BOMBSHELLS FROM A JUDGE By George Lo On 9 June 2008, Justice Ian Chin, a judge of the High Court, made certain disclosures in the course of hearing an election petition. The disclosures he made were reported in the Borneo Post on 10 June 2008 and by the national media a day later. The fact that a judge makes disclosures before hearing any matter is not uncommon. He has a duty to inform the parties before him if he knows of some facts which may call into question his impartiality. Having made the disclosure, it is then up to the parties to decide if they wish to apply for his recusal (disqualification) from hearing the case. In this instance, the disclosures Chin made have variously been described as ‘startling’ and ‘explosive’. In open court, the judge spoke of attempts by the former administration to control the judiciary and influence the judgments of judges. He claimed that he and selected judicial officers were packed off to boot camp in “an attempt to indoctrinate those attending the boot camp to hold the view that the government interest as being more important than all else when we are considering our judgement”. Chin also brought up an episode where another High Court judge Datuk Kamil Awang had informed him of a telephone call directing Awang to dismiss an election petition he was hearing at that time. Chin’s account of this is corroborated by Awang’s judgment in Harris Mohd Salleh vs The Returning Officer, Ismail Majin & Ors [2001] 3 CLJ 161 where the judge had said “The only guide to a man is his conscience, the only shield to his memory is the rectitude and the sincerity of his action. In my view, it is an insult to one’s intelligence to be given a directive over the phone that these petitions should be struck off without a hearing, and above all, it is with prescience conscience that I heard these petitions.’’ After having made the disclosures on 9 June 2008, Chin asked counsels for the parties to the election petition if they wished to recuse him. Both counsels expressed their confidence in him continuing to hear the case. Reactions to the disclosures came swiftly from various quarters. It was reported on the Malaysian Bar website (http://www.malaysianbar.org.my) that “Former Attorney General Abu Talib Othman today slammed High Court Judge Ian H.C. Chin claiming that former Prime Minister Dr Mahathir Mohamad had threatened judges during his premiership.” MBW further reported that “Abu Talib who is also Human Rights Commission (Suhakam) chairman said the judge, ‘should not talk about this outside the court, his action was inappropriate because his allegation was not related with the cases which he is handling now’.” Abu Talib erred on two counts. Chin was not speaking “outside the court”. The disclosures were made by him in open court and constituted part of the notes of proceedings in the election petition. And it is not necessary that such disclosures must relate to the case the judge is handling. Any fact or matter (however unrelated) which may create an impression of bias on the part of the judge must be disclosed by him to the litigants. It is often said “Justice must not only be done, but it must be seen to be done”. Three retired judges interviewed by MBW (Tan Sri Lamin Yunus, Tun Mohamed Dzaiddin Abdullah and Datuk Shaik Daud Mohd Ismail), said they could not recall what was said at the conference in which Chin alleged that veiled threats had been made against the judges. An inability to recall a ‘veiled threat’ is, of course, quite different from a positive assertion that no such threat was made. An unnamed serving judge was reported in MBW to have said “I felt Chin took the opportunity to speak from the Bench because he thought Dr Mahathir was responsible for blocking his promotion.” Echoing his words, the Malaysian Insider (http://themalaysianinsider.com) reported that “Lawyer Matthias Chang today alleged that High Court judge Datuk Ian Chin made his recent disclosure of judges being threatened by former Prime Minister Tun Dr Mahathir Mohamad because he was not promoted.” It was also reported that Chang was former political secretary to Dr Mahathir. The claims that Justice Ian Chin made the startling disclosures out of his unhappiness at being passed over for promotion must have swayed the views of some people. After all, Chin is the most senior serving High Court judge in Malaysia. Other more junior judges had gone on to the Court of Appeal or even the Federal Court. MBW further reported “Chang said to refer to a conference of judges and judicial officers as a ‘boot camp’ to be ‘indoctrinated’ is to use language unbecoming of a judge.” Here, Chang was confused. The ‘boot camp’ that Chin referred to took place more than a month after the conference of judges. In response to Chin’s disclosure, West Malaysian Bar Council President Datuk Ambiga Sreenevasan called for a Royal Commission of Inquiry to be set up to investigate the revelations by Chin. She said “Inaction is not an option”. However, the Star on 14 June 2008 reported that “de facto Law Minister Datuk Zaid Ibrahim said while there was no reason to doubt Justice Chin, a Royal Commission would be a waste of money and time as investigations would reveal nothing more than ‘what we have already known’.” Whilst I have been supportive of Zaid and the reforms he has initiated ever since his appointment, I must disagree with him this time. When is investigation of corruption ever a waste of taxpayers’ money? Zaid says he does not doubt Chin. That being the case, there is no reason why the calls by the Bar Council for an open inquiry should be dismissed out of hand. The matter does not end there. The election petition had