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In Search Of A Chief Justice

A month after the Conference of Rulers announced the new chief justice, Tan Sri Dzaiddin Abdullah, the Prime Minister says he knows nothing about it. But he was present at the Conference, meets the Yang Dipertuan Agung every week, did not object when the Keeper of the Ruler's Seal announced it to the world. Even if he was absent, the deputy prime minister, Dato' Seri Abdullah Ahmad Badawi, would have, and told him what transpired. At least, he should. Besides, the Conference issued a press statement about its appointment, one his office would surely have known about. More than that, the de facto law minister, Rais Yatim, was enthusiastic at it. Yet, he tells reporters, he is not informed. So, why is he now denying what he cannot deny? Is he now telling the world that he since he does not know about it, Tan Sri Dzaiddin will hold office without his knowing of the appointment and therefore would be impartial or independent? Or does he sulk that the Conference did not appoint whom he would have preferred instead: the Attorney-General, Tan Sri Mohtar Abdullah?

The outgoing chief justice, Tun Eusoff Chin, leaves office under a cloud on 20 December, a fortnight hence. When the Conference issued that press statement, he rushed hither and thither to find out who it is. He had not been consulted, or informed, about the appointment. Constitutionally, he need not be, thought in the past his views would have been sought. It is the Prime Minister's prerogative to nominate a chief justice without reference to any. For all other judicial appointments, the chief justice's views have to be sought. As it happened, Tun Eusoff knew of Tan Sri Dzaiddin's appointment an hour or so before the press release was issued.

As convention demands, he submitted three names -- Tan Sri Dzaiddin, Tan Sri Mohtar, and federal court judge, Dato' Fairuz Sheikh Halim. Tan Sri Dzaiddin is the most senior of the federal court judges, while Tan Sri Mohtar resigned as high court judge to be Attorney-General in a judicial musical chair. There appears to have been a promise, or expectation, that if he behaved himself, he would eventually leapfrog into the chief justice's chair. Like every institution of state in the country, the Prime Minsiter decided to have the judiciary eat out of his hand, demanding loyalty to be proven with decisions which back him. There is nothing in black and white about it, but the speed with which those who disagreed with him were removed was sufficient warning to adjudicate as they thought he wanted.

But he would have known the Conference insisted not to be bulldozed to make judicial appointments it did not approve of. So he met Tan Sri Dzaiddin twice before his name was put forward and, seemingly, had no qualms about his "reliability" -- not judicial but political. But the judge was not in the coterie of judges Tun Eusoff could rely upon to give the "right" judgement. More than what the Prime Minister wanted, the judiciary was overtaken by another imperative: business men who wanted the judiciary to act against those they disapproved of. One expects the judiciary to side with the establisment and even the government. That is how the judiciary generally reacts. But not when a business man has a suit against a private individual or their business rivals. Or at least they should not.

The judiciary's reputation declined fast after that happened. So quickly and thoroughly that Tun Eusoff retires under a cloud. The Prime Minister realised he was not "reliable" anymore. The most important man who advisers the Prime Ministers on matters judicial is the former Lord President, Tun Abdul Hamid Omar. It was he who recommended Tan Sri Mohtar as Attorney-General, after the outgoing A-G, Tan Sri Abu Talib Osman's nominee did not pass muster. It shocked many in legal circles at the time. Tan Sri Abu Talib had wanted Tan Sri Mohtar investigated for his conduct as a high court judge when he became his successor. His lack-lustre tenure is confirmed in his desire to ignore legal principles and procedure to convict the former deputy prime minister, Dato' Seri Anwar Ibrahim, of corruption and sodomy. Photographs of him on holiday with a Malaysian business man close to the establishment, Tan Sri Vincent Tan, and his lawyer, Dato' V.K. Lingam, and their families in Italy. He had about the same time gone on a similar holiday with Tun Eusoff and their families with a prominent business man's crony in tow.

The Conference of Rulers was disinclined to have him as Tun Eusoff's successor. Tan Sri Dzaiddin was the most acceptable of the names submitted. But he was among the judges sidelined in the federal court by Tun Eusoff for he could not be relied upon to give the "right" judgement. He was ignored for promotion during Tun Eusoff's ascendancy. But when the Conference was routinely throwing back appointments to the judiciary because it thought the names submitted unsuitable, it accepted for future consideration that of Tan Sri Dzaiddin, and threw out the others.

