by Teh Yik Koon
In one of my criminology classes, I discussed with my students whether corrupt politicians pose the greatest danger to a country.
With the current situation facing Malaysia, the majority of my students confidently said yes, because these people are the ones with the power to create policies and decide the direction of our country. The people’s fate is in the hands of these politicians. If the politicians are corrupt, they could destroy the country.
My students cited 1MDB as an example, saying that the money that went missing could have saved so many poor families. Many also felt the money could have provided free education for all of them, allowing some of them to go overseas. Instead, our country now has landed itself in enormous debt, which needs to be paid back, especially by them.
It is good to know our students can see how dangerous our politicians are and hopefully, they will vote wisely in the coming general election.
But are they thinking out of the box instead of following the opinion of the mainstream? I asked them whether they were really sure that corrupt politicians are the most dangerous to our country. Whenever I ask such questions, my students know I am not satisfied with their answers.
A few started mentioning the police because if those in law enforcement were corrupt, they would let the politicians get away with their crimes.
I then asked them what if there was a group higher than law enforcement.
Then, I reminded them that the key components of the criminal justice system are the law enforcement agencies, the judiciary and the rehabilitation institutions. If law enforcement catches the corrupt politicians, a corrupt judicial system could still release the criminals.
I have always maintained that corrupt politicians are not necessarily the most dangerous species capable of destroying a country. The politicians have always been the devils we know and are wary of, but a corrupt judicial system dressed as guardian angels of justice, law and order could deceitfully do more harm. Under the circumstances, no one could be sure if anyone charged would be released eventually by the judiciary or whether justice could be confidently obtained when one brings a case to court.
This was clearly demonstrated by the public sentiment surrounding the 1MDB case. Before the judgment for Najib Razak was delivered, speculation was rife, and many were expecting the worst-case scenario where the earlier finding by the High Court would be reversed and he would get away scot-free. This is indeed a sad indication that many Malaysians do not have full confidence in our judiciary.
The loss of confidence started on 8 August 1988, when the Lord President of the apex court, Salleh Abas, was sacked from the judiciary.
The then Prime Minister, Dr Mahathir Mohamad, was reportedly not pleased with a series of rulings of the courts against the government since late 1986[i]. One of the major incidents was when Justice Harun Hashim declared Umno “an unlawful society” at the High Court on 4 February 1988. Mahathir was reported to have described some of these rulings as “amounting to direct judicial interference in the functions of the executive arm of government”.
In reply, Salleh said that the courts’ rulings against the government were not acts of hostility. He added that the executive and legislative branches should not undermine confidence in the judiciary if the courts were to play their proper role in maintaining stability in a democracy and that the courts’ responsibility of deciding cases “without fear or favour” did not mean deciding in favour of the government “all the time”.
Salleh was urged by his fellow judges to act on Mahathir’s ‘attacks’.
In response, Salleh convened a meeting of 20 judges based in Kuala Lumpur. The meeting decided they would not directly challenge Mahathir but instead write directly to the Agong “with the hope that all of those unfounded accusations will be stopped”.
When Mahathir found out about the letter, he demanded Salleh’s immediate resignation, failing which a tribunal would be constituted to remove him.
Salleh did not attend the tribunal hearings and, subsequently, was found guilty of all charges against him. His sacking may have marked the beginning of the erosion of the independence and integrity of the judiciary and of unbridled political interference in the system.
Unfolding events in 1988 also led to amendments to the Federal Constitution. The Mahathir government tabled a bill in Parliament to amend Articles 121 and 145 of the Constitution to transfer the power of the judiciary to Parliament, giving the judiciary residual power only as Parliament might grant them.
By 2017, the image of the judiciary had declined to the extent that Transparency International reported that 33% of their respondents in their study thought the judges in Malaysia were corrupt.[ii]
In the same year, Transparency International’s Global Corruption Barometer on Asia reported that 1% to 5% of the respondents surveyed in Malaysia admitted they had paid bribes to the courts in the country.[iii]
Transparency International’s Global Corruption Barometer on Asia in 2020[iv] reported that 13% of the Malaysian respondents believed the judges and magistrates in the country were corrupt.
