A senior Court of Appeal judge (Justice Datuk Dr Hamid Sultan Abu Backer) recently revealed some shocking insights into the alleged misbehavior of judges and the corruption in our courts. You could read more about it here in our previous article.
Justice Hamid informed his lawyer that he is also prepared to discuss the contents of his affidavit in more detail only in the presence of an RCI. And it looks like he got his wish since Prime Minister Dr. Mahathir announced plans to set up a Royal Commission of Inquiry (RCI) to investigate the authenticity of Justice Hamid’s claims against the judiciary.
What is an RCI?
Royal Commissions are public inquiries formed to look into serious matters of public importance and controversy. It’s a statutory body (an organization given its power’s by Parliament) found in monarchies like Saudi Arabia, United Kingdom, Canada, Australia and here in Malaysia. RCI’s in Malaysia are formed by the Yang di-Pertuan (often on the advice of the Prime Minister) under the Commissions of Inquiry Act 1950 , and may examine any topic such as the conduct/ management of any :
- federal officer;
- department of public service
- public institution (like the courts)
- Or any other matter considered for public welfare.
(except Islamic or Malay customs matters, & Item 10 matters in Sabah & Sarawak State List).
An RCI’s job scope – basically who, what, and how much it could investigate within a certain issue, would be stated in a document called the Terms of Reference (TOR). Members of RCI’s in the past included up to 5 people and consisted of retired judges, lawyers, doctors and/or other members of the public deemed suitable to examine the issue at hand. For now, the members of the RCI that will inquire into the judiciary and its TOR have yet to be announced.
It matters to note that RCI’s are a relative rarity, but RCI’s have previously been established over diverse issues such as BNM’s forex losses, the death of Teoh Beng Hock and the collapse of a ferry terminal in Penang.
It’s ‘business as usual’ for the courts despite an RCI
With Justice Hamid’s affidavit mentioning judicial interference and corruption among other things, naturally some people involved in legal cases right now might be concerned. The Attorney General (AG) Tommy Thomas has assured everyone in a Media Release that all courts in the country would continue to function as normal whilst the RCI conducts its inquiry.
The Media Release also highlighted how this isn’t the first RCI involving the judiciary. In 1988, two Tribunals were set up to examine allegations of misconduct by 6 Supreme Court judges (now renamed Federal Court). Then later in 2007, an RCI was set up to investigate a leaked video clip involving a prominent Malaysian lawyer (V.K. Linggam) seen to be influencing the appointment of senior judges. In both these instances the courts carried on with business as usual.
In lawyer-speak, the postponement or delay of a case is called adjournment. The Media Release also emphasized that there wouldn’t be an automatic or blanket adjournment of all cases and noted that during previous RCI’s no adjournments were entertained.
Think of it this way, it would be outrageous to temporarily close down the entire police force just because some officers are accused of corruption. Similarly, the courts must continue the important task of dispensing justice since delays in legal cases could bring about severe economic (delay in receiving money owed) and social consequences (e.g. difficult for parties to carry on with their lives).
Are criminals given a “get out of jail free” card if a judge is proved corrupt?
As we’ve mentioned in our previous article on Justice Hamid’s affidavit, the allegations mention interference in cases by a “Hit Squad” of judges and also specific meddling in cases such as the trial of Anwar Ibrahim, the Indira Gandhi conversion case and the sedition trial of Karpal Singh. So is it possible that cases involving judicial interference will be revised?
It seems pretty obvious that just because a judge were to be proved corrupt, doesn’t mean criminals he had sentenced over the years are automatically released. Similarly, all civil cases the judge had previously decided on can’t be automatically undone because to do so would be to “throw out the baby with the bathwater”.
Lawyers we spoke to said the main factor for courts to re-examine a case is dependant on parties involved to challenge or appeal previous decisions. Parties should also have sufficient proof to convince a fresh panel of judges that the previous judge has made a serious error or fresh evidence has come to light.
Another complication could arise. All courts generally have powers to re-examine previous decisions of lower courts but since the Federal Court is the highest court - who will re-examine its previous decisions? Here is where things can get confusing. Rule 137 of the Rules Of The Federal Court limits any other rule from stopping the Federal Court in helping to prevent injustice or abuse of the court process. Basically, Rule 137 is a rule that allows the Federal Court to bypass the other rules if that’s needed to ensure that justice is being served:
Rule 137 of of the Rules of the Federal Court
Finally, it’s also important to note that parties aren’t generally allowed to sue judges (as per Section 14 of the Courts of Judicature Act 1964) so as to allow judges to perform their jobs without fear or favor of repercussions. However, it has been suggested that the immunity doesn’t apply if it can be proved judges acted in bad faith or are involved in criminal acts such as corruption – so it may be possible.
[ READ MORE : Can judges get sued if they make a mistake in Malaysia? ]
It’s the RCI’s job to only advise, not enforce.
Think of the RCI like a doctor – He’ll check your health and suggest that you should stop smoking, but can’t actually force you to stop smoking. Similarly, the best an RCI can do is present its findings and provide recommendations in it’s report, but it eventually depends on the government and other parties to take meaningful action.
The last judicial RCI into the V.K. Linggam clip resulted in the ban on V.K. Linggam from practicing as a lawyer and a creation of a Judicial Appointments Commission (JAC) but lacked any criminal charges against all involved. Some parties implicated by the (V.K. Linggam) RCI tried to challenge the report via the courts (through a judicial review), but failed. The judge decided that an RCI’s findings are not reviewable, and said :
“ The Commission merely investigates and does not decide. Its findings and recommendations are not binding on anybody, not even the Government. “ – Federal Court in 2011, 6 MLJ 490
It’s beyond the job scope of any RCI to play judge, jury and executioner. It’s a similar situation with many RCI’s around the globe to only advise based on it’s findings, since that is often the mechanism of a public inquiry.