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Malaysia: Judiciary and corruption (For obvious reasons the legal jurisdiction of choice for Shell)

Introduction by Alfred & John Donovan

We recently published an article about the corruption crisis in the Malaysian judiciary.

CORRUPTION CRISIS IN MALAYSIAN JUDICIARY IMPACTS ON SHELL LITIGATION

We pointed out why EIGHT Royal Shell companies preferred to prosecute its defamation action against Dr Huong in Malaysia even though the alleged libellous comments posted on our website were posted by us, not by him.

The plain fact is that in Malaysia justice is available to the highest bidder and since Shell has considerably deeper pockets than Dr Huong, it will win the case even though Shell submitted false facts and has known this since July 2004 and that Dr Huong is completely innocent.

In the “Team A” retirement fund litigation against Shell in Malaysia, Shell had a decision overturned by Appeal Court judges who, as we indicated in the article, inexplicably ruled that Shell is incapable of fraudulent conduct. This is despite Shell’s recent track record of committing securities fraud and engaging in other unethical and illegal activity.

Ordinary people like Dr Huong, who is a deeply religious humanitarian, and the surviving members of the “Team A” class action against Shell (over 30 of the original 399 claimants have already died) must be appalled, disgusted and dejected by the realisation that after waiting years for justice they now know that they cannot win their cases on merit. Shell has the money and influence to guarantee the ultimate outcome.

The ruthless former Chairman of Shell Malaysia, Jon Chadwick, played the key role in ensuring the disputes ended up in the courts. He enjoyed an especially cosy relationship with the repressive Malaysian regime and in return was rewarded with the title of “Datuk”, the Malaysian equivalent of being made a Lord in Britain.  As far as Shell’s track record in terms of corruption is concerned, it has been so prevalent within its operations that it keeps official statistics.

“Judiciary and corruption”, a related article published by Aliran Monthly, a popular Malaysian magazine and website is printed below.

EXTRACT: Even the New Straits Times was moved to comment in an editorial that “questions are already being asked why the courts and judges are speedy in hearing commercial cases, especially when big companies and big business were involved, and the apparent ease with which parties choose courts to go to and which judge to seek out”

EXTRACT The image of the Judiciary has been severely battered and shattered through the unbecoming conduct and questionable behaviour of some unethical judges. They have insidiously and brazenly destroyed an institution that was in the past viewed with admiration and awe for its high standards of ethics and sound judgments. There is now an urgent need to restore and maintain the dignity, integrity, independence and impartiality of the Judiciary.

THE ARTICLE

A Royal Commission is urgently needed to purge the Judiciary of all the negative elements plaguing it

by P Ramakrishnan
Aliran Monthly Vol 25 (2005): Issue 1

Ever since Abdullah Badawi took over as Prime Minister of the country from Dr Mahathir, there have been many high-sounding pronouncements declaring an aversion to corruption. We have been led to believe that a total battle has been waged against corruption to eliminate it altogether.

After 12 months in the seat of absolute power, nothing seemed to have changed. If anything, corruption stares at Abdullah daily; it mocked him in September when the UMNO Supreme Council was elected. There were many allegations of corruption involving money politics. Indeed, there were proven cases of money politics and disciplinary actions have been instituted against party leaders who have been found guilty.

A whole lot of 11 traffic policemen from Bukit Aman were nabbed for accepting bribes recently in Karak. Likewise, there are many instances of corruption all over the country, involving contractors, civil servants, policemen, clerks, politicians and many others in positions of authority.

But corruption affects us most insidiously when we are made to believe that it exists in the Judiciary. This is not only disturbing but it is most devastating because the Judiciary is looked upon as the dispenser of justice. It is seen as the last hope for the weak seeking justice and protection against the powers of the state. But when that institution is seen to be corrupt it destroys our notion of justice and fairness.

This is why the Judiciary must be perceived as being honest and clean. And whenever some doubt is cast, an immediate investigation is necessary to cleanse the Judiciary and restore public confidence. Unfortunately serious investigations have not been the norm – very often such undertakings are meant to whitewash and pretend that everything is fine.

Litany of serious allegations

You may recall the incident of the poison-pen letter in 1996. It listed a litany of serious allegations – 112 in all – against 12 judges. Of the said total, 21 were allegations pertaining to the abuse of power, 39 of corruption and 52 of misconduct, immorality and other indiscretions. It claimed corrupt payments of RM50,000 with recipients graduating to accepting millions from named persons.

This poison-pen letter totally discredited the Judiciary and did irreparable damage. People were shocked into disbelief reading the detailed accounts of gross misconduct. It would have warranted a Royal Commission to investigate these allegations but that was not the case. An internal police investigation concluded that the allegations were “wholly untrue and baseless.”

If that was the case, why was no action taken against the writer for fabrication and false publication? Weren’t Lim Guan Eng and Irene Fernandez convicted for allegedly committing a similar offence? Was it the fear that the writer would spill the beans and reveal details of incriminating evidence that prevented an open trial?

The writer was believed to be Justice Syed Idid of the High Court and he should know better!

