The Affidavit is 65 page long with 152 numbered paragraphs. Those who won’t read the full Affidavit but wishes to know the full content are in for luck because below is a 5-page summary of the Affidavit’s content.
SUMMARY CONTENT OF THE AFFIDAVIT
Purpose of the Affidavit
The affidavit by Court of Appeal Judge, Justice Hamid Sultan Bin Abu Backer (hereinafter referred to as "Deponent") was filed to expose scandals and to protect Administration of Justice. It was filed upon Karpal Singh's daugther, Sangeet Kaur Deo’s request to support her application to call for Royal Commission of Inquiry (RCI) relating constitutional crime and judicial misconduct by top judges. The Deponent justifies the necessity for a RCI by revealing various incidents indicating scandals and misconduct in the judiciary.
Revelation of Scandals and Judicial Misconduct
1. Top Judge Italian Lunch before GE-14
1 month before GE-14, Deponent had lunch with a top judge and other judges. The top judge and some judges express concerned of being removed or tribunalised if the opposition win the election. If the judges had not done anything wrong, why should they be worried of a change of government?
Deponent told a senior judge and a Federal Court judge to write to other judges to see if they will resign en bloc. When members of Old Regime were appointed after election, these judges who were scared became extremely happy and knew that it was business as usual. They now look forward to top positions upon vacancy. Pressure came to increase retirement age of judges to 70.
2. Anwar’s Case is Fixed
The judges in Court of Appeal and Federal Court are all Muslim judges and almost all came from the same university or service. It is not fair considering mix population of Malaysia. Anwar’s fate was fixed by judicial rowdies.
Any judge in any court must be free to make judgment independently without interference from even top judges whom have no constitutional mandate to interfere. However, a Chief Justice whom the Deponent call (Antagonist of Rule of Law and Constitution = ARLC) and who sat in Anwar’s case is known for judicial interference. Court of Appeal judges in Anwar’s Appeal were regularly called to the chambers of top judges to be briefed. Court of Appeal's decision before pronouncement was initially ‘acquittal’ by majority, but due to request from one top judge, Anwar is convicted.
The issue for Anwar’s case was whether prosecution proven the case beyond reasonable doubt, not whether Anwar committed any crime. The prosecution was not able to prove the case according to law. There is no fair trial. The Court of Appeal and Federal Court brushed aside this issue and dug for evidence to justify a conviction. In addition to the 5 years sentence, Anwar’s case is a judicial tragedy.
3. Karpal Singh Convicted by Direction
In Karpal Singh's sedition case, Karpal Singh was initially acquitted by majority but the verdict was changed to conviction by a top judge. A senior most judge of the Court of Appeal which decided the Karpal Singh case confessed on this. One Malay lady judge refused to abide by ARLC instruction. As a result, she was deliberately bypassed for promotion to Federal Court in the present of current Chief Justice (“CJ”) and one of the top judges. She was severely victimized. She and her family suffered undue stress.
4. Interference in Karpal Singh’s case
At first appeal to Court of Appeal, a top judge in that case wrote a judgment that gives wide meaning to the phrase ‘seditious tendency’ in breach of Federal Constitution. This allow many opposition party members to be charged and cannot stand for election.
5. Maharajalela ARLC’s Rowdies Group
80% or more judges come from same university or service. Many judges in apex courts are single degree holders and many do not have enough number of judgments for elevation. ARLC made use of this weakness to create a group of rowdies. ARLC became like Maharajalela to tell what judges should do and write. ARLC even told Court of Appeal judges he don’t agree their judgments. Unfair selection process for promotion is sufficient for members of same university or service to support wrongdoings of top judges. Some call the Rowdies Group “Hit Squad”.
6. Judges' Retirement Benefits
Just before the CJ who decided Anwar Case retire, a minister praises him that government will not forget all the good things he has done, indicating good post-retirement benefits for the CJ. A Federal Court Judge in Anwar’s case said he is meeting the Deputy Prime Minister urgently 1 day before his retirement. This is against separation of powers.
7. Additional Judge and Retirement Age
A registrar told Deponent 2 top judges sustain their position as Additional Judge despite their retirement age with the help, finance and assistance from one arbitral institution. The then PM suggested the CJ and ARLC to continue as additional judge. Top judges are negotiating to increase retirement to 70 and the old cabinet has approved it. Top judges do not fear constitutional challenges on this issue because they have sufficient number of judges obligated to them.
Bar Council’s action to challenge this issue was not heard. After GE-14, 2 judges in the corum of the Bar Council’s case resigned. Finally one judge decided on behalf of the penal that the question is academic (so the case was not heard).
8. Statutory Code of Ethics introduced by Top Judges
The Code is formulated by top judges, including current CJ. The Code contain provisions in breach of Federal Constitution, made judges clear back log of cases in uncivilized manner by directions, and compromising judicial integrity and quality. The Code deprives judges of independence. Judges have no role in cleaning toilets but due to the Code judges are obliged to follow the order to clean toilet by the CJ. The Code must be repealed replaced by an internal code of ethics by agreement of all judges. The Code must require judges to bring up misconduct by other judges.
