Justice is denied?

Quotes:

"There are features in these cases which are disturbing enough to show, (at this point, he referred to the transcript) which states, "Yeah, Eusoff Chin in power, I can straight get Pom, Pom, Pom, Pom." - Bar's Robert Lazar.

"So, now we are going to the …Pom, Pom, Pom, Pom." - Commission member Datuk Mahadev Shankar.

"The focus here was more on whether Lingam should be allowed to be questioned on the New Zealand holiday. There has been a miscommunication; I did not think you would be going further than that." - Commission chairman Tan Sri Haidar Mohamed Noor.

The Sun (Jan 24, 2008): The Royal Commission of Inquiry into the controversial video clip today barred the Malaysian Bar from questioning lawyer Datuk V.K. Lingam on alleged fixing of judgments in several cases handled by the lawyer over which former Chief Justice Tun Mohamed Eusoff Chin had presided.

Commission chairman Tan Sri Haidar Mohamed Noor, who made this ruling, said the questions posed to Lingam cannot go beyond issues related to his trip to New Zealand in 1994, which the Bar was trying to prove was arranged together with Mohamed Eusoff to establish their "closeness".

Haidar said: "We will not allow the line of questioning which falls outside the Commission’s terms of reference, in particular on the identity of the person speaking on the phone in the video clip allegedly discussing the appointment of judges, to be continued."

Malaysian Bar’s representative Robert Lazar, who handled the questioning, immediately sought clarification.

Lazar: Is the Commission saying the fixing of cases and their outcome is outside the terms of reference?

Haidar: Yes, its outside.

Lazar: Does this also mean our earlier submission on the alleged fixing of cases is disallowed?

Haidar: Yes, it is disallowed. We hope with the decision, it will now enlighten the counsels the direction that they should take.

Lazar then sought an adjournment to obtain further instructions on this matter.

The Bar representative found himself in quicksand when, after earlier questioning Lingam on his New Zealand trip, he started highlighting several cases, including the M.G.G. Pillai vs Tan Sri Vincent Tan and Insas Bhd vs Megapolitan Nominees Sdn Bhd in which Ayer Molek Rubber Co Bhd was the first defendant.

These cases were handled by Lingam, and the judgments were in his clients' favour.

Haidar stopped Lazar from going further.

Haidar: You have gone beyond the New Zealand trip. What is your objective in pursuing this line of questioning?

Lazar: Our objective is to show the witness (Lingam) appeared before Mohamed Eusoff after the holiday in New Zealand.

Commission member Tan Sri Steve Shim Lip Kiong asked if Lazar was trying to establish if Lingam should have discharged himself due to his closeness with Mohamed Eusoff and if so, the proposition had been objected to by Lingam’s lawyer R.Thayalan.

He suggested Lazar discontinue with the questioning on the matter until the Commission decided on it.

Another Commission member Datuk Mahadev Shankar said Lazar’s line of questioning has got nothing to do with the issue of appointment of judges, as what transpired in the video clip.

Lazar: There are features in these cases which are disturbing enough to show, (at this point, he referred to the transcript) which states, "Yeah, Eusoff Chin in power, I can straight get Pom, Pom, Pom, Pom."

Mahadev Shankar: So, now we are going to the …Pom, Pom, Pom, Pom.

Shim: We have not made a decision on that, we have to look at the submissions made by Thayalan and the others.

Haidar: The focus here was more on whether Lingam should be allowed to be questioned on the New Zealand holiday. There has been a miscommunication; I did not think you would be going further than that.

The Commission took a brief break before making its decision that effectively prevents Lazar from continuing his line of questioning.

Lingam denies NZ trip jointly arranged

KUALA LUMPUR (Jan 24, 2008): Lawyer Datuk V.K. Lingam today denied that his trip to New Zealand in 1994 was arranged together with former Chief Justice Tun Mohamed Eusoff Chin but could not explain why reservations of the flight tickets were faxed to the joint attention of two persons, Rohani and Jayanthi.

Malaysian Bar representative Robert Lazar, who was questioning Lingam on the trip to try and show his closeness with Mohamed Eusoff, said the then top judge had earlier testified that Rohani was his secretary.

He then asked Lingam whether he knew anyone by the name of Jayanthi, and the latter replied that he had a secretary by that name.

Lingam said he was not aware of the reservation and added: "There are many Indian women with the name of Jayanthi."

Lazar: Can I suggest to you, Rohani and Jayanthi’s name were there because you and Mohamed Eusoff planned the New Zealand trip together?

Lingam: That is not true.

Lazar: So you are telling this Commission that it is a coincidence that you and Mohamed Eusoff used the same travel agent?

Lingam: There is nothing unusual about it. It was not pre-planned, it was a coincidence.

Lazar: Are you saying that your meeting with Mohamed Eusoff at Changi airport (Singapore) was a chance encounter?

Lingam: That is correct.