Appearing before preferred judges

You may recall the controversial Ayer Molek Rubber Co Case. This case exposed the scandalous situation in the Judiciary. Lawyers were found to file their cases in such a way that they could manipulate their way to appear before their preferred judges. This apparently was prevalent in cases involving commercial crimes.

Even the New Straits Times was moved to comment in an editorial that “questions are already being asked why the courts and judges are speedy in hearing commercial cases, especially when big companies and big business were involved, and the apparent ease with which parties choose courts to go to and which judge to seek out. This is inevitable when thousands of criminal and civil cases have been held up for years. Some remand prisoners have to languish in jails for years while waiting to stand trial.” (3 Sept 1995)

The Court of Appeal in this case went so far as to say that from the facts, it gave “the impression to right thinking people that litigants can choose the judge before whom they wish to appear for their case to be adjudicated upon.” The Court of Appeal pointed out that the High Court judge had ignored the provisions of the law and seemed to allege that injustice was indeed perpetrated by the court.

Justice N. H. Chan observed that the process of the High Court was abused and that the Court proceedings were manipulated to win the injunction against Ayer Molek.

He asserted that the “plaintiffs through their legal advisers have abused the process of the High Court by instigating the injustice through misuse of the Court’s procedure by manipulating it in such a way that it became manifestly unfair to the defendants.”

He added that “by doing what they did, these unethical lawyers have brought the administration of justice into disrepute among right thinking people.”

Justice N H Chan in that famous quotation remarked, “All is not well in the House of Denmark.” It is a damning indictment. Incidentally, the Court was housed in the building called “Wisma Denmark.”

Of course, the Federal Court overruled this judgment. Chief Justice, Tun Eusoff Chin, in delivering judgment asked, “Why should the learned judges of the Court of Appeal go on a frolic of their own and find fault with the High Court judge, criticize the conduct of the applicant’s solicitors in a very disparaging manner?”

Inexplicably, Eusoff Chin ordered the damning remarks of the Appeal Court judges to be expunged from the records. Why? Was it because they were incriminating and exposed the rot in the Judiciary?

But the composition of the Federal Court which heard and decided the appeal was clearly unconstitutional according to Article 122(2) of the Malaysian Constitution, thus rendering its decision null and void and of no consequence. Yet, that ruling, void as it was, still stands as a terrible injustice mocking the Judiciary.

Improper behaviour

You may recall that in early 1998 photographs of Tun Eusoff Chin, the Chief Justice, holidaying in New Zealand with a lawyer who also had appeared before the same judge were published on the Internet. This rightly caused an uproar. This was improper behaviour and that such socializing was not consistent with the proper behaviour of a judicial personality, observed Dr Rais Yatim.

This was a scandalous episode that did irreparable damage to the Judiciary. It is totally unpalatable that the cause of this damage should be the Chief Justice of Malaysia himself.

You may recall what the High Court Judge Datuk Muhammad Kamil bin Ahmad had to say when declaring the State election held in March 1999 for the Likas Constituency in Sabah null and void. He revealed that he had received directive over the phone to strike out the two election petitions without a hearing.

The Malaysian Bar viewed this blatant and corrupt attempt as an “affront to judicial integrity and independence of the learned judge and the Rule of Law” and called for action by the authorities concerned. As to be expected, nothing transpired. But when Anwar allegedly instructed the police regarding his case he was convicted for corruption.

Grave wrong must be righted

Similarly, there is still grave concern about the Judicial Crisis of 1988. What transpired – the intrigue, the plotting, judiciary conspiring with the executive – is still crying out for justice and demanding that a grave wrong be righted.

Likewise, the choice of the judge and the manner by which the judge was chosen to hear the Anwar case has to be investigated. The way the judge became an active combatant in this case rather than adopting a strict neutral stance needs to be looked into. Why evidence given under oath had to be expunged when the case wasn’t going well for the prosecution has to be clarified.

This entire sordid and shameful episode surrounding this case which was reeking with injustice was very aptly summed up by the Chairman of the Bar Council then, R. R. Chelvarajah, “The unusual manner in which the trial itself was conducted – for example, the refusal of bail; the expunging of evidence given on oath; preventing the accused from raising every possible and conceivable defence and limiting him to particular defences; compelling the defence to state beforehand what evidence the defence sought to adduce through various witnesses; disallowing witnesses from testifying and making rulings as to their relevancy without first hearing their testimony; citing and threatening defence lawyers with contempt proceedings including sentencing a defence lawyer to three months, imprisonment for contempt while in the exercise of their legal duties – raises questions impinging on the administration of justice.”

It is imperative that the actions and conduct of the judges must be beyond reproach and above suspicion and be seen and perceived to be so if they are to command the respect and confidence of the public.

The image of the Judiciary has been severely battered and shattered through the unbecoming conduct and questionable behaviour of some unethical judges. They have insidiously and brazenly destroyed an institution that was in the past viewed with admiration and awe for its high standards of ethics and sound judgments. There is now an urgent need to restore and maintain the dignity, integrity, independence and impartiality of the Judiciary.

This can only be achieved when a Royal Commission is established in an honest attempt to restore its lost respect and confidence and purge the Judiciary of all the negative elements plaguing it.

Aliran Monthly.

http://www.aliran.com/oldsite/monthly/2005a/1i.html

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