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FEW Sabahans would dispute that corruption should attract accountability. Equally, few Sabahans would dispute that courts must apply the law impartially, regardless of public sentiment, political considerations or the popularity of the outcome.

Yet what happens when these two principles appear, at least from the perspective of the public, to lead in different directions?

That question lies at the heart of the discussion that has re-emerged following the recent High Court decision quashing the dismissal of former senior Sabah civil servant Ir. Teo Chee Kong. 

Nearly a decade after the Sabah Water Department scandal first shocked Sabah and attracted national attention, the matter continues to provoke discussion, debate and, in some quarters, profound unease.

The High Court reportedly found that the disciplinary proceedings leading to Teo's dismissal were unlawful and that mandatory legal requirements had not been complied with. As a consequence, the Court ordered that he be treated as having remained in public service until his compulsory retirement and be entitled to the pension, gratuity and retirement benefits arising therefrom.

The judgment has understandably generated differing reactions. Some view it as a reaffirmation of the rule of law and a reminder that public authorities must comply strictly with legal requirements when exercising disciplinary powers. Others struggle to reconcile the outcome with their understanding of accountability in a scandal that has become synonymous with corruption on an unprecedented scale.

These differing reactions reveal a deeper issue that extends beyond the circumstances of any particular individual. They raise important questions concerning public confidence in the administration of justice, transparency in the exercise of public power and, ultimately, the public's right to understand how vastly different legal outcomes can emerge from the same saga.

A Scandal That Produced Vastly Different Outcomes

Few scandals in Sabah's history have generated such extraordinary and varied legal outcomes.

One former senior public official has been convicted and sentenced to a lengthy term of imprisonment. Another reportedly admitted receiving RM31 million in bribes, became a prosecution witness, paid a substantial compound and was discharged. 

More recently, that same former senior civil servant successfully challenged his dismissal and secured recognition that he remained in public service until retirement, thereby preserving his entitlement to retirement benefits.

If these outcomes were presented to an ordinary citizen without context, it would be entirely understandable if he assumed they arose from different scandals involving different circumstances.

Yet they did not.

They emerged from the same scandal.

To many members of the public, these outcomes appear difficult to reconcile not because they reject the rule of law, but because they instinctively associate accountability with consistency. 

When individuals connected to the same scandal emerge with outcomes ranging from lengthy imprisonment to restoration of retirement benefits, the public naturally seeks an explanation that goes beyond the bare assertion that each outcome was legally justified.

Whether those outcomes are ultimately justified is not the subject of this article. The point is that their coexistence has created a perception gap that cannot simply be dismissed as public misunderstanding.

It is therefore unsurprising that many Sabahans continue to ask how such dramatically different outcomes came to pass.

This question should not be dismissed as evidence of public misunderstanding. On the contrary, it reflects a legitimate desire to understand how the legal system operates in cases of immense public importance.

The Distinction Between Different Legal Processes

Part of the explanation lies in the fact that the law does not address every issue through a single process.

Criminal proceedings are concerned with determining whether an offence has been proven beyond reasonable doubt. 

Disciplinary proceedings are concerned with whether a public servant should continue to hold office and whether the applicable disciplinary framework has been properly applied. 

Judicial review proceedings, in turn, are concerned with whether public authorities have acted lawfully and complied with the legal limits governing the exercise of their powers. These are distinct legal processes serving distinct purposes.

A person may therefore fail in one forum and succeed in another because each process addresses a different legal question. An acquittal in criminal proceedings does not necessarily prevent disciplinary action. 

Equally, disciplinary action may be set aside if the authority exercising disciplinary powers has acted unlawfully or failed to comply with mandatory procedural requirements.

The recent High Court judgment appears to have turned upon precisely these considerations. If the disciplinary process was legally defective, the Court was obliged to intervene regardless of whether the outcome might be unpopular.

That is the essence of the rule of law.

Courts do not exist to deliver outcomes that are politically expedient or publicly popular. Their constitutional duty is to determine whether public power has been exercised lawfully and to provide remedies where legal limits have been exceeded.

Why Public Unease Persists

Yet the discomfort felt by many members of the public does not arise because they fail to understand that different legal proceedings serve different purposes.

Most people readily accept that criminal prosecutions, disciplinary proceedings and judicial review applications involve different legal questions and different legal standards.

Rather, the unease arises because they are attempting to reconcile two ideas that appear, at least at first glance, to be in tension. On the one hand, the legal system has produced outcomes that may be entirely lawful.

On the other hand, many citizens struggle to see how those outcomes sit comfortably with their own understanding of accountability for conduct associated with one of the largest corruption scandals in Sabah's history.

The difficulty is not that citizens are unable to understand legal concepts. Most people accept that courts must apply the law and that different legal proceedings serve different purposes. The difficulty arises because many people instinctively measure justice not merely by legality, but also by accountability. 

When outcomes associated with the same scandal range from imprisonment, to discharge, to restoration of retirement benefits, the public naturally seeks to understand how those outcomes fit together within a coherent framework of justice. Unless that understanding is achieved, legality and public perception may continue to move in different directions.

The public has witnessed dramatic raids, highly publicised seizures of cash and valuables, years of investigations, criminal prosecutions, appeals, convictions, discontinuances, compounds, disciplinary proceedings and judicial review challenges. Having observed these developments unfold over many years, citizens naturally seek to understand the overall picture.

When viewed individually, each development may have a legal explanation.

