By John Donovan
We have recently published articles relating to former Shell employees involved in litigation with Shell Malaysia.
“TEAM A” CASE: 399 SHELL PENSIONERS SUING SHELL
In a pension fund case involving 399 Shell Malaysia pensioners, an appeal court overturned a Judgment that Shell had made unlawful deductions from their retirement funds. One of the grounds cited in the appeal court judgment was that Shell was not capable of wrong doing: clearly absolute bunkum bearing in mind Shell’s atrocious track record of securities fraud and other serious misdeeds which have attracted hundreds of millions of dollars in fines and court settlements. Many of the “399” claimants are elderly, sick and dying. 34 have already died. The Malaysian judiciary has let them down in the most dubious circumstances. “Team A” have applied for leave to appeal to the Federal Court.
FORMER SHELL PRODUCTION GEOLOGIST DR JOHN HUONG
In another dreadful example of injustice, eight Royal Dutch Shell companies have since June 2004 persecuted Dr John Huong by bringing multiple proceedings against him, including a defamation action, injunctions, and even a contempt of court case demanding his imprisonment. This is despite knowing since early July 2004 that they are suing the wrong party in the wrong legal jurisdiction. Even though over three years have passed in which Dr Huong has been unable to obtain employment with the draconian proceedings hanging over his head, Shell has not pressed the original proceedings beyond initial formalities. There has been no witness statements, no discovery and no case management plan. Shell is happy to keep Dr Huong in legal limbo rather than bring the main action before the Courts. What is happening is a disgraceful breach of his human rights.
One of our most recent articles focused on the meltdown of confidence in a corruption ridden Malaysian judiciary which resulted in a protest march by 800 Malaysian lawyers. I can only speculate on how Team A and Dr Huong feel knowing that justice in Malaysia can be bought by the party with the deepest pockets. A depressing prospect when your opponent is one of the worlds richest and most ruthless multinationals.
The following are self-explanatory astonishing extracts from the opening address by HRH Sultan Azlan Shah at the 14th Malaysian Law Conference as reported on the Malaysian Bar website on Monday, 29 October 2007.
“The [mere] existence of courts and judges in every ordered society proves nothing; it is their quality, their independence, and their powers that matter.”
In matters concerning the judiciary, it is the public perception of the judiciary that ultimately matters. A judiciary loses its value and service to the community if there is no public confidence in its decision-making.
In this regard the principal quality a judiciary must possess is “impartiality” Lord Devlin said of “judicial impartiality” that it exists in two senses-the reality of impartiality and the appearance of impartiality. He emphasized that the appearance of impartiality was the more important of the two.
Impartiality also means that judges are not only free from influence of external forces, but also of one another. No judge however senior can dictate to his brethren as to how a decision should be arrived at.
It is of the essence of a judge’s character that he must be a person of unquestionable integrity who brings an unbiased mind to his task. Like Caesar’s wife, he should be above suspicion.
It is said that public confidence in the judiciary is based on four evaluating criteria. They are:
(1) the principle of independence of the judiciary;
(2) the principle of impartiality of adjudication;
(3) the principle of fairness of trial; and
(4) the principle of the integrity of the adjudicator.
How does our judiciary measure today against these criteria?
Sadly I must acknowledge there has been some disquiet about our judiciary over the past few years and in the more recent past. In 2004, I had stated that it grieved me, having been a member of the judiciary, whenever I heard allegations against the judiciary and the erosion of public confidence in the judiciary.
Recently there have been even more disturbing events relating to the judiciary reported in the press. We have also witnessed the unprecedented act of a former Court of Appeal judge writing in his post-retirement book of erroneous and questionable judgements delivered by our higher courts in a chapter under the heading “When Justice is Not Administered According to Law”. There are other serious criticisms.
Judges are called upon to be both independent and competent. In these days, judges must ever be mindful that the loss of independence can come from many sources, and not just from the executive. Therefore, judges must piously resist the lure of socializing with business personages and other well connected people. They may discover at their peril that they have compromised themselves in the cases that come before them with the unedifying spectacle of recusal applications.
Nothing destroys more the confidence the general public, or the business community has in the judiciary than the belief that the judge was biased when he decided a case, or that the judge would not be independent where powerful individuals or corporations are the litigants before him.