Lazar: Can I suggest to you, one more reason why it is not a coincidence? The first flight, from Kuala Lumpur to Singapore. Mohamed Eusoff and his family left on a Malaysia Airlines flight while you and your family left on a Singapore Airlines flight, because you did not want anyone to spot you and Mohamed Eusoff boarding the same flight.

Lingam: That is not true.

In a reply to another question on the trip, Lingam said he booked the flight to New Zealand through a travel agency named Udara Travel and Tours Sdn Bhd.

But when Lazar showed him a copy of a Dec 21, 1994, Bank of Nova Scotia cheque for RM24,912, issued by Lingam to Holiday Travel and Tours Sdn Bhd, the lawyer admitted he had an account with the bank.

This exchange took place on the eighth day of the inquiry into a video clip allegedly featuring a senior lawyer brokering the appointment of judges.

Earlier, to a question from Lazar, Lingam said he and Mohamed Eusoff’s family were not on the same flight to Auckland, New Zealand, when they boarded the plane in Kuala Lumpur.

But Lingam agreed he and Mohamed Eusoff’s family were on board the same business class flight to Auckland from Singapore.

Lazar: In Auckland, did you and your family and Mohamed Eusoff’s family stay in the same hotel?

Lingam: That is not true. We never stayed in the same hotel.

Lazar: You are positive Mohamed Eusoff’s family was not in the same hotel as your family?

Lingam: To the best of my recollection, not in the same hotel. It had been 13 years now, I cannot remember.

Lazar: Did you meet up with Mohamed Eusoff and the members of his family while you were in Auckland?

Lingam: To the best of my recollection, I first met him and his family at a zoo in Auckland and later went to the bird park.

Lazar: Was that the only occasion you and your family were with Mohamed Eusoff or were there other occasions?

Lingam: We did not tag along with him.

Lazar: It will not be right to say that you spent most of the time with Mohamed Eusoff and his family?

Lingam: That is correct.

Lazar continued questioning Lingam on the itinerary of his visit to Auckland, Christchurch and Queestown and whether Mohamed Eusoff also went to the same locations.

Lingam agreed Mohamed Eusoff also travelled to the same spots, but he had a separate itinerary of places to visit during the trip.

He admitted that besides his family and Mohamed Eusoff’s family, his bodyguard Tan Chong Paw, also accompanied them to New Zealand.

He said the trip was pre-planned by him and Mohamed Eusoff separately and it was a coincidence they met in the Changi airport in Singapore before traveling together to New Zealand.

Lazar asked Lingam about the ride in a van together with Mohamed Eusoff to another tourist attraction site in Queenstown from Christchurch.

Lazar: To say that you tagged along with Mohamed Eusoff is not true?

Lingam: The ride in the van is coincidental. He decided to tag along with me.

Earlier, when the day started, Haidar had asked lawyers representing Mohamed Eusoff for their stand on the questioning of Lingam on the New Zealand holiday.

Lawyer Zamani Ibrahim said they would align themselves with Lingam’s lawyer, R.Thayalan’s stand and also that of lawyer Kamarul Hisham Kamaruddin who represents former Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim.

Both Thayalan and Kamarul Hisham had objected to the line of questioning against Lingam on the aspect of closeness of Lingam with their clients.

The Commission also said they would allow lawyer Wee Choo Keong and his co-counsel John Fan to submit on behalf of V.Thirunama Karasu, the younger brother of Lingam, who ahd offered to testify as a witness.

Lingam: I was bulshitting and bragging

KUALA LUMPUR (Jan 24, 2008): Lawyer Datuk V.K Lingam told the Royal Commission today he may have been "bullshitting and bragging" when he told businessman Loh Mui Fah that he was speaking to former Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim.

"I do not recollect I said that (it was Ahmad Fairuz). Even if I did say, I was - I’m sorry for the word - bullshitting and bragging," he said, in reply to a question by Malaysian Bar Council representative Ranjit Singh.

"This was in my house, in the privacy of my room. My house is my castle. I am the king of my house. I can talk whatever rubbish I want in my house as long as I (don’t go out) and get drunk and don’t misbehave."

When Ranjit asked why he chose to speak on judicial appointments in Loh and his son’s presence, Lingam said: "I can choose whatever topic I like. I can even pretend to talk to President Bush if I like."

This drew laughter from the courtroom.

Commission chairman Tan Sri Haidar Mohd Noor also asked Lingam why he thought his social friends – Loh and his son – had gone against him.

Lingam said he could not think of a reason, adding: "If they believe the video clip was true, they wouldn’t keep it for six years. They would have gone to the police and the ACA (Anti-Corruption Agency) and say ‘Charge him! Investigate!’ (But) they kept it for six to seven years."

Commissioner Datuk Mahadev Shankar also sought Lingam’s clarification pertaining to his identity in the video when he did not dispute that he was in the photographs taken on the day.

Mahadev: When it comes to the video your evidence is that it might not have been me, it could be me, it might be somebody else?

Lingam: No, no my learned commissioner. I think you’ve not got it right. I said it looks like me, it sounds like me but I did not say it is not me. I don’t want to say it’s 100% me. The authenticity must be established by my two experts.