been part heard on 12 June and adjourned to 7 July for continuation. On 24 June at 4 pm Chin called up the case for mention in the Sibu High Court. At the outset, he said: “I have fixed this case for mentioned today because things have been said since the last adjournment which impugned on my integrity resulting in a question mark as to whether I am suitable to be a judge any more and therefore, in respect of this case, whether I should continue to hear it anymore.” He went on to deliver a 15 page statement. The full text can be read on the MBW website (http://www.malaysianbar.org.my/selected_judgements). The first point Chin made was a rebuttal of the allegation by the unnamed judge that he had made the first statement out of spite because he thought Dr Mahathir was responsible for blocking his promotion. Chin produced 2 letters he had written to a former chief judge and a former chief justice as evidence that, even as far back as 2002, he had taken a stance that he had no interest in promotion. In a short letter dated 22 March 2002 addressed to Tan Sri Mohamed Dzaiddin (the then Chief Justice of Malaysia), Chin wrote: “In order not to inconvenient Yang Amat Arif, even though I may sound presumptuous, I wish to put on record that I do not wish to be considered for appointment to the Court of Appeal.” Unless the letter is a fabrication (which is highly unlikely), it takes the wind out of the sails of those who accuse Chin of being aggrieved as a result of being passed over for promotion. This, however, does not explain why Chin took about 10 years before making the disclosures he did. The events he complains of took place at the judges’ conference in 1997 and shortly thereafter. One may venture to guess that he thought any statement by him would fall on deaf ears. Perhaps Chin is now emboldened to speak up by the findings of the Royal Commission in the Lingam video affair. He does not say why he is breaking his silence now and leaves this to us to speculate. Throughout his statement, Chin lashed out at the unnamed judge and Dr Mahathir in highly emotional terms which may be reflective of a decade of anger and frustration at what he perceived as injustice endured without hope of remedy. It is quite unfortunate, though, that the use of such intemperate language by a judge may actually distract from and reduce the impact of the more important aspects of his disclosures. Without intending any disrespect to the judge, I am of the view that the language he used to describe Dr Mahathir and other unnamed parties have no place at all in judicial pronouncements, whether it be in a judgment or statements made in the course of proceedings. Arguably the most interesting part of Chin’s statement deals with his attendance at a camp that he refers to using the military jargon ‘boot camp’. According to dictionary.com, ‘boot camp’ is defined as “a correctional facility that uses the training techniques applied to military recruits to teach usually youthful offenders socially acceptable patterns of behaviour.” There is apparently no dispute that Chin and other judicial officers were sent to attend a camp. In fact, Dr Mahathir himself referred to such a camp. In his blog, replying to Chin’s allegations, Dr Mahathir called it a ‘work camp’ at which courses on “Tata Negara” or “National Creed” were conducted. He explained that “At such courses the speakers try to explain Malaysia’s political system with particular reference to the BN concept, ethics and moral values and democracy in Malaysia.” Whether it was a ‘boot camp’ or a ‘Tata Negara’ camp, there is absolutely no rationale for judges to be sent to such camps. We cannot forget that the judiciary is a separate and independent arm of the government. It is not subservient to the executive. Judges do not need to be taught about Malaysia’s political system, much less the concepts behind a political party. What was even more shocking was the little insight that Chin gave us into what allegedly happened at these camps. Chin claimed that senior judges were made to take orders from junior officers. A sessions court judge who dared to question this was forced to publicly apologise on a podium to his junior officer for it. Judges were forced to carry an egg wherever they went, and even made to march carrying the egg. A judge who broke his egg was punished by being made to carry a brick around instead of the egg. It is just too incredible. It surely cannot be true. Yet it cannot be dismissed as some fantasy tale, the reason being the allegations are made by the most senior serving High Court judge in Malaysia. Before this latest revelation by Chin, Dr Mahathir had stated in his blog (http://test.chedet.com/che_det) that “I will be writing a little more on Ian Chin J so that the public will become more acquainted with him. Suffice for me to say for the present that Chin J has a police report against him for hiding his past when hearing a certain case.” Chin answered this by saying that he is as “clean as a whistle” and that his life is an open book. The judge has apparently thrown down the gauntlet to the former prime minister. The rest of us can only sit here, captivated and slack-jawed with disbelief. What is going to happen next is anybody’s guess. The deeply troubling part is the fact that, if Chin’s allegations are true, then the findings of the Royal Commission into the Lingam video affair may only be the tip of the iceberg. Despite strident calls by various quarters, it seems that we are unlikely to have another Royal Commission to investigate this latest unwelcome episode in our judicial history. But without one, we may never know the truth of what actually happened.