Lawyers want Suhakam to review Hamid Sultan's suspension

 

A group of lawyers has petitioned for the Human Rights Commission of Malaysia (Suhakam) to review the validity of the suspension of former Court of Appeal judge Hamid Sultan Abu Backer.

The 15 lawyers are seeking for the human rights body to re-examine the constitutionality of the suspension of Hamid Sultan, who previously raised allegations of misconduct in the judiciary.

On Feb 4, the Judges Ethics Committee (JEC) suspended the Court of Appeal judge, beginning that day until his date of retirement on Aug 27.

According to a copy of the petition sent to Suhakam on Aug 26 and sighted by Malaysiakini, the lawyers urged Suhakam to look into the issue of the legitimacy of the suspension order by the JEC.

They claimed that this is due to the JEC not allowing a suspension of the Feb 4 enquiry, pending Hamid Sultan’s related court challenge.

They contended that the legality of the suspension is also in question due to the JEC directing the inquiry against Hamid Sultan to be conducted on camera (not open to the public like open-court proceedings).

They contended that it is because the Judges’ Code of Ethics 2009 itself does not contain any provision for an ouster clause (provision stating that the JEC’s decision could not be challenged in court) or for on-camera proceedings for the enquiry.

The lawyers claimed that Article 125(3B) of the Federal Constitution states that the code is intended to be the only legal code to govern any enquiry against a judge.

They said this puts into question the validity of Section 8 of the Judges’ Ethics Committee Act 2010, which held that such enquiry proceedings be held in camera, and Section 15(3) of the same act, which prescribes an ouster clause.

“For all reasons stated above, the legitimacy of the suspension order issued by the committee is hinged on this question of constitutionality.

“Hamid Sultan was not afforded the protection, the right of tenure, and the human rights to access justice as provided for under the Federal Constitution.

“Equally, every stakeholder of the law and lawyers must be able to point this out as we collectively hereby do and urge your esteemed office (Suhakam) to examine this important issue vis-a-vis the Federal Constitution and the rights of a judge to procedural fairness.

“You are statutorily empowered to investigate such miscarriage of justice and we, therefore, request that you exercise such powers and make the appropriate recommendations to the government to set aside the suspension order through a court process on the grounds of unconstitutionality and miscarriage of justice,” they said in the petition.

Malaysiakini is attempting to reach out to Suhakam over the matter.

In February 2019, Hamid Sultan had filed an affidavit, claiming abuses and fraud in the judiciary. A substantial part of the affidavit has since been expunged.

The then Pakatan Harapan government had considered setting up a royal commission of inquiry to investigate the claims, but the attorney-general at the time, Tommy Thomas, said this did not materialise due to objections by judges.

In the meantime, the JEC began disciplinary proceedings against Hamid Sultan and slapped him with a show-cause letter in August 2020.

He had been told to explain the affidavit where he, among others, alleged that certain judges had intervened in high-profile cases.

He was also told to explain a judgment in which he had remarked that the courts should ensure the Federal Constitution is not amended against public interest and fundamental liberties.

Hamid Sultan had also previously filed legal actions against the JEC. However, he had since withdrawn the related appeals, following the committee’s decision to suspend him.

Lawyer Mohamed Haniff Khatri Abdulla

Veteran lawyer Mohamed Haniff Khatri Abdulla later told Malaysiakini that Hamid Sultan's suspension until the official date of his retirement raises another issue of whether this amounted to JEC's invalid removal of the judge in contravention of Article 125 (3) of the Federal Constitution.

"Since the suspension was until the date of official retirement, it gives rise to an additional constitutional issue whether the sentence did tantamount to removal of the judge by the JEC without the formation of a tribunal as required by Article 125 (3) of the Federal Constitution," the legal practitioner said.

Article 125 (3) states: "If the prime minister, or the chief justice after consulting the PM, represents to the Yang di-Pertuan Agong that a judge of the Federal Court ought to be removed on the ground of any breach of any provision of the code of ethics prescribed under Clause (3b) or on the ground of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office, the Yang di-Pertuan Agong shall appoint a tribunal in accordance with Clause (4) and refer the representation to it; and may on the recommendation of the tribunal remove the judge from office".

Clause 4 refers to Article 125 (4) of the Federal Constitution, which states: "The tribunal appointed under Clause (3) shall consist of not less than five persons who hold or have held office as judge of the Federal Court, the Court of Appeal or a High Court, or, if it appears to the Yang di-Pertuan Agong expedient to make such appointment, persons who hold or have held equivalent office in any other part of the Commonwealth, and shall be presided over by the member first in the following order, namely, the chief justice of the Federal Court, the president and the chief judges according to their precedence among themselves, and other members according to the order of their appointment to an office qualifying them for membership (the older coming before the younger of two members with appointments of the same date)".

"My suggestion to the government is if it sets up a royal commission of inquiry (RCI) to investigate the allegations in Tommy Thomas' book (My Story: Justice in the Wilderness) as demanded by Umno, it must also include the allegation in the judge's (Hamid Sultan's) affidavit dated Feb 14, 2019, and also should include this issue as a term of reference for the determination of the RCI," Haniff said.

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