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Tun Dzaiddin is trapped in a legal storm

THE MALAYSIAN JUDICIARY IS NOT WHAT it should be. It is said to dispense "the best justice money can buy". Outside its doors are the detritus of judicial skeletons, which by the time it became public had become the norm. Political and other presures dictated how a high profile case is decided. This began with a vengeance after the then Lord President of the Supreme Court, as the Chief Justice was then known, Tun Salleh Abas, and two Supreme Court judges were denied justice in their own court and drummed out, more to warn the judges of the fate awaiting them if they did not oblige. Justice, in short, was available only to the highest or the most powerful bidder.

The Chief Justice ruled with an iron rod, and harrassed or sidelined any judge who crossed him, or more importantly, his favourite lawyers. His favourite judges were only too happy to display their ignorance on the Bench. The judges were reduced to the proverbial schoolchildren, and one was forced to write a "surat layang" (anonymous letter) to highlight the rot in the judiciary. And forced to retire without a pension. He had a heart attack about that time, and he was given the option of death of his illness or resign immediately. He had no choice but to.

Tun Abdul Hamid Omar, who succeeded Tun Salleh, started the rot. His successor, Tun Eusoff Chin, continued it. He scandalised an already scandal-proof court when photographs of him on holiday with his favourite lawyer, Dato' V.K. Lingam, in New Zealand appeared on the Internet. He and his client, Tan Sri Vincent Tan (he of the Bukit Tinggi casino fame) were also photographed with the then Attorney-General (later Federal Court judge and now comatose), Tan Sri Mohtar Abdullah, and their wives, on holiday in Italy. What added fuel to fire was Dato' Lingam's arrogance and Tun Eusoff's subservience ensured anyone before him with the other side represented by Dato' Lingam found the judicial cards stacked against him. Tun Dzaiddin Abdullah, who succeeded him with a new broom and an unsullied reputation, could not, no matter how, turn the judiciary around. What destroyed a judicial tradition of two centuries cannot be reversed in decades, let alone in two or three years.

Somewhere in his term, he decided his was a Sisyphyan task, did not see it worthwhile to pursue it. He compromised his principles. How else could you explain his presence at a meeting in Putra Jaya in February this year at a political meeting to ensure that the jailed former deputy prime minister, Dato' Seri Anwar Ibrahim, is not released from jail under any circumstance. He was at two meetings in February, one headed by the law minister, Dato' Seri Rais Yatim, and the other by the deputy prime minister, Dato' Seri Abdullah Ahmad Badawi. His presence there was not widely known. So when he retired, it was with nose clean and in high respect.

But he jumped into a quagmire then, and he is as badly scarred as his former colleagues by this new judicial behaviour of cashing money at all cost. He joined a leading firm of advocates and solicitors, Skrine & Co. It raised eyebrows. The Bar Council asked questions, and Malaysian justice is reduced to what one retired judge described as "just ice". When Tun Dzaiddin threatened to sue the Star newspaper for imputing other than the purest motives for why he joined, he joined the pack. Skrine & Co wrote defensive letters to, and Tun Dzaiddin threatened to sue, The Star. The judicial code of ethics did not prohibit it; other judges had joined legal firms on their retirement. The Bar Council protested. The government looked to see if the judicial code could be amended to prevent such in the future.

But is that the issue? Tun Dzaiddin should have known - and he is of a disposition who would, once, agonise over it - it would have raised a flak. The Skrine explanation made it worse. The question is if Tun Dzaiddin, and other retired judges, should accept paid employment in law firms. Not if the law allows it. But if their conscience in the context of judicial behaviour allows it. Does judicial behaviour allow it? Would the standard of justice improve if they did? Then by all means, do so. If it does not - as I view it - they should cease and desist. They should not justify it on the basis of the law. There is more to justice than the law that gives it form. It is not only Malaysian judges who have to face this conundrum. That too many judges are only too quick to accept paid employment as legal consultants or as partners in law firms in prominent firms suggests that the old judicial traditions are ignored.

The judges, unfortunately, ignore the larger judicial tradition when they retire. They acquiesced, without a murmur, when the executive, deliberateldy and callously, destroyed judicial independence, especially when they were bought off with perks they should not, in conscience, have accepted, and closed an eye when judges and crony business men established close links. This was followed by the several blatant miscarriages of justice. The most prominent, and the most damaging, is the most serious of all, in how the judiciary helped destroy a man the prime minister wanted destroyed. No judge dared stand up to challenge it. Two crony business men wanted to show they should not be challenged by anyone because of who they are, and initiated a series of legal actions to silence their critics. The judges complied, even sending a few lawyers to jail for contempt.

Judicial integrity is compromised when judges remain silent when injustice is rampant. Those who were aggrieved bided their time or went along, some, as several told me, even deciding the battle was hopeless, and they had mortgages to meet. Tun Dzaiddin was one whose views were so well known that the Chief Justice, Tun Eusoff, saw him as a rival to office, which he was, ignored him or assigned irrelevant cases, and moved heaven and earth to ensure he did not succeed him. He could not.

On taking office, he did what he could to set matters right. He had too little time to make many changes, but he did give the leadership the judiciary needed. But on his retirement, he recanted, and joined the pack. He should not have taken legal advice and threaten to sue. Skrine & Co. should not have responded to the Star at all. He should have taken the high road and decided, on reflection, he would not be party to any scheme that caused needless controversy or compromised judicial integrity. And left, with his head high. It is still not too late. He can still tell Skrine & Co: thanks, but no thanks. And create a precedent for other judges to follow on their retirement. Would he?

M.G.G. Pillai
pillai@mgg.pc.my