Mahadev: How many percent would you say (it is you) then?

Lingam: I don’t want to get into a mathematical debate with my learned commissioners. My experts (say) the local experts’ report is fundamentally flawed and defective. (If my experts) say it’s me 100%, I’ll be the first one to say it.

Ranjit also submitted 33 photographs of Lingam’s New Zealand trip with Tun Eusoff Chin to the Commission, establishing that it took place and both families went on excursions together, including a fishing trip on a lake during a visit to Queenstown.

Lingam testified he could not remember the locations where the photographs were taken as "it was over 13 years ago."

Fifteen ticket stubs were also submitted as evidence, prompting commissioners Mahadev and Tan Sri Steve Shim to ask him how he obtained the tickets and pictures. Ranjit replied lawyer Datuk Shafee Abdullah gave them to him.

Lingam also said he told the ACA he did not have records of the numbers for his mobile and house phones for 2001 and 2002, during questioning by Bar representative Robert Lazar.

Lingam said he changed his prepaid mobile number every time he lost his phone and changed his home number as "many prank calls" were made to him and the maids.

On why he volunteered Ahmad Fairuz’s name during questioning, Lingam said: "Because it is so widely reported. Malaysiakini said it must have been Tun Ahmad Fairuz. It was in the public domain since Sept 19, 2007. This is a few months down the road. I want to tell the truth and make it clear."

Related:
Former top judge grilled on overseas trip with Lingam
Prepaid card used, no trace of Lingam's phone
'It was Ahmad Fairuz'
Lingam Tape inquiry begins with controversy
Lingam Tape commission identifies 16 witnesses
'Lingam tape' inquiry in open court
Haidar heads six-man Royal Commission on Lingam Tape
ACA: No Anwar arrest yet
ACA cancels date to collect video clip
Cops want to quiz lawyers over 'Walk for Justice'

No irregularities, the allegation is either mad or drunk

No irregularities, says Tourism Minister

Excerpt:

The Star (19/1/2008): An internal probe carried out by the Tourism Ministry on its two officers who allegedly misused government funds showed no irregularities.

Its minister Datuk Seri Tengku Adnan Tengku Mansor revealed the probe showed the officers had followed procedures stipulated by the ministry.

"They (those conducting the internal investigations) have given the report and it looks like the two officers had adhered to procedure but since a report had already been made, the Anti-Corruption Agency (ACA) has to investigate. There are two or three issues that are still unclear and this will be investigated by the agency," he told reporters here on Saturday.

Related:
'Korean scandal': No irregularities, says minister (Malaysiakini)

'Korean scandal': PM tells minister to talk to ACA (Malaysiakini)
Adnan: Lingam either mad or drunk (Malaysiakini)
Lingam "lelaki mabuk"? (Ahirudin Attan)
A drunkard always speaks the truth (Dr.Chris Anthony)
Abomination (KTemo)
Visit Malaysia Year scandal exposed (CJCM)
Korean scandal only a drop in the ocean (Malaysiakini)

When ngorok rules...

Loh said that he had written to Prime Minister Abdullah Ahmad Badawi on Nov 5, saying that he was willing to assist in the investigations into the Lingam tape should there be an assurance that “his safety would be guaranteed”. [see letter below]

“But nothing happened. I have had no reply from the prime minister,” he lamented. (Malaysiakini, January 12, 2008)

We could have save a lot of rakyat's money and time if the Prime Minister does not turn a blind eye to Loh Mui Fah's letter and reacted accordingly. No Haidar committe, no Haidar commission (omission?), no money wasted.

What would you say the Prime Minister is trying to do? Hopefully, nobody says "a cover up exercise" or "this is what happened when ngorok rules..."

Datuk Seri Najib Tun Razak, didn't you tell us to change weak leaders?!!

Related:
Lingam tape: Businessman goes public (Malaysiakini)
Q&A: My son took the Lingam tape (Malaysiakini)
Lingam Tape: Seeking PM's protection... no reply (Jeff Ooi)
News on Loh Mui Fah
Bloggers on Loh Mui Fah
Lingam clip is true, says man (NST)

Excerpt:

NST (13/1/2008): A businessman said yesterday that the Lingam video clip was taken by his son.

Loh Mui Fah claimed the incident took place at Datuk V.K. Lingam's house in Kelana Jaya in late December 2001.

He had gone to Lingam's house with his son to obtain legal advice on family and business matters.

Loh, 57, claimed that whatever was said in the video clip was true. However, he claimed neither he nor his son knew how the video clip was made public.

The video clip allegedly shows lawyer Lingam brokering judicial appointments with a senior judge.

Loh said he would be at the Jalan Duta Court complex tomorrow to testify before the Royal Commission of Inquiry, which was established to investigate the authenticity of the Lingam video clip and the truth of the allegations. The commission begins its sitting tomorrow.

When contacted, Lingam declined to comment on Loh's claims. However, he said that he would give evidence before the commission.

