TUN ABDUL HAMID MOHAMAD
Former Chief Justice of Malaysia
RESPONSE TO ALL MY CRITICS
RESPONSE TO ALL MY CRITICS
By
Tun Abdul Hamid Mohamad
On 17 June 2018, I wrote an article under the title, “Resignation of Tun Md Raus as Chief Justice.” On the following day, 18 June 2019, I received an email from whom and where I did not know. On the next day, 19 June 2019, The New Straits Times Online published it under the title “It appears even post of chief justice has been politicised”.
This is what the email says:
“Thank you for a typically judicious assessment. Your learned opinion is a significant contribution to public understanding of judicial independence. More views about this and related topics should be aired to advance our understanding of what a law and order society should be about. And why proper procedures are important.
Thank you and congratulations.”
As usual, I would ask the sender to introduce himself, so that I know who I am corresponding with. To my surprise, the sender turned out to be a Malaysian Chinese who had made Australia his home, spent his working life as an academician at an Australian university, now retired and living in Adelaide.
In a subsequent email, he wrote, “I find your point so cogent that I was prompted to write to thank you.”
Beware! Do not touch their Attorney General, Tommy Thomas and they will swarm on you, like bees. And that is not “racist”. On 25 June 2018, I wrote “Is the new AG choosing his briefs like a private lawyer?”
Two days later, on 27 June 2018, The Malaysian Insight published a news article under the title “Ex-CJ’s criticism of A-G an ‘assault’ on reform agenda, says group” with a photo of lawyers from “Lawyers for Liberty”.
Below it was a statement: “Lawyer N. Surendran says former chief justice Abdul Hamid Mohamad has 1a record of making statements that favoured Barisan Nasional’s racial polemics and politics. – The Malaysian Insight file pic, June 27, 2018.”
Look at the kind of comment made. Why associate me with Barisan Basional PLUS “racial polemics and politics”? That article has nothing to do with politics, BN or PH. It is about the new AG refusing to do some works which are the responsibility of the AG’s Chambers which, since Merdeka were done by all the AGs. I gave my reasons for saying why the new AG should also do those works. Why didn’t he give his reasons to the contrary? Is that his reason? Does he not know the word “relevance”?
On the same day, 27 June 2018, Malaysiakini published an article written by N Surendran under the title, “Unwarranted attack by ex-CJ Hamid upon new AG”. I will respond to only one point and leave it to the readers to reread my article and his article and decide for themselves.
This is what he said:
“Hamid also mounted an attack upon the appointment of Tommy Thomas by wrongly claiming that Article 145(1) of the Federal Constitution provides that the AG must be appointed from the judicial and legal service.
This is complete nonsense. Article 145(1) states that the king shall appoint a “person who is qualified to be a judge of the federal court” to be the AG. There is no requirement whatsoever that the AG must be appointed from the judicial and legal service. It is quite unbelievable that a former CJ can somehow get this wrong.”
Let us revert to my article. This is what I said:
“I am sure many people would be surprised to read the same Article in the 1957 Federation of Malaya Constitution:
“145. (1) The Yang di-Pertuan Agong shall, after consultation with the Judicial and Legal Service Commission, appoint from among the members of the Judicial and Legal Service an Attorney General, who shall be a person qualified to be judge of the Federal Court.”
I was merely showing that under the original provision of the 1957 Constitution, the AG must be appointed “from among the members of the Judicial and Legal Service.”
Does he not understand it? With so many lawyers standing closely behind him to show their support (and faces), didn’t at least one of them read his article and point out the error to him?
On the same day, 27 June 2018, G K Ganesan, who described himself as “an advocate & solicitor and an international commercial arbitrator…a constitutionalist, author and littérateur” wrote under the title, “Is the ex-Chief Justice right? Should the AG be appointed from the Judicial & Legal Services?”, in PARADOX Legal Issues Simplified:
“And he concludes his piece by firing a bullet he has been holding back. It is his pièce de résistance. He deploys it with a devastating effect : ‘I am sure many people would be surprised to read article 145 of the Federal Constitution, which states’—and then he quotes—
‘145(1) The Yang di-Pertuan Agong shall, after consultation with the Judicial and Legal Services Commission, appoint from among the members of the judicial and legal servicean Attorney General, who shall be a person qualified to be a judge of the Federal Court.’
So the writer points to two requirements before an AG can be appointed: first, the King has to consult ‘the Judicial and Legal Services Commission’ about the appointment. Next, His Majesty must appoint the AG ‘from among the members of the judicial and legal service’.
And then he concludes his analysis by this explosive statement: ‘Note that the AG must come from the judicial and legal service. There must be a reason for it. If Mahathir knew that Thomas would not do prosecution (sic), would he have submitted his name for appointment as Attorney General?’
This implies that the Prime Minister has completely misled His Majesty the King. He implies that those who had advised the King, and the Prime Minister had missed the 12,000 pound elephant in the room—that the AG must come ‘from among the members of the judicial and legal service’.
Is the former Chief Justice right in what he says?
Let us see.
On 24 June 1994 the Constitution (Amendment) Act 1994 [Act 885], amended the very Article that the ex-CJ relies on—that is to say Article 145 (1). It was amended to read as follows: –
‘145(1): The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.’
This means that the previous twin requirements of the King having to consult the Judicial and Legal Services Commission, and the need for the AG to be selected from only the Judicial and Legal Services— had been categorically removed. That was 24 years ago.
A lifetime.