The National Anti-Corruption Plan 2019-2023, published by the Prime Minister’s Department of Malaysia in 2019, reported that 63.3% of corruption complaints to the Malaysian Anti-Corruption Commission (MACC) involved the public sector. Of these, legal affairs and the judiciary received 0.9% of the complaints.
A study by Muhammad Nurul Houqe et al (2020)[v], which used multivariate regression analysis on court cases relating to bribery and corruption collected from the court database between 2006 to 2013, specifically identifying any differences in the judgment of the cases in relation to the different socioeconomic and demographic characteristics of offenders, suggested that, compared to other offenders, white-collar criminals received lesser punishment in terms of fines and imprisonment.
The authors also found that offenders in Umno-controlled states received relatively lenient sentences compared to offenders in other states; government employees were treated more favourably than others in terms of fines and jail sentences; the proportion of bumiputra offenders was much less than in the population and that they received favourable treatment in terms of fines and imprisonment; male offenders faced larger fines and longer prison terms than those imposed on female offenders; and offenders with prior conviction received more severe punishment. In general, the findings suggested that the Malaysian judicial system was influenced by the offenders’ social, political, and personal characteristics.
A study by Dressel and Inoue in 2020[vi] investigated determinants of the behaviour of 73 judges from the Federal Court in Malaysia on 102 major political cases from 1960 to 2018. They found that until the 2000s, overseas training, particularly in the UK, was the normal practice for most judges appointed to the Federal Court who had studied law between 1960 and 1980. As the number of graduates from overseas declined, the number of foreign-trained judges appointed to the Federal Court declined to 43% in 2018. By 2018, all appointees were educated at the University of Malaya.
This indicates that the early generation of Malay judges were educated overseas. The number of Malay judges rose gradually from 18% when Malaysia received its independence to 66% in the 1970s to 1990s, 76% in 1990 to 2009, 87.8% in 2010 to 2017, and 71% in 2018. The authors also revealed that stable and very similar patterns were found for the Court of Appeal and the High Court, although the Federal Court bench was more Malay-dominated in 2006 to 2018.
All the judges surveyed, with the exception of two judges, were career judges ascending mostly from the Court of Appeal (94%) and the High Court (6%). This indicates that most new judges, whose ages at appointment average 58, had already spent considerable time on the bench.
Dressel and Inoue provided statistical evidence that indicated that judges from a non-Malay background were more likely than Malay judges to vote against the government in major political cases; judges appointed after the 1988 constitutional crisis were more likely to vote for the government than those appointed before 1988; and judges appointed to the Federal Court by a sitting prime minister were more likely to vote for his government, although the authors could not confirm whether this was due to their being loyal to an individual prime minister or their simple tacit habitual loyalty to the ruling Barisan Nasional coalition after six decades of its single-party rule.
Lawyers, plaintiffs and defendants, in their experience, have also complained that there were judges who would dispense favourable judgments to certain parties. A former Court of Appeal Judge, Hamid Sultan Abu Backer, wrote a 63-page affidavit in February 2019 alleging “judicial interference” in court cases. He alluded that, “The contents of my affidavit are prima facie to expose constitutional and judicial misconduct before the (last general) election and also after the election, which is continuing without abate as there is sufficient material to purportedly say top judges are continuing to mislead the public by conniving not to expose judicial crimes.”[vii]
For example, he claimed “certain members of the judiciary have been aiding private parties to defraud the government”.[viii] He also alleged that judges could be called to the chambers of top judges and briefed on what to do.[ix] Hamid Sultan further alluded that he got himself into trouble for following his conscience and not the orders. His persistent call for a royal commission of inquiry (RCI) into the judiciary unfortunately has not been heeded.
The confession in February 2021 by a former magistrate in Kelantan who was sentenced to three years’ imprisonment in 2009 for accepting bribes, which brought to light the extent of corruption in the judiciary in Malaysia[x], lent further credibility to Hamid Sultan’s allegation. Firdaus Ramlan alleged the corrupt system was already in place when he committed the offence and he had inherited the system, which was an “open secret”. He also revealed that, when he reported for duty on the first day as a young magistrate, middle persons or brokers had already approached him on behalf of the offenders. Firdaus identified the middle person as a senior police officer who had access to the magistrates in the courthouse. He was offered as much as RM10,000 per case.