In an interview at his lawyer Americk Singh Sidhu's house last night, Loh said: "I was not aware then that my son was recording Lingam's telephone conversation. My son, who is now overseas, confirmed that he was responsible."

Saying his son was an avid photographer, Loh claimed that his son had earlier taken photographs of the lawyer's house and a discussion between Lingam and his sister, also a lawyer, on a legal matter when they were in the house.

However, he said, it was a mystery how the clip was made public. He said: " My son claimed that it was stored in a computer and wondered how it went to a third party."

He said he only knew of the existence of the video clip after it was talked about.

Loh said he and his son were prepared to testify before the Royal Commission of Inquiry.

"I will be at the Jalan Duta Court complex to testify before the panel. My son is also prepared to do the same."

Loh, who has business interests here and overseas, said he had no interest in the telephone conversation Lingam had with the unidentified person.

"The conversation started after he (Lingam) received a call. Whatever that was spoken and now widely publicised is true," he claimed.

Loh said it was also true that he posed several questions to Lingam after the conversation ended, which included who he was talking to.

"He told me it was the Chief Judge of Malaya," he added.

Loh claimed that since then, unknown individuals had been trailing him and his office had been broken into on several occasions.

Americk Singh said the evidence of his client and the client's son was important as it was covered by the terms and reference of the commission.

"We feel they can go straight to the commission and assist in the inquiry. They need not give any statement to the ACA first."

Anwar reveals more footage of Lingam tape

Malaysiakini (8/11/2007): In the 10-second clip, Lingam finishes his telephone conversation and then turns to speak to another person in the room - believed to be in Lingam’s house - who is heard asking who was on the other end of the line.

Unidentified man: Who is that?

Lingam: Chief judge of Malaya.

Unidentified man: Who is that?

Lingam: Dato Ahmad Fairuz (Full report)

Related:

Video links CJ to 'judicial fixing' scandal

It’s a tricky proposition

The Star (1/11/2007): separation of powers is a strange concept indeed. On the face of it, it appears to be a simple enough thing. The three branches of government – the executive (Cabinet), the legislature (Parliament) and the judiciary – have to be separate and independent of one another.
This is to ensure that each body acts as a check and balance against the other, ultimately protecting the citizens from any form of despotic government.

But things are never so clear-cut. Because we use the Westminster model of parliament, our executive is selected from the majority party in the legislature.

Therefore, the Cabinet members sit in two branches of the Government. And party politics being what it is, the majority party in the legislature in turn will be loyal to the Cabinet.

In some more mature democracies, you may see rebellion within the ranks, where MPs of the ruling party vote against the proposals of the Cabinet, but that does not happen here.

The legislature thus cannot be said to be a very effective check and balance to the executive. Especially since that second branch of the legislature, the Senate, is appointed directly by the executive.

This makes it all the more important in this country to have a strong and independent judiciary – one that can make sure the Cabinet does not behave in a way that exceeds its powers and that the legislature does not make laws that are unlawful according to the Constitution.

Again, we see that things are not so cut-and-dried.

The judiciary, at least in this country, is selected to all intents and purposes by the Prime Minister, who is the head of the executive.

There is nothing particularly unique here, this happens in many other countries, too, where the lines between the executive and the judiciary are blurred.

In the US, for example, the President chooses the judges of the Supreme Court. Like I said, separation of powers is a strange concept indeed.

However, there are key differences between places like the US and Malaysia. For one thing, governments change over there.

So, even if a conservative President chooses a conservative judge, he will be sitting

on a Bench that is populated also with

liberal judges chosen by an earlier liberal President.

Furthermore, once the man (until Hilary Clinton actually wins, it’s still “man”) is out of the Oval Office, then any sort of personal allegiance (if any) will also disappear.

And here is the crunch – judges in the US have a job for life. They sit in their robes on their judge’s chair until the law clerks have to pry their cold, dead bodies from it.

And what is more, there has been no firing of judges; so that means they can do their jobs without any fear or favour.

Back home, this is obviously not the case. The removal of Salleh Abbas in 1988 showed us that judges could be dismissed in a method that is legally unsound and procedurally dubious.

Up till that point, although our judiciary had the tendency of being rather conservative and timid, it had been independent. And perhaps more importantly, it was respected due to that independence.

Since 1988, things have changed, leading to what I would say is a crisis in the judiciary.

Now, we can bury our heads in the sands of political convenience and self-interest and just say, “Crisis? What crisis?” but that would be ignoring the reality.

Realities like the High Court judge who was so fed-up with the state of the judiciary and the behaviour of some of its members (including the top judge of the time) that he had to resort to writing a surat layang in the mid-90s to vent his anger.

The fact that no disciplinary or defamation action has been taken against this judge speaks volumes.

Or, another High Court judge who said in his final judgement that when deciding over the validity of a by-election in 2001, he was actually instructed to decide in a particular way.

And now, of course, the infamous video clip showing, allegedly, a lawyer brokering the post of the Chief Justice like a contractor brokering a tender.

This is not to suggest that the judiciary is a lost cause.