When viewed collectively, many members of the public are left with a lingering question - how did a scandal of such magnitude ultimately produce outcomes that appear so fundamentally different for those involved?

It is within this gap between legal justification and public perception that confidence is either strengthened or lost.

Indeed, it is often within this gap that public trust in institutions is tested most severely. Citizens are generally willing to accept outcomes they dislike if they understand how and why those outcomes were reached. What is far more difficult to accept are outcomes that appear inexplicable. In matters involving public confidence, understanding is often as important as the decision itself.

The Importance of Transparency and Public Explanation

The issue, therefore, is not whether the courts have spoken. The courts have spoken and their judgments must be respected.

The more important issue is whether sufficient information has been made available to enable the public to understand how significant decisions throughout the saga were reached.

Courts explain themselves through judgments. Their reasoning is set out publicly and is available for scrutiny, criticism and debate. Members of the public may disagree with a court's conclusions, but they are nevertheless able to understand the legal reasoning that produced them.

The same principle has relevance whenever significant prosecutorial decisions are made in matters of substantial public interest.

Malaysia's Attorney General possesses broad constitutional authority to institute, conduct and discontinue criminal proceedings. Such authority is both necessary and legitimate. The effective administration of justice would be impossible without a significant degree of prosecutorial discretion.

However, prosecutorial independence and public accountability are not mutually exclusive concepts. Public confidence is often strengthened when public authorities provide sufficient explanation to enable citizens to understand why significant decisions have been made.

Where prosecutions are discontinued, compounds accepted or individuals treated as prosecution witnesses in matters of exceptional public importance, it is entirely natural for questions to arise regarding the public interest considerations that informed those decisions.

Such questions should not be regarded as attacks upon prosecutorial independence. Rather, they reflect a broader expectation that the exercise of substantial public power should, wherever possible, be accompanied by an appropriate degree of public explanation.

A Principle Previously Recognised

Indeed, this concern is not new.

In 2022, following the discharge of a former Sabah Water Department deputy director after the payment of a substantial compound, the Sabah Law Society publicly called for greater transparency and urged that reasons be provided in cases of significant public interest. 

The concern expressed was not directed at the existence of prosecutorial discretion itself. 

Rather, at the importance of public explanation where decisions of immense public significance are made. The principle advanced then remains relevant today.

Public confidence is strengthened when citizens are able to understand why decisions have been made. Conversely, where explanations are absent or incomplete, speculation inevitably fills the vacuum.

That outcome serves neither public institutions nor the administration of justice.

Legality Alone Is Not Enough

The rule of law unquestionably requires that courts apply the law impartially and that public authorities act within the limits imposed upon them by law.

However, in matters involving public trust, legality alone is often insufficient to maintain confidence.

Citizens must also be able to understand how important decisions affecting the public interest have been reached.

This is particularly true in corruption cases. Corruption does not merely involve financial loss. It strikes directly at confidence in public institutions, governance and the administration of justice itself. Consequently, decisions arising from major corruption cases inevitably carry significance that extends far beyond the individuals directly affected.

Transparency should therefore not be viewed as a threat to public institutions. Properly understood, transparency is one of the principal means by which public institutions preserve legitimacy and maintain public trust.

A legal system may be capable of explaining every individual decision when each is examined separately. Yet public confidence is shaped not only by individual decisions but by the overall picture that emerges from them. Where that picture appears fragmented, contradictory or difficult to understand, confidence may suffer notwithstanding the legal correctness of each individual outcome.

For that reason, explanation is not a mere public relations exercise. It is an essential component of institutional legitimacy.

The Need to Explain

Ultimately, the issue is not whether the courts have spoken. They have. Nor is the issue whether public authorities possessed the legal power to make the decisions that they made. They undoubtedly did.

The issue is whether the public has been given sufficient information to understand how those powers were exercised and why such markedly different outcomes emerged from the same saga.

The rule of law requires judges to give reasons for their decisions because justice must not only be done but must be seen to be done.

In matters of immense public importance, the same principle should guide all public institutions entrusted with significant powers.

The lessons arising from the Sabah Water Department saga are not confined to any individual case. Public authorities exercising disciplinary powers must ensure strict compliance with legal requirements. 

Prosecutorial decisions in matters of significant public interest should, where possible, be accompanied by sufficient explanation to maintain public confidence. 

Above all, institutions must recognise that legality and public understanding are not competing objectives. Both are essential to preserving trust in the administration of justice.

The Sabah Water Department saga may ultimately be remembered for many things - allegations of corruption, criminal prosecutions, disciplinary proceedings and years of litigation. Yet its most enduring lesson may be a simpler one.

Public institutions do not maintain confidence merely because they possess legal power. They maintain confidence because they are prepared to explain how that power was exercised.

The rule of law demands legality.

Public confidence demands understanding.

A legal system can produce outcomes that are entirely lawful and yet leave the public deeply uncomfortable. When that occurs, the answer is not to abandon legality, nor is it to disregard the decisions of courts or public authorities. 

The answer is to provide greater explanation, greater transparency and a clearer account of how public power has been exercised.

For when citizens are unable to understand how justice arrived at a particular destination, confidence in a single decision may be questioned. When that uncertainty persists over time, confidence in the system itself may begin to erode.

In a healthy democracy, legality and public confidence are not competing ideals. They are complementary necessities. Neither can flourish for long without the other.

The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express. If you have something to share, write to us at: Forum@dailyexpress.com.my