With all the above disclosures, the public may be justified in having a rather limited faith in our judiciary and harbouring the notion that justice may not always be fairly served. A thorough investigation, such as the formation of the royal commission of inquiry, is the only way to regain the public confidence.
The inquiry should not only concentrate on corrupt judges but also on inefficient and incompetent judges. This is because judges are appointed to dispense justice and if one is not well versed in the law or is not conscientious in his or her work, how could one dispense justice with integrity? Some of the known complaints include judges who fell asleep while presiding over a trial, those who trivialise cases brought to the courts, judges who erred glaringly in their judgments and those who constantly delay their cases.
I hope the royal commission of inquiry will be set up soon to reassure the public and to restore their confidence in the system. To rid the judiciary of any negative perception, it is of utmost importance that the judges are of impeccable reputation. Only then would they be able to dispense the due justice expected of them by the people.
As for the three Court of Appeal judges who upheld the High Court judgment in Najib Razak’s case, the public has been ironically generous in showering them with praises for doing what they were, in the first place, appropriately supposed to do.
The Court of Appeal’s decision in the globally publicised and high-profile Najib case does not herald anything significant that can effectively eradicate the doubts of the people towards the judiciary. They will only be convinced if a royal commission is set up to comprehensively investigate and look into all the complaints and grouses with its findings made public and acted upon by the government.
Teh Yik Koon, an Aliran member, is an academic at a local university who also belongs to the Malaysian Academics Movement (Gerak)
[i] Teh, Yik Koon (2018). From BMF to 1MDB: A Sociological and Criminological Discussion, Kuala Lumpur: Strategic Information and Research Development Centre (SIRD).
[ii] Prime Minister’s Department of Malaysia (2019). Malaysian National Anti-Corruption Plan 2019-2023, Putrajaya: National Centre for Governance, Integrity and Anti-Corruption.
[iii] Transparency International (2017). People and Corruption: Asia Pacific. Retrieved from https://images.transparencycdn.org/images/2017_GCB_AsiaPacific_EN.pdf on 10 December 2021.
[iv] Transparency International (2020). Global Corruption Barometer, Asia 2020: Citizens’ Views and Experiences of Corruption. Retrieved from https://www.transparency.org/en/publications/gcb-asia-2020 on 10 December 2021.
[v] Muhammad Nurul Houqe, Muhammad Kaleem Zahir-ul-Hassan, Mohammad Arif Idrus& Tony van Zijl (2020). Bribery and Corruption: Assessing the Fairness of the Malaysian Judicial System, Crime, Law and Social Change, Retrieved from https://www.researchgate.net/publication/338915057_Bribery_and_corruption_assessing_the_fairness_of_the_Malaysian_judicial_system on 10 December 2021.
[vi] Dressel, Bjorn & Inoue, Tomoo (2020). Politics and the Federal Court of Malaysia, 1960–2018: An Empirical Investigation, Asian Journal of Law and Society, p. 1–32.
[vii] Malaysiakini (21 February 2019). “Senior judge willing to reveal more in RCI, but regrets CJ’s reluctance,” Retrieved fromhttps://www.malaysiakini.com/news/464039on 10 December 2021.
[viii] Malaysiakini (15 February 2019). “Shocking! Judge claims judiciary involved in swindling public funds,” Retrieved from https://www.malaysiakini.com/news/464034 on 10 December 2021.
[ix] Malaysiakini (15 February 2019). “Senior judge – Harapan win rattled judges, but now ‘business as usual’,” Retrieved from https://www.malaysiakini.com/news/464045 on 10 December 2021.
[x] Faisal Asyraf (5 February 2021). “Justice Gone Wrong: Jailed for Graft, Ex-magistrate Shares his Story,” Malaysiakini, Retrieved from https://www.malaysiakini.com/news/561772 on 10 December 2021.