There are still judges who make decisions which surprise and astound, not so much by their brilliance, because the principles espoused in the judgements are fundamental and basic, but because one has all but given up hope that such simple concepts of justice could be seen and heard in our courts.

Justice Hishamudin Mohamad Yunus is one such man, consistently upholding Constitutional principles over draconian laws. One hopes that he will remember that a legacy such as his is far more important than the trappings of high office.

But he is one man. And even though there are others like him, the institution itself is under threat.

All the sad events mentioned earlier suggest this and by themselves deserve serious and independent investigation. Put together, they demand it.

The separation of powers is a fragile thing. In reality there are many grey areas, especially in the appointment process, but if the integrity of the men and women who make up the three bodies of the Government is intact, then those grey areas fade to nothingness because the practice of separation of powers becomes as pure as possible.

In a system where a politician can say the Chief Judge is answerable to him, where the Federal Court can actually say the separation of powers and democracy are not the aspirations of the Constitution, the separation of powers is clearly as ephemeral as a dream, and it is high time something is done to make sure the judiciary is once again clean and independent.

If we don’t demand this, then one day the protection that the Bench is supposed to provide will disappear entirely. We will be living in a country that is not a democracy, and we will have no one to blame but ourselves.

Video part II: It was Fairuz, says Kit Siang

Malaysiakini (6/11/2007): “In the six-minute (video), Lingam had finished the telephone conversation and it recorded a conversation between Lingam and another person who asked who was Lingam speaking to on the phone, and Lingam distinctly answered that he was talking to Ahmad Fairuz, at the time chief judge of Malaya.” (Full report)

Spot Light: 'Video clip not doing judiciary any good'

NST (4/11/2007)

Q: Is there a crisis in the judiciary?

A: There is. It's a crisis of confidence. It's been present for a while.

Q: What was it about the "Lingam" video clip that brought you to this climax?

A: It raised serious issues about the appointments' process, and the manner in which people who should not be involved in anything to do with the judiciary were heavily involved.

For us, that was so stark. We felt we had to say something about it.
Q: Why walk? Why not just hand in the memoranda?

A: We have sent in memoranda to the judiciary and the government before, about the judicial appointments commission; we have raised it with the minister, we've even held a debate, between BN Member of Parliament Datuk Zaid Ibrahim and the minister (Minister in the Prime Minister's Department, Datuk Seri Nazri Abdul Aziz).

But, they (the government through Nazri) said they were not interested, unless it came from the judiciary.

We think that's a non-starter. If you're asking the judiciary to change the system they like, it's not going to happen.

Q: Is the independent judicial appointments commission system a good system?

A: It's an excellent system. For its independence, its clarity and its transparency.

Q: The minister says if you want to change the system, you have to get the judges to change it. You don't think there are enough good men in the judiciary who would want to bring in that system?

A: We have many good men in the judiciary. If you were to do a survey, I think you would find even they, too, would want a change.

What happens in other jurisdictions is that they set up a commission to look into it. But we haven't even got there yet.

I've no doubt there are good people in the judiciary; but there has been some resistance to the appointments system.

Q: Knowing that the government doesn't support the idea, why did you appeal to the government?

A: Well, we sometimes have to re-state our position. We updated our memoranda to show how many more jurisdictions have gone that way.

It is not an interference of the judiciary (to set up an independent judicial appointments commission). Because what you are doing is strengthening the judiciary, that can never be interference. It's judicial reform.

Q: If the government were to set up an independent appointments commission, who would be the commissioners?

A: In the model we have suggested, the chief justice heads it. All the four office-holders (including the president of the Court of Appeal, Chief Judge of Malaya, and Chief Judge of Sabah and Sarawak) would be there.

You would also have members of the public, the Bar, and the Attorney-General's Chambers. All the relevant stakeholders in the administration of justice would be there.

Q: Was the walk based on the belief the video clip was authentic?

A: I think the walk was based on all the things we've been saying about the judiciary requiring rejuvenation. We've been saying for so long, and I think the video clip made things absolutely urgent.

We were very alarmed by what we saw on the video clip. We felt the video clip was not doing the judiciary any good at all, and has to be investigated.

We were not prejudging anything in relation to the video clip. But there was enough there that gave us real cause for concern.

Q: Has the Bar Council done anything to approach the lawyer in the video clip?

A: A complaint has been lodged and the due process will take its course. We cannot interfere after that. It is with the disciplinary board.

Q: Had the main player in the video clip not been that lawyer, had it been any other lawyer, would it have mattered at all?

A: Of course. The fact that there can be any interference or manipulation of the appointments system is very worrying, frightening, in fact.

Q: So, if the lawyer had been a junior lawyer, and the judge had been a magistrate, would it have been as serious? Would it have resulted in the walk?

A: Absolutely. I think it would have made no difference. The fact of whether it was a senior lawyer or not is irrelevant to me. The very senior judge may well have made a difference.

But to me, any kind of manipulation of appointments would have been very scary. Because of the ramifications, what does that do to all the cases that were heard?

