Ahmad Fairuz is not fit to continue for a single day as Chief Justice

I am calling this media conference to prove that the Chief Justice, Tun Ahmad Fairuz Sheikh Abdul Halim had misled Parliament in his denial that he had advocated the abolition of the Common Law at the seminar on the thoughts and academic works of the late Tan Sri Ahmad Ibrahim two months ago on August 21, which made the front-page headline, “Mansuh Common Law — Ketua Hakim Negara mahu perundangan lapuk Inggeris diganti”, in the Utusan Malaysia the next day.

On 5th September 2007, the Minister in the Prime Minister’s Department, Datuk Seri Nazri Aziz replied in Parliament to my earlier speech criticizing Ahmad Fairuz’ call for the abolition of the common law system as being most unbecoming of the highest judicial officer of the land sworn to defend and uphold the Constitution and the Merdeka social contract.
Nazri gave a flat denial that Ahmad Fairuz had ever made such a call for the abolition of the common law system saying that the Chief Justice’s speech made no such mention whatsoever.

Nazri blamed reporters and their poor quality reporting for the mistake. However, when I asked why no correction had been made by Ahmad Fairuz for close to two weeks of the public controversy over his call, Nazri said Parliament was the best forum for the explanation.

Nazri also made the following claim:

“Hari pertama perkara ini keluar, Ketua Hakim telah menghubungi saya untuk menyatakan bahawa itu merupakan satu perkara tidak benar yang dituliskan dalam akhbar. Saya tidak menyalahi beliau kerana dengan izin I have got bad experience juga dengan surat khabar. Apa juga yang kita nafikan yang dilaporkan mereka, tidak mendapat tempat yang sama seperti mana mereka telah melaporkan sehari sebelum itu sebab credibilitynya. Saya rasa, pada saya, it is a waste of time.”

It is significant that up to now, Ahmad Fairuz had neither refuted nor confirmed Nazri’s denial on his behalf that he had ever called for the abolition of the common law although the Chief Justice should know that his call had set off a public controversy in legal circles and the public domain which is still raging on.

Did Ahmad Fairuz call for the abolition of the common law in Malaysia 50 years after independence?

I have here a tape recording of Ahmad Fairuz media interview after his opening speech at the seminar on the thoughts and academic works of the late Tan Sri Ahmad Ibrahim on August 21, which clearly confirmed his call for the abolition of the Common Law, viz:

“My own opinion I think there is no need for us to go to the Common Law of England now. We have a lot of our pakar undang-undang sekarang ini yang boleh memberi pendapat masing-masing mengenai undang-undang bagaimana cara nak solve undang-undang. Why should we go to Common Law?”

Earlier, Ahmad Fairuz told the press about his proposal at the seminar:

“I am just suggesting to the seminar, perhaps they can look into this matter, whether you want to still maintain and keep this position ataupun you show to the government that we can put another substitute to this method, why go to Common Law? And pulak tu tahun 1957?”

Ahmad Fairuz is not fit to continue for a single day as Chief Justice. If he could use Nazri to mislead Parliament to deny on his behalf that he had advocated the abolition of Common Law in August, when he had actually done so as proven by this Fairuz Tape, he could easily mislead Nazri a second time to issue the denial that he was the other party in the Lingam Tape.

In his 55 months as Chief Justice since March 2003, Ahmad Fairuz had brought the judiciary into a new crisis of confidence and greater national and international disrepute joining the ranks of Tun Abdul Hamid Omar (1988 — 1994) and Tun Mohamed Eusoff Chin (1994 — 2000) as the three Chief Justices who had brought shame and ignominy to the Malaysian judiciary and system of justice.

It is a national tragedy that Ahmad Fairuz had not chosen to join the ranks of illustrious Lord Presidents like Tun Mohamed Suffian Mohamed Hashim (1974 — 1982) and Raja Tun Azlan Shah (1982 — 1984) who had won international respect and standing for the Malaysian judiciary and system of justice which had been dissipated away in the past two decades of one judicial crisis after another.