9. Judgments Controlled by Top Judges
Judicial fixing of coram to achieve desired result in favour of past government was rampant. In a case brought by current PM, the High Court judge was told by ARLC to dismiss the case. Judicial interference was rampant. Most constitutional judgment was controlled by top judges to support past government.
10. Judges are Expected to be Pro-Government
In a 3 judges coram case, Deponent decided s.27 of Police Act 1967 is unconstitutional. One judge agree with Deponent. The other judge that doesn’t agree said “if you follow Hamid’s draft it will create Arab Spring and there will be unrest to topple the government”. Deponent was told “if you write (judgment) like this you will have no future in the judiciary”. The then CJ told deponent “if the government was not happy with you if I recommend a promotion it will be rejected”. One judge told Deponent anybody seeking promotion must make decision in favour of government.
11. Federal Court Removes ‘Threat’ from Court of Appeal Judges
The Deponent sat in a 3 judges coram case where all 3 judges wrote separate grounds and all of them decided some parts of the Peaceful Assembly Act 2012 are unconstitutional. It is a historical decision and not appealable due to protection by Article 7 Federal Constitution. The decision allow opposition and NGO to demonstrate peacefully on public interest issue. Federal Court judges were stressful that it will cause the Arab Spring but cannot overrule the decision because it is a case from subordinate court and the right of appeal end at the Court of Appeal.
Federal Court judges dislike the Deponent for his decision. The other 2 judges retired. After the case, top judges suggest that all constitutional issue must be dealt by Federal Court and not Court of Appeal. ARLC then overrule the effect of that decision in another case, which made the law in favour of the government.
12. Deponent Reprimanded for Dissenting Judgment Indira Ghandi Case
The Deponent is reprimanded and harassed in an uncivilized manner for his dissenting judgment in Indira Ghandi case. ARLC called the judges in the case, reprimanded the Deponent and disclosed the unhappiness of Federal Court top judges in respect of the Deponent’s constitutional judgments. Deponent suffered great mental stress and immediately informed Bar President of the reprimand. News spread like fire and Deponent consider leaving the judiciary. Members of the Bar asked the Deponent not to make hasty decision and take it as a challenge.
Then, the Deponent's statement of reprimand was flashed in all newspapers. Drama went on to exert pressure on the Deponent to get him to help ARLC. In a particular meeting, atmosphere was nearing a position of physical violence. Deponent was accused of not being a good Muslim. Deponent wanted to lodge a police report but later did not due to advice by other judges.
13. Deponent Targeted for Stopping Governmental Contracts that Defraud Public Funds
Government will enter contract with political nominee without intention to honour them. Government then terminate the contract. Nominee will sue the government. Government then record consent judgment to accept liability and pay damages to the nominee.
The Deponent stop this by developing a jurisprudence in a number of cases that will make the contract unenforceable on public policy grounds. ARLC is upset. Deponent was informed in advance that ARLC wanted to make fun of this jurisprudence in a talk at Palace of Justice. To avoid that, Deponent arranged a meeting in Terengganu University to brief his concept. ARLC even asked someone to check if Deponent really went to Terengganu. Deponent is targeted.
14. No response to criticism
Many eminent lawyers and writers address judicial issues in their articles. Deponent publicly complained of judicial misconduct in IMLC 2018. Sangeet Kaur Deo filed police report relating to Karpal Singh’s case. Bar Council demanded for RCI twice. However, top judges were silent for selfish interest such as promotion etc. Current CJ did not seek RCI. Deponent inform the CJ about the anonymous letter with detailed particulars of criminal offence but Deponent did not see any action by CJ.
Conclusion
Royal Commission of Inquiry (“RCI”) is necessary to clean the image of good judges and judiciary and to boot out the judicial rowdies. Meritocracy must be the selection process for top positions. Deponent stand against the judiciary as ‘lonely voice’. Deponent hope other members of judiciary will join hands to clean the judiciary and save Malaysia. RCI is the most appropriate solution to address the perceived judicial scandal.
The Deponent knows more details about the matters mentioned above but will only reveal more to the RCI when it is formed.
This affidavit is made without fear or favour.
The Deponent
The Deponent is a judge of the Court of Appeal.
Deponent's works:
He described himself as a critic of judiciary and refer to his article “Syariah Law, Administration of Justice and the Federal Constitution” in 1995 that says intellectually dishonest, morally corrupt and judicially incompetent judges should not be allowed to uphold the rule of law.
Deponent served as elected council member of Bar Council received number of complaints of judicial misconduct but there is very little Bar Council could do.
Deponent took PhD in civil procedure and justice to address misconduct of judges dismissing cases without hearing merits.
Deponent published an article in INSAF in 2003 about judicial integrity.
Deponent exposed judicial misconducts in his paper [2018] 1 LNS(A) Ixxxiv and concluded that without Judicial Dynamism, Rule of Law is meaningless.
Deponent wish to be remembered not as any Hamid, but Justice Hamid who served Malaysian Judiciary without fear or favour. The Deponent also reiterate his CV in the Affidavit.
-End of Summary-
Disclaimer: Wordings of the Affidavit may be replaced and sentences reworded for purpose of the summary and the original meaning or intention of the Deponent may be altered unintentionally. Readers are encouraged to read the full and original Affidavit to verify the actual content of the Affidavit.
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