Q: Lawyers don't chit-chat with judges about appointments?

A: The informal chit-chatting does go on, because there's no other way for the institution to know who are the good lawyers who should go up. So, where appointment of lawyers to the Bench is concerned, yes, that does happen.

There's no harm in that.

You can't stop people talking to each other. Here, we are talking about a process where there is tremendous influence by parties who shouldn't have an influence in the process.

Q: If the government were to agree to a royal commission tomorrow, what would you want it to do?

A: To investigate the current state of the judiciary, and its appointments and promotions process, and how it can be improved.

The issues in the video clip have to be investigated, to see whether any of those things actually took place at that time.

You would get the public coming forward, which happened in the royal police commission. Once you start that process, you would get a lot of information. When you do that, we would know exactly what has been happening in the judiciary.

Q: Why do you think no one has come forward to the panel?

A: Because the panel doesn't have powers to protect anyone; they don't even have powers to protect themselves.

Despite the assurances that have been coming out, they don't think the panel can give them the protection they need. If it had the powers of a royal commission, they do have powers to protect.

Q: Would a royal commission really be able to give protection?

A: It gives more protection, at least to the evidence that is given, so that the person cannot be sued or arrested for the evidence they give. That is the protection the royal commission can give.

It's not protection to identity, but protection to the evidence that is given.

Q: (Datuk Seri) Nazri (Abdul Aziz) said if no one comes forward to the panel by the time it concludes its work, it is "much ado over nothing".

A: It would be very wrong to take that stand.

If you are going to deal with it in such a perfunctory manner, it will be real cause for alarm. I think the problem with the panel, its lack of powers, has to be taken seriously. People are scared to come forward.

Despite all the assurances by everyone, there's no actual statutory protection for the evidence, that is what is missing. How can you conclude there is no issue?

Q: The minister said if you really wanted justice done, you would come forward.

A: The criminal justice system very often relies on whistleblowers. The law has to protect whistleblowers. We do not, at the moment, have an act that does that.

The fact the government and Nazri himself recognises we need such an act must mean that there is value to be placed on whistleblowers.

Perhaps the Attorney-General should come out and say he will give immunity, in respect of civil and criminal prosecution to this witness. Amnesty should be given to this witness. In the public interest.

If you recognise that a country needs a witness protection act, then you recognise the value of whistleblowers, you recognise they need to be protected.

Q: The minister said it's not the government's problem if no one comes forward.

A: The government has taken a step to look into it, it shows they feel there is an issue.

If no one comes forward, all it means is that the step they have taken is ineffective.

If it is ineffective, then they have to take a step that is effective, they can't just close it.

Q: If everyone keeps talking about a crisis in the judiciary, won't this scare away foreign trade?

A: All we're doing is speaking the truth. I don't think anyone should be stopped from speaking the truth.

We do it because we know we have the potential to be a First-World judiciary.

Public confidence is something very fragile; it comes from the opinion that people have.

If steps are taken to reform, the confidence will come back immediately.

Q: If the government doesn't do anything, what is the Bar going to do?

A: I think the Bar will be wanting to have an emegency general meeting. This cannot just go away without a full and thorough investigation. That is something we hope to persuade the government that has to be done.

Q: What options are open to you?

A: Our meeting with the prime minister -- that's a big option. And also by hearing from the members of the Bar at an EGM (on Nov 22), where we hope to communicate our views to the government.

Those are the options we are looking at. We are still going to use persuasion.

Q: There was a suggestion at the recent Malaysian Law Conference for lawyers to go on strike from the courts for one day. Is that feasible?

A: We have discussed it. We have to be very careful in any steps we take. We have to be responsible -- first to our clients; secondly, we have to be careful not to pre-judge any issues.

It's not something that we would easily do.

Q: The old chief justice is out. There is currently an acting-CJ, and there will be a new CJ. Have you thought of taking the minister's suggestion by going to the judiciary and asking them to reform?

A: We hope to write in and have a meaningful discussion, between the Bar and the Bench. We are hoping to see this new era, where there will be a lot of discussion.

But even before this video-clip incident, the judiciary was already beginning to engage with the Bar.

We were invited by the Chief Judge of Sabah and Sarawak (Tan Sri Richard Malanjum) to see the system in Sarawak. They are doing things to try to improve, and we want to help in that process.

So, we do know that there are judges there who will engage with us. And we hope to continue with that process, and that we start this new era where we work together, in the interest of the administration of justice.

Q: The government says it's not going to reform the judiciary unless the judges want the reform.

A: Well, let's see. It may be something everybody can be united on. Hopefully soon.

Perak ruler’s role in CJ appointment

The Sun (5/11/2007): Perak’s Sultan Azlan Shah, a former distinguished highest-ranking judge, is believed to have played a crucial role in the matter of filling the vacancy of Chief Justice of the Federal Court.

