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.