Writing in April 2004 in his book “Constitutional Monarchy, Rule of Law and Good Governance”, former Lord President Sultan Azlan Shah observed:

“Concerns have been expressed that some judges were not writing judgments, or that there were long delays in obtaining decisions or hearing dates in certain instances. Further, the conduct of certain judges was being questioned in public… Whether these allegations are true, is not for me to say. However, having been a member of the judiciary for many years, it grieves me when I hear of such allegations. Since Independence, the early judges have always cherished the notion of an independent judiciary and had built the judiciary as a strong and independent organ of government. The public had full confidence of the judiciary and accepted any decision then made without any question. Unfortunately, the same does not appear to be the case in recent years.”

Sultan Azlan Shah’s critique of the parlous state of the judiciary is even more pertinent today than when he wrote it in April 2004, the entire period falling under the term of Ahmad Fairuz as Chief Justice — a powerful reason why it does not serve the national interest for Ahmad Fairuz to continue an extra day as Chief Justice.

In the media interview on August 21, Ahmad Fairuz was also asked about the scandal of a Federal Court judge who had an outstanding arrears of over 30 grounds of decisions as High Court judge which had not delivered.

It is significant that at the time, Ahmad Fairuz gave a blanket denial that there was such a Federal Court judge, even moralising:

“It is very dangerous when we said something which is not the truth. In Islam it’s called fitnah. It is very bad. You don’t say anything which is not the truth. You check first then you say it.”

However, when New Straits Times a few days later front-paged a report that a Federal Court judge had not written grounds of judgment in 33 criminal and civil cases, which were thus stuck in the appeals process; and DAP Chairman and MP for Bukit Glugor, Karpal Singh named in Parliament the Federal Court judge concerned, Datuk Hashim Yusoff, who had accumulated 35 unwritten judgments; the Prime Minister, Datuk Seri Abdullah Ahmad Badawi broke his silence just before the 50th Merdeka anniversary celebration on August 28 that the Chief Justice must answer the allegation that a senior judge had failed to write the grounds of judgment in over 30 cases.

On Sept. 5, Ahmad Fairuz announced that he had written to the Prime Minister about the Federal Court judge who had not written his grounds of judgment in 35 cases when he was High Court judge but he declined to disclose what he had told the Prime Minister.

The Prime Minister was right to demand judicial accountability from the Chief Justice, but Ahmad Fairuz had also violated the doctrine of the separation of powers in only accounting directly and personally to the Prime Minister when he owes to the entire Malaysian public the responsibility of judicial accountability.

Up to now Malaysians have been denied information about the scandal of the Federal Court judge who had accumulated 35 unwritten judgments from his High Court tenure, which is also a most adverse reflection of Ahmad Fairuz’ judicial leadership.

There are ample grounds to indict Ahmad Fairuz for his failure as Chief Justice to restore national and international confidence in the independence, integrity and meritocracy of the judiciary, including:

• Failure to honor his public undertaking when he first became Chief Justice more than four years ago to recast the Judges’ Code of Ethics 1994 to restore public confidence in judicial independence, impartiality and integrity.
• Publicly tarnishing the image of the judiciary by failing to take action and substantiate grave charges which he made against judges for accepting bribes.
• Failure to take action against judges, including from the Federal Court, who had obstructed the course of justice in not writing up judgments;
• The seven-month constitutional deadlock over the appointment of a suitable Chief Judge of Malaya after the retirement of Tan Sri Siti Normah Yaakob on January 5, 2007.
• The Lingam Videotape scandal implicating him in an expose on the perversion of the course of justice involving the fixing of judicial appointments and the fixing of court decisions and judgments.

With the production of proof that Ahmad Fairuz had lied when he denied that he had advocated the abolition of the Common Law in August and that he had misled Parliament last month with the denial, using Nazri as his tool, Ahmad Fairuz is not fit to continue as the highest judicial officer of the land and should tender his resignation forthwith, without exposing the judiciary to further crisis of confidence.

Under the circumstances, any notion of an extension for Ahmad Fairuz’ tenure as Chief Justice from Nov. 1 for whatever period would be completely unthinkable.

(Media Conference Statement at the DAP PJ Hqrs on Saturday, 20th October 2007)