The no-nonsense judge calls it a day

THERE was no pomp and ceremony when Justice Datuk Shaik Daud Ismail, 65, clocked out as Court of Appeal judge at 4.30pm on Thursday.

As he stood at the clock-in machine with his time card, the only people present to bid the honourable judge farewell were Federal Court Justice Datuk Abdul Malek Ahmad and Court of Appeal Justices Datuk Denis Ong and Datuk K.C. Vohrah.

It was fitting at least that the Bar Council threw a farewell dinner on Friday, for Shaik Daud openly describes himself as one of the few who remained friendly with the Bar during the "confrontational period" between Bench and Bar. The judge of 18 years was clearly moved when the 60-or-so judges and lawyers gave him a standing ovation after his speech.

Before his appointment to the second highest court in the land in September 1994, Shaik Daud had served about 11 years as a High Court judge and 20 years in various capacities in the Judicial and Legal Service.

Asked which of his jobs he had found most satisfying, Shaik Daud quickly replied: "My stint in the courts was the most satisfying because I feel I am giving justice to the people who appear before me."

While lawyers have only praise for Shaik Daud's judicial integrity and courage, they are not always the perfect armour against a criminal mind.

A tiny teddy bear with outstretched arms, hanging from the lamp stand on Shaik Daud's table in his chambers, tells the "bare facts" of human greed.

"My eldest son was born with a hole in the heart and he had corrective surgery at the age of 12. Since then I have had a soft spot for children with heart problems.

"Some years ago, I met a woman who was setting up an association to raise funds for children with heart problems. She had grown up with a heart defect and could not afford surgery as a child because her family could not afford it. She only had surgery after marriage.

"I joined the association and helped her find donors.

"But after a few surgeries and when we had raised a lot of money, the woman ran away with the money, even leaving behind her family.

"The bear used to hold a red heart which had the words Anakku Jantung Hatiku (My Child My Heart).

"Yes, I ripped the heart out cos she did that to all the children," he said, with pain in his eyes. "I hope the police find her some day and bring her to justice."

While Shaik Daud is known to be outspoken, he only speaks out when he feels passionately about an issue. And when he decides on a course of action he takes the consequences.

A case in point was a murder trial before him in July 1987. On July 2, all the newspapers reported Shaik Daud taking the A-G's Chambers to task when they came to court on the day of the trial saying the accused--one Ruslan Abu Bakar--would plead guilty to a reduced charge.

There was a terse response from the Attorney-General to the attack.

"Tan Sri Abu Talib (Othman) sent me a letter saying he resented my comments. He said they reduced the charge after much thought," remarked Shaik Daud.

"Yes, they have the discretion to reduce (a charge) but my point was it could have been done long before the trial. In those days, we had jury trials. They had taken time off work to be in court and I had fixed dates for the trial. A last-minute change meant the jury had wasted their time and I was stuck with no other trials to hear for one whole month.

"I wrote back reminding Tan Sri Abu Talib that when I was head of the criminal division in the Chambers, on his instructions, I had issued a circular to all DPPs that as soon as they receive the preliminary enquiry (PE) papers they would know whether it was a murder case or to reduce the charge. A murder trial is fixed not for one day, it takes 10 days, even two weeks," he added.

"Even plea bargaining could have been done earlier. Counsel would know by the end of the PE what his client's case is. Both counsel and DPPs are just as responsible.

"Now that there's no jury trial, its different but it was chaotic then with many charges being reduced at the last minute," he recalled.

Shaik Daud, who has spoken strongly against denying an accused the opportunity to present his defence or making an accused wait years to find out whether he is getting the death penalty, recently reminded the Public Prosecutor (PP) of his/her role in the justice system.

In the Court of Appeal judgment--dismissing former Inspector-General of Police Tan Sri Abdul Rahim Noor's appeal against sentence for causing hurt to Datuk Seri Anwar Ibrahim in a lock-up--reported in the latest issue of the Malayan Law Journal, Shaik Daud said:

"We are mindful that the PP has absolute discretion in prosecutions but the community expects the PP to act fairly, honestly and professionally.

"In Rahim Noor's case, especially, the public found it strange that when faced with a higher sentence (two months' jail and RM2,000 fine), the PP said it was 'grossly inadequate' but when the High Court set aside the fine, it was considered 'adequate'."

While Shaik Daud has released as many people accused of drug trafficking as he has sent to the gallows, it was as a DPP and SFC that he picked up the nickname "bloodsucker."

"In those days, there were two sentences for trafficking--life imprisonment or death--and most judges would go for a life sentence even for the big drug trafficking cases.