Indeed, while the conference wanted Dzaiddin, whose wife is a sister of the former foreign minister, Tunku Ahmad Rithaudeen, and the brother-in-law of the dowager Raja Permpuan of Perlis, some rulers are unhappy at what they believe is his attempt to transform himself into a judge of all seasons. But they still think he would initiate the changes that must to return the judiciary to what it was. This would take more years than he has left in office: he would be chief justice, with an extension of six months, for two years. The Prime Minister, who nominates the trio without reference to the outgoing chief justice, must accept it. He cannot deny not knowing about it. He receives all papers relating to the Conference. When all is said and done, the Conference, not the prime minister, appoints the chief justice.

The judiciary is in crisis, helped in no small measure by a chief justice who cocked a snook at judicial convention and propriety. The belief that justice is not possible if the other side was an influential business man or was represented by the likes of Dato' Lingam or was one the government wanted destroyed became too ingrained to destroy its once pristine reputation. Foreign businesses gave Malaysia a wide berth after a former Lord President, Tun Saleh Abas, was drummed out of his own court for acting as he believed a judge should. When business men got what they wanted, foreign businesses decided they could be locked in with their investment in Malaysia if their local partners decided to go to court. According to an affidavit filed, the contents of which remain unchallenged, he even helped write the judgement in a leading case involving the business man, Tan Sri Vincent Tan, and this writer. Despite that, and having gone on holiday to New Zealand with Lingam and their families, the chief justice affirmned the RM2 million libel damages in a judgement that ignored the valid points of law raised.

But what sank the judiciary's independence is the corruption and sodomy trial of the ousted, jailed, and severely beated former deputy prime minister, Dato' Seri Anwar Ibrahim. It showed the cynical moves to ensure he would be convincted, both trials conducted by men just appointed as high court judges seemingly to convict him. He was convicted as expected. When the federal court was to hear on one of his appeals, Dato' Seri Anwar dispensed with his counsel to demand that Tun Eusoff recuse himself in a courtroom speech that highlighted the degradation the judiciary has sunk to. Tun Eusoff refused to recuse. Dato' Seri Anwar then refused to proceed with the appeal before a coram of whose head he had no confidence in to dispense justice. The judiciary had sunk as low as it could.

The Prime Minister is caught in this general approbation about the judiciary. One side of him wants a judiciary to be what it was before Tun Eusoff Chin became chief justice. While another wants it to be his hand maiden in destroying his nemesis and former protege, Dato Seri Anwar. So, the judiciary is caught in this continuing struggle between Mahathir and Anwar. The Malaysian, especially Malay, ground now regards the judiciary as the Prime Minister's, and therefore not expected to right judicial wrongs. The judiciary, in their view, is no longer important. It is the price the Prime Minister had had to pay for destroying it in his single-minded, ill-thought-out attempt to create a Malaysia in 2020 in his own image. It now comes to hound him. So, his statement that he does not know of Tan Sri Dzaiddin's appointment reflects not his clever repartee, which is probably what he intended, but of an old leader out of touch announcing policies and threats he cannot carry out, attacking all and sundry knowing full well it demeans him ever more.

He should come clean and clear the air. And take the magic and uncertainty about promotions and appointments. India has a system in which seniority rules. It works well. The judges is appointed at the recommendation of the chief justice, but once appointed, he rises as his seniority allows. Tun Eusoff bucked this, by bringing in judges noted not for their erudition or legal knowlege or judicial temperament but for their personal loyalty. This can still occur if a capricious man like Tun Eusoff fills the chair or could easily be swayed by political pressure or considerations, but with judges not sidelined as now because they are not aligned to the chief justice would be in the past. There are other methods of selection. All ensures that only men of quality are appointment. Despite this, there would emerge a Jeffreys or a Eusoff, but he would then be the odd bad egg. We should aim for that. But Mahathir does not make that easier. Judges are too important in any society to be appointed at the whim and fancies of whoever appoints them. As often happens in Malaysia.

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