It amazes me that so deplorable an oversight can be made on the reading of the Constitution. When an ex-CJ can misquote an entire clause of the Constitution, would that not mislead the man on the street? He’d be walking around thinking, ‘I think my PM does not know the law, and I don’t think his legal advisors are doing a good job. These guys have all misled the King. What is wrong with these people?’
Which makes one wonder: which Constitution was the ex-Chief Justice referring to?
At the rear of the Federal Constitution, there is a List of Amendments. Perhaps the ex-Chief Justice should go look at it. He will then chance upon Act 885.”
That is what he said. For the sake of the readers, let me reproduce that relevant sentence in my said article again:
“I am sure many people would be surprised to read the same Article in the 1957 Federation of Malaya Constitution:” Please note the words in bold.
G K Ganesan quoted that sentence thus:
‘I am sure many people would be surprised to read article 145 of the Federal Constitution, which states’.
I was referring to the original article 145 of the 1957 Federation of Malaya Constitution. Whether due to inadvertence or intentional, he had changed it to the amended provision. I knew that there was such an amendment. That was why I purposely wrote the words “of the 1957 Federation of Malaya Constitution”.
Having started on the wrong premise, he relied on the amended provision to criticize me. As a result, all his criticism of me on that point is irrelevant and falls to the ground. As I had pointed out above, I was showing that under the original provision of the 1957 Constitution, the AG must be appointed “from among the members of the Judicial and Legal Service.”
I just do not understand why so many of them could not see that point. How many readers have they misled?
On the same day, 27 June 2018, GK Ganesan’s article was published by Malaysiakini as the editor’s pick under the title “Should the AG be appointed from the Judicial & Legal Services?” First he repeated his allegation that I had referred to the unamended provision and relied on it, wrongly. I have dealt with this point above.
Then he devoted the rest and the major part of the article telling how hard he (and his colleagues) work, flying to Dubai for a few hours of briefing, then off to Munich to argue the case before the European arbitrators and how he and his colleagues were hard pressed for time in Singapore and so on.
The same academician living in Australia who sent me GK Ganesan’s article, commented, “To me the argument, besides being pedantic, is a non sequitur.”….
…. I find the letter vexatious and faulty in logic.”
I will say no more on it.
Four days later, on 1 July 2018, Malaysiakini again published under the title “Surendran’s arguments against ex-CJ crystal clear” 14 comments on Surendran’s response to my article selected from comments by its subscribers.
What do they say?
I will quote only one which must be the best to Malaysiakini as it was the longest and placed right on top. Among other things, Vijay 47 (I believe he is a lawyer), said:
“We then remember his performance on the bench, that he was an abhorrent member of the judiciary, driven by racist tendencies, guided by irrelevant ridiculous religious doctrine, whose decisions often left us shocked and outraged.
As evidence of his profound learning and no doubt to keep potential critics at bay, Abdul Hamid quotes from the Constitution, not even realising that the relevant article had long been amended. And this from a man who was once a judge and chief justice.
When we also remember that he keeps openly intimate company with racist organisations and indulges in blatant political positions, we can only conclude the quality of judges foisted upon us.”
I refer to the penultimate paragraph in which he said, “Abdul Hamid quotes from the Constitution, not even realising that the relevant article had long been amended.” And he added “And this from a man who was once a judge and chief justice.”
This is the same point that had been raised by N Surendran and G K Ganesan and dealt with earlier. This is like the story of the schoolboy who copied a wrong answer from his classmate and other classmates copied from him. In the end, all of them got their answers wrong. However, here they are lawyers. I feel sorry for their clients.
As regards the other 13 comments, I will only pick the expressions they used against me. (There are no legal arguments to counter mine.) Here they are:
“narrow minded”,
“…this man was not appointed through meritocracy. He was more a political appointee. He had meted out very unjust decisions in favour of BN.”
“…the ex-CJ was appointed not based on merit but on loyalty to BN. Hence, he cannot be expected to be knowledgeable and erudite.”
“How on earth did Hamid become the CJ?”
“Amazing, an ex-CJ came out with those SPM-level arguments….”
“He’s just jealous, period”
Even though I do not intend to argue with them, I only want to clarify one point, that is, regarding the allegation that I was appointed CJ because of my loyalty to BN and that I “had meted out very unjust decisions in favour of BN.”
I hope readers will remember Dato’ Seri Anwar Ibrahim’s first sodomy case. Who wrote the majority judgment of the Federal Court which acquitted him and earned the wrath of UMNO, including Tun Dr. Mahathir even though he had retired? Even though I was the most senior Federal Court judge then and the posts of President of the Court of Appeal and Chief Judge (Malaya), were vacant, I was denied, even to act, let alone be promoted to one of the posts. It was only after some Rulers stood firm and refused a junior judge to be appointed, bypassing me, that the BN government agreed to appoint me President of the Court Appeal and, soon after, as Chief Justice.
At that time, the Bar Council was full of praise for me and even dug out cases that the junior judge had not written his judgments, in order to discredit him. And, when I delivered the judgment in Meor Atiqulrahman Ishak & Ors v. Fatimah Sihi & Ors (2006) 4 CLJ 1 (the “turban case”), again the Bar Council was full of praise for me. Chinese and Indian lawyers, whom I did not know, wrote to me congratulating me for my “well written judgments”. Even then, it was clear that when I delivered a judgment which they favoured, it was a good judgment, otherwise, it was a bad judgment.
I told this story in more detail in my books: I Will Never Beg and Saya Tidak Akan Melutut.
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