Tan Sri James Foong seems to have a knack for coming out with a book on the judiciary just as new scandals or controversies are afoot.
One pictures him sitting among the documents and photos he has collected, sipping his favourite beverage, and thinking “All is quiet on the judicial front. It’s safe to come out with a new edition….” He stops mid-thought thinking he hears thunder but actually it’s heaven laughing at him.
In 1988, Tun Salleh Abas was removed as Lord President. His colleagues, Supreme Court judges Tan Sri Wan Suleiman Pawanteh and Datuk George Seah, were also sacked.
Public confidence in the judiciary plummeted after that because the people had a strong perception of executive interference in the judicial arm of the Government.
Foong was a lawyer at the time. He stepped foot into the hallowed halls of the judiciary when he was appointed a Judicial Commissioner in 1990.
Six years after the assault on the judiciary, and four years after he first sat on the Bench as a Judicial Commissioner in 1990, Foong came out with the first edition of his book, The Judiciary – A Record.
Along the way, he was elevated to a tenured High Court judge. A history buff, he was compelled to write a second edition eight years later recording all the things that had happened.
The most telling parts of the book are Foong’s prefaces and the last chapters, especially in the second and third editions in 2002 and 2017, respectively.
In 2002, he wrote: “Unexpectedly, soon after the publication of the first edition of this book, the Malaysian judiciary was severely hit by scandals that had a negative impact on the image and integrity of this august institution – the poison pen letter, the resignation of a High Court judge, allegations of impropriety plagued the judiciary.
“It was not only shameful that judges normally held in high esteem came under intense public scrutiny but such humiliation, which I am certain, which any judiciary in the world will try to avoid and disassociate continued until the year 2000,” he added.
Recording the terrible events that transpired, Foong ended his second edition with a chapter entitled “Hopeful Beginning”.
Fifteen years later, at the launch of the third edition in 2017, Foong – now a retired Federal Court judge – had cause to pause and reflect.
“Regrettably, ladies and gentlemen, I was too bullish and optimistic, for it was brief and short.”
He described what transpired within the judiciary after the second edition as “even more severe and outrageous”.
“It was a turbulent period, with twists and turns at every corner.
“Matters plunged to such a low ebb that a Royal Commission of Inquiry was constituted to investigate what is now known infamously as the Lingam Tape.”
One good thing came out of that: As a measure to prevent the recurrence of the unwarranted events revealed at the inquiry, a Judicial Appointments Commission for the appointment of superior court judges was set up, Foong noted.
But we don’t appear to have learnt our lesson.
“It pains me, ladies and gentlemen, to record all these past events in the current edition of this book in Chapter 13, which I’ve titled ‘Madness Continues’.
“They affect the very foundation of the status of the Malaysian judiciary.”
During that period and soon after, he received many requests to record what transpired.
“But fearing that the end of this insanity has not come I repeatedly put off this project until now,” Foong said.
“Having closely observed the slow and steady recovery undertaken in the aftermath of those stormy times, coupled with my confidence in those at the helm of the judiciary now, I decided once again to put fingers to the keyboard for this third edition.
“Now that this task is done I hope that in my life time I shall not have to write the fourth edition as the result of some serious changes of events in the judiciary,” he told the audience at the launch of the third edition.
They laughed loudly.
Foong is not the harbinger of bad tidings. He likes to believe the best in people. But a new controversy was already brewing.
Just weeks before the launch, on July 7, the Prime Minister’s Office announced that Chief Justice (CJ) Tun Raus Sharif and President of the Court of Appeal (PCA) Tan Sri Zulkefli Makinuddin, who were already on a six-month extension before they were elevated to the top two positions, would be appointed as “additional” judges under Article 122(1A) of the Federal Constitution when their extensions expired and would continue to serve in their current positions for three years and two years, respectively.
This led to the Malaysian Bar convening an extraordinary general meeting on Aug 3 to discuss the constitutionality of the appointments.
Bar president George Varughese noted after the EGM that members did not question the abilities, capabilities or suitability of the CJ or the PCA but they questioned the purpose of appointing “additional” judges because that would “lead to the inference that there is a dearth of appropriate candidates among the eminent current members of the Federal Court, who are suitable and have the necessary abilities and capabilities”.
While the peninsula Bar is pursuing legal action, the Sabah Law Society and Advocates Association of Sarawak have also recorded their concerns.
Raus, who came to launch the latest edition, just smiled when I asked tongue-in-cheek whether Foong would have to write another edition very soon.
At a press conference on Aug 5, 2017, Raus defended his reappointment, saying that while the move was unprecedented everything was done according to law.
He said it was best for the courts to decide since there were two conflicting views on the matter.
And there, the matter shall hopefully be “resolved”.