"I would always appeal and during my arguments, some of the counsel did not like what I said and started referring to me as a bloodsucker. In one appeal in Penang before the Federal Court, I submitted that I had been called a bloodsucker but as far as drug trafficking is concerned I would not compromise.

"Where the case deserves the death penalty, it should be given ... and I got the death penalty in that case," he added.

Asked about the changes in the judiciary since he was appointed to the High Court, Shaik Daud's brow wrinkled before he replied: "Unfortunately the changes were not for the better after Tun (Abdul) Hamid Omar (the Lord President after Tun Salleh Abas was dismissed).

"Previous LPs would like to hear what judges have to say. They would ask each judge for their view at the Conference of Judges. But that stopped in the 1990s and it became a one-way street."

Why then could not the judge of his own volition raise concerns in the conference?

"You could do so, but you would not be heard. There was very little discussion. If you speak too much, you are dubbed a rebel.

"I've even heard the drivers talking: 'Oh, Shaik Daud, dia selalu conference cakap banyak, dia tak boleh naik punya' (he always talks too much at the Conference of Judges, he won't be promoted any higher).

"Drivers are a good source of information," he laughed.

Shaik Daud hopes that current Chief Justice Tan Sri Mohamed Dzaiddin Abdullah's proposal for a College of Judges--which could be a forum for judges to ventilate their concerns behind closed doors--becomes a reality.

One of the issues that could come up for discussion in such a forum is the Judges Code of Ethics which some judges feel treats them like civil servants.

"The code was never properly discussed. It was drawn up and brought to one of our conferences for us to agree. There were some arguments and the judges made some proposals for change but the changes never took place," said Shaik Daud.

"First, I would like to see judges left alone to do their work. There should not be a feeling that someone is watching over their shoulders as far as decision-making is concerned.

"Of course, his behaviour outside is different but he should be independent in making decisions," he added.

"One thing I don't like is this punching in," said Shaik Daud.

"When it was first introduced by Tun Hamid, I wrote to him that judges do not have administrative work and should not be made to clock in but nothing happened. What he should have seen to was that all judges start hearings in open court or in chambers at sharp 9am. What's the point of clocking in at 8am and then not do anything?"

Asked whether the need to clock-in had not ensured that more judges commenced hearings at 9am, he said: "No, there were some who still sat at 10am or 11am. I don't know if any action was taken."

But aren't judges used to clocking in after so many years?

"Probably, but it is so humiliating to see a judge standing in line with a time card at 4.29pm waiting for 4.30pm to punch out.

"I sometimes don't wait. I punch out. Let my card be colourful a bit. Are you a bad judge if you clock in at 8.05am or clock out at 4.29pm? When we stay back late, nobody bothers," he added.

Married to Datin Bebee Zubaidah Merican, the couple have two daughters and two sons.

While the two sons are lawyers and one even married a lawyer, his eldest daughter is a chemical engineer and the other is in the computer field.

"My wife was quite happy two of our children followed in my footsteps. I never encouraged or discouraged them from becoming lawyers or about going in the Judicial and Legal Service.

"I did try influencing my eldest daughter to do law but she refused, so I left all the others alone," laughed Shaik Daud, who uses his computer to read the Times of London law reports every morning and other Internet-edition newspapers.

However, he admits to being too slow a typist (two-finger method) to use the computer for writing judgments.

"I have had to leave that to my secretary," said Shaik Daud who has not quite decided what he will do after he returns from a holiday.

"At the moment my options are open. There are one or two offers from the legal fraternity which I am considering," said the judge who is on Universiti Malaya's board of external examiners (1993-2002).

"Yes, I would love to do arbitration if it comes my way as it is the kind of work I have been doing all the while, but in a less-formal manner," he replied when asked about going into arbitration work.

Going by the accolades that have been heaped on him, those appearing before Shaik Daud for arbitration are sure they will get a fair "hearing."

MILESTONES

Born in Penang on Jan 26, 1936, Shaik Daud was educated at Penang Free School and went on to graduate from the Lincoln's Inn in London in 1962.

Starting with the position of magistrate in Kuala Lumpur in 1963, he continued in the same capacity in Alor Star and Taiping between 1964 and 1966.

In 1969, Shaik Daud was appointed Sessions Court president in Sungei Petani, and carried on in that position in Penang and Alor Star before moving to the Anti-Corruption Agency in 1973 as Senior Federal Counsel (SFC).

After a month's stint in 1976 as SFC at the Inland Revenue Board, he went on to become state legal adviser in Perak until May 1980.

He held the post of head of the criminal division in the Attorney-General's Chambers before his elevation as High Court judge in 1983.