According to sources, the decision to fill the position of Chief Justice following Tun Ahmad Fairuz Sheikh Abdul Halim’s retirement was based on the outcome of discussions between Sultan Azlan Shah and Prime Minister Datuk Seri Abdullah Ahmad Badawi, with consultations with the Yang di-Pertuan Agong Tuanku Mizan Zainal Abidin.

The result of these discussions was conveyed by the ruler to the Conference of Rulers, which agreed to the recommendations before the commencement of the Conference of Rulers last Wednesday.

"The Conference of Rulers, headed by His Majesty the Yang di-Pertuan Agong had asked Sultan Azlan Shah to use his expertise and experience to discuss the appointment of the Chief Justice with the prime minister," said a palace source.

The source said as the Perak Sultan was a former Lord President, he was the most qualified to advise the rulers and consult the government on the candidate for Chief Justice.

The source said contrary to previous news reports and what had been posted on several blogs, the Conference of Rulers did not discuss the re-appointment of Ahmad Fairuz as Chief Justice at last Thursday’s conference.

"There was nothing to discuss as the rulers agreed with the choice of Datuk Abdul Hamid," said the source, adding that a letter from the government concerning Ahmad Fairuz’s extension as Chief Justice was withdrawn before the commencement of the Conference of Rulers.

Court of Appeal President Datuk Abdul Hamid Mohamad was appointed Acting Chief Justice to fill the vacancy left by Ahmad Fairuz who, at 66, had reached the mandatory retirement age for judges.

Abdul Hamid is second on the hierarchy and the Conference of Rulers had agreed with the government that Abdul Hamid, 65, would fill the post until a suitable candidate is found.

The source said due to Abdul Hamid’s age (he will be 66 in April), the rulers, on the advice of the prime minister, agreed that his post shall only be that of an acting capacity until a suitable candidate was found.

"The acting capacity is not a reflection on Abdul Hamid’s capability. If the rulers feel he is deserving, they will agree to his term being extended once he reaches retirement age," said another source.

Ahmad Fairuz had retired under a cloud of controversy when his name was mentioned in an audio-visual recording showing lawyer Datuk V.K. Lingam on the phone purportedly brokering the appointment of judges.

The source said the rulers were also concerned that the whole Ahmad Fairuz episode had given the impression that there was a conflict between the sovereign and the executive.

"This is not true as the executive respects the suggestions and advice of the rulers, while Their Highnesses are receptive to the advice and views of the government," said the source.

Sparks fly even before start of Umno assembly

The Star (5/11/2007): The Umno general assembly begins today but the sparks have started to fly with one politician hitting out at the English media for carrying opposition reports.

Information Minister Datuk Seri Zainuddin Maidin said some media were being used by the opposition to highlight their causes now that there was greater press freedom and transparency.
“Since it has been free, there are some mainstream papers which favour those who do not support the Government.

“Some are done in an indirect manner and some directly, especially in English papers,” he said when speaking to student leaders at the Overseas Umno Club leadership course here yesterday.
Citing the judiciary issue as an example, Information Minister Datuk Seri Zainuddin Maidin said the media had its own agenda.

“For example, (the Sultan of Perak) Sultan Azlan Shah’s speech talked about various issues but what was only highlighted was the teguran (warning) on the judiciary,” he said.

Zainuddin also claimed that young Malays such as Azmi Sharom and Amir Muhammad were being used by English papers to attack the Malays.

He said there was one case that raised “doubts over the media’s purpose” was the recent reporting of Port Klang assemblymen Datuk Zakaria Mat Deros’ new mansion although he had been cleared of corruption.

“The case is already over. He took orphans to his new house but what was highlighted was how big the house is,” he said.

Zainuddin also took a potshot at former deputy prime minister Datuk Seri Anwar Ibrahim and claimed that he was not being truthful about the video clip on the alleged judge-brokering.

“The video clip is creating tunjuk perasaan (protest). This party has already been rejected by the community and only has one seat in Parliament yet they are trying to cause trouble.

“During his (Anwar’s) time, there was restrictions and he had his people in the media Now that the Prime Minister is more transparent, he is using that to attack the Malays,” he added.

Watershed in Malaysia over courts' autonomy

SMH (3/11/2007): Malaysia rarely makes our news these days, a sign the country is generally stable and prosperous and, at least since the retirement of the former prime minister Mahathir Mohamad four years ago, relatively free of abuses of authority.

But this week a battle has come to a head in Kuala Lumpur that will be crucial to whether Malaysia rolls back one of Mahathir's worst assaults on good governance and constitutional safeguards during his 22 years as leader.

It will either set the country's judiciary back towards the widely respected independence that Mahathir subverted, or confirm it as a pliable extension of the ruling United Malays National Organisation (UMNO), the party that has led government since the Malaysian federation was formed in 1963.

The players are Mahathir's successor, Abdullah Ahmad Badawi, and the Conference of Rulers, the nine traditional sultans of the Malay states who take five-year turns as Malaysia's king.

