia 2000" is the joint report of International Bar Association, the Centre for the Independence of Judges and Lawyers, the Commonwealth Lawyers’ Association and the International Lawyers’ Union and which was a damning indictment on the system of justice in Malaysia.
Rais said that the report will also focus on laws pertaining to the security and public order, such as the Internal Security Act (ISA), the Police Act and the Public Order Act as well as the Printing Presses and Publications Act, which was “often criticised for its role in stifling media freedom”.
Why then has Rais gone back on his words and now claims that his report on the administration of justice will not touch on the judiciary? If so, he should change the report from “administration of justice” to “administration of government”!
Rais had sent shockwaves through the legal and judical profession, the legal academia as well as the informed citizenry when he brazenly claimed last week that the book he wrote six years ago, Freedom under Executive Power in Malaysia, was “merely an academic study” which should not be held against him for the rest of his life and declared: “I don’t stand by what is studied academically”.
Is Rais now suggesting that his interview with Malaysiakini in January this year was another “academic exercise” and that it should not be held against him for the rest of his term as the de facto Law Minister?