Cabinet next Wednesday should decide whether to invoke Article 125(3) and (9) of the Federal Constitution for the establishment of a judicial tribunal into Anwar’s serious police report against three top judges for perversion of the course of justice
by Lim Kit Siang
(Penang, Saturday): The cabinet next Wednesday should decide whether to invoke Article 125(3) and (9) of the Federal Constitution for the establishment of a judicial tribunal into former deputy prime minister Datuk Seri Anwar Ibrahim’s serious police report against three top judges for perverting the course of justice.
Anwar’s lawyer, Sankara Nair said yesterday that the former deputy prime minister made the police report from his cell at the Sungei Buloh prison on Tuesday against Federal Court judge Datuk Pajan Singh Gill and two Court of Appeal judges Datuk Richard Malanjum and Datuk Hashim Yusof, alleging grave judicial misconduct when they denied the existence of his notice of alibi which had been submitted to them in a proceeding at the Court of Appeal which rejected his appeal against a sodomy conviction in April last year.
Sankara said he will be sending a copy of Anwar’s report to the Malaysian Bar seeking their consideration to urge the Chief Justice to convene a tribunal to try the three judges.
Article 125(3) and (9) provide for two ways for the establishment of a judicial tribunal to inquire into judicial misconduct – through the appointment by the Yang di Pertuan Agong on the representation of the Prime Minister or the Chief Justice after consulting the Prime Minister that a judge ought to be removed on the ground of any breach of any provision of the judicial code of ethics or “on the grounds of inability, from infirmity of body or mind or any other cause”.
As the Prime Minister acts on the advice of the Cabinet, the Cabinet Ministers on Wednesday are duty-bound to take cognizance of Anwar’s grave complaint against the three top judges and not abdicate from their responsibility to decide whether the Prime Minister should invoke Article 125 for the establishment of a judicial tribunal.
The greatest disappointment on the judiciary front is that although in the past three years, the rot in the judiciary had been stopped, Malaysia is still a long way off from fully restoring public confidence, both national and international, in a truly independent judiciary and a just rule of law.
An acid test of the accountability, independence, impartiality and integrity of the judiciary has surfaced within the “First Hundred Days” of the Datuk Seri Abdullah Ahmad Badawi as the fifth Prime Minister, and the action or inaction of the Cabinet as well as the Chief Justice on Anwar’s grave allegations of judicial misconduct would be watched closely, both nationally and internationally, for the answer to the question - whether there are grounds for optimism to expect fundamental structural changes for the better in all aspects of the system of governance in Malaysia in the coming months and years.
It is most regrettable that my call in the past four years for Malaysia to take a leaf from the Canadian experience to uphold judicial accountability and introduce legislation to set up a Judicial Council to consider complaints about judicial misconduct had been ignored, or we would have today a better and more satisfactory mechanism to deal with complaints about judicial misconduct, with a complaints process which is demonstrably open and equitable which examines each complaint seriously and conscientiously – and not like the present dark, murky and subterranean process.
Malaysia has a lot to learn from the experience of other countries, in particular the over three decades of history and experience of the Canadian Judicial Council, first set up in 1971 to consider complaints about the conduct of federal judges. The role of the Canadian Judicial Council involves scrutiny not of a judge’s decisions but of a judge’s behaviour, and its comes into play when a complaint or allegation is made that the judge in some way has breached the requirement of good behaviour, and by his or her conduct "has become incapacitated or disabled from the due execution of the office of judge".
* Lim Kit Siang, DAP National Chairman