(Sept 11): The Malaysian Bar notes with deep concern the report by The Edge Malaysia concerning former High Court judge Datuk Syed Ahmad Idid Syed Abdullah and the pension that he has reportedly not received since his forced resignation from judicial office in July 1996.
Syed Ahmad Idid’s experience followed his disclosure of serious concerns about the Judiciary — we understand that there was a confidential 33-page memorandum detailing 112 specific allegations of, among others, corruption, abuse of power, personal misconduct and other indiscretions within the Judiciary. We further understand that he had sent this memorandum to then-Chief Justice Tun Mohamed Eusoff Chin and three others. He exposed Mohamed Eusoff Chin and lawyer Datuk V K Lingam holidaying together in New Zealand — an act which violated the Judges’ Code of Ethics 1994 (the Judges’ Code was launched by Mohamed Eusoff Chin himself just four days before he departed for New Zealand). The matter was then handled unsatisfactorily by the late attorney general, Tan Sri Mohtar Abdullah (later a Federal Court judge), who notoriously denounced it by referring to it as an “Ides of March” move.
Royal Commission of Inquiry into the V K Lingam video clip
The 2008 Royal Commission of Inquiry (RCI) into the V K Lingam video clip recorded a strong prima facie case that the relationship between Mohamed Eusoff Chin and V K Lingam was extremely close and recommended fresh investigations under the applicable laws. Yet, there has been no satisfactory public account of consequential action.
From parliamentary debate to present action
During the parliamentary debates on the Judges’ Remuneration (Amendment) Bill 2013, when challenged to substantiate allegations of judicial misconduct, the current prime minister (who was in Opposition at the time) personally defended Syed Ahmad Idid’s conduct, asserting that it was a judge’s formal disclosure to the government, which detailed specific allegations against members of the Judiciary and pointed to the unresolved scandal of the former Chief Justice’s holiday with V K Lingam, in regard to which no action had followed. In the same debate session, Datuk Seri Anwar Ibrahim was quoted citing Caroline Kennedy, the then-US of America’s ambassador to Japan, in the following terms:
“The bedrock of our democracy is the rule of law and that means we have to have an independent Judiciary, judges who can make decisions independent of the political winds that are blowing.”
Miscarriage of justice — Syed Ahmad Idid’s pension
In 2008, the government made ex gratia payments to former Lord President Tun Salleh Abas, and five former Supreme Court judges affected by the 1988 judicial crisis. Syed Ahmad Idid was not included and no subsequent exercise has made good the injustice inflicted upon him. This is a miscarriage of justice. The Malaysian Bar, therefore, calls upon the government to restore his full pension, including all arrears due.
A crippled law — Malaysia needs proper whistle-blower protection
The Whistleblower Protection Act 2010 did not exist in 1996 and does not operate retrospectively. Even today, its protection remains tied principally to disclosures made to enforcement agencies and falls far short of the comprehensive protection required for whistle-blowers. This Act must be reformed to enhance whistle-blower protection. Echoing Transparency International Malaysia, Malaysia must honour its obligations under Article 33 of the United Nations Convention against Corruption (UNCAC) by protecting whistle-blowers who report corruption in good faith from unjust treatment. UNCAC Resolution 10/8 calls on governments to provide effective protection against retaliation, apply a reasonable belief standard and ensure that confidentiality rules are not misused to conceal corruption or penalise reporting persons.
Looking ahead
This dark episode is also another compelling reason to separate the offices of the attorney general and the public prosecutor. The public prosecutor’s office must be structurally independent, impartial and beyond suspicion, particularly when decisions to investigate or prosecute concern those who hold public office and wield the power that comes with such office.
The former Lord President, Tun Mohamed Suffian Hashim, famously and presciently said that the 1988 judicial crisis would take a generation to overcome. It set in motion the events that culminated in the RCI. Regrettably, these twin calamities have proved Tun Suffian right.
The government now has a historic opportunity to repudiate the past to enable the nation to progress. The Malaysian Bar urges the government to do the right and honourable thing.
Reforms are meaningless unless we right the wrongs of yesteryears. As wisely said by George Santayana:
“Those who cannot remember the past are condemned to repeat it.”
Restoring Syed Ahmad Idid’s pension cannot return the years taken from him. It can, however, affirm a principle indispensable to an independent Judiciary and the rule of law, that integrity must not be punished and that the Judiciary must be, and remain, steadfast in upholding the rule of law and incorruptible.
Anand Raj is the Malaysian Bar president.