Abdullah and the sultans are deadlocked over the necessary royal approval for the Prime Minister's candidates for the Supreme Court chief justice, following the retirement in some disgrace this Wednesday of Ahmad Fairuz Sheikh Abdul Halim. Malaysia's judiciary has been weak since 1988, when Mahathir sacked the chief justice (then called the Lord President), Salleh Abbas, and two other Supreme Court judges, by getting the UMNO-controlled parliament to appoint a special tribunal into their alleged misconduct.

This followed rulings in favour of Mahathir's UMNO rivals, Razaleigh Hamzah and Musa Hitam, in their procedural objections to Mahathir's narrow win in a party leadership ballot the year before.

The weakness of the judiciary became apparent in Mahathir's later persecution of his deputy prime minister and political rival Anwar Ibrahim with trumped-up sodomy and corruption charges, for which he was sentenced to six years in jail in 1999 and nine years in 2000.

The sodomy conviction was quashed and Anwar released in 2004, after Mahathir stepped down. Anwar leads the opposition Keadilan party, but is still fighting the corruption conviction and is barred from political office until April next year.

In September, Anwar released a video recording purporting to show a lengthy conversation in 2002 between Ahmad Fairuz, then the country's third-ranking judge, and a well-known lawyer, V.K. Lingam, arranging the appointment of judges favourable to the UMNO government and its cronies, such as the gambling tycoon Vincent Tan.

"Don't worry. We organise this," Lingam said to Ahmad about one judicial appointment. "If Tan Sri Vincent [Tan] and Tengku Adnan [Mansour, minister of tourism and UMNO powerbroker] want to meet you privately, they will. I will call you. We organise in a very private arrangement, in a very unusual place."

The revelation led to a protest march by 2000 lawyers, and a petition signed by 5000 leading Malaysians to the king. Another big protest is planned for November 10.

Anwar has used the recording as part of his comeback, saying the alleged conspiracy had bearing on the outcomes of several judicial cases, including his own. Yet he has now come under investigation by police for refusing to divulge the identity of the person who made the recording with a mobile phone.

Abdullah tried to get a six-month extension in office for Ahmad, whose term ended this week. He inducted UMNO's chief legal adviser, Zaki Azmi, as a Federal Court judge, apparently to position him to succeed as chief justice, despite a lack of previous judicial experience.

But the rulers have dug in their heels, by withholding their approval. A spokesman for the rulers is the widely respected Sultan of Perak, Azlan Shah, who was the lord president of the Supreme Court in the 1980s before Mahathir's intervention.

"Without a reputable judiciary - a judiciary edowed and equipped with all the attributes of real independence - there cannot be the rule of law," Azlan said in a widely noted speech at a legal conference this Monday.

Abdullah has restored a more constructive image to Malaysia, but is yet to strike decisive blows against the pervasive corruption and cronyism of the Mahathir years. He could do this by helping to restore judicial independence, and repealing the outmoded Internal Security Act, with its arbitrary detention powers dating from the 1950s communist insurgency, which only adds to the problem.

KL cops and judiciary getting a bad name

Straits Times Singapore (3/11/2007): the Malaysian government established a three-member panel last month to investigate a video clip that alleged judicial corruption, it sent out two separate messages.

First, Prime Minister Abdullah Badawi's administration acknowledged that widespread concerns over the independence of Malaysia's judiciary needed to be tackled urgently.

By setting up the independent panel, the government also tacitly admitted to a lack of public confidence in the ability of enforcement agencies, particularly the police, to carry out the simple task of determining the authenticity of the video clip.

The controversial clip, showing a senior lawyer allegedly brokering the appointment of judges, was released by the country's former deputy premier, Datuk Seri Anwar Ibrahim.

This week, two separate events underscored the seriousness of the problems afflicting the judiciary and the police.

On Monday, Perak's Sultan Azlan Shah delivered a sharp rebuke to the country's judges when he told a conference of lawyers that the judiciary was in serious need of reform.

'Sadly, I must acknowledge there has been some disquiet about our judiciary,' said Sultan Azlan Shah, who at one time served as the country's chief judge. 'I am driven nostalgically to look back to a time when our judiciary was the pride of our region and our neighbours spoke admiringly of our legal service.'

A day later, Malaysia's third most senior police officer alleged that the country's two other main enforcement agencies - the Attorney-General's Chambers and the Anti-Corruption Agency (ACA) - were undermining police efforts to arrest criminals.

Datuk Ramli Yusoff, who heads the Commercial Crime Division, also accused the Attorney-General's Chambers and the ACA of harassing police informants over the detention of an alleged underworld warlord.

Datuk Ramli was charged in court on Thursday for failing to declare some of his assets.

To an outsider looking in, the picture is not pretty.

Datuk Ramli's claims, coupled with the caustic remarks that Sultan Azlan Shah made, present Datuk Seri Abdullah with the serious challenge of trying to convince the local and international business community that Malaysia is a safe investment destination.

Disquiet over Malaysia's judiciary and the country's enforcement agencies is not new.

The problems date back to 1988, when former premier Mahathir Mohamad clashed with the judiciary over several decisions by the courts that went against his administration.

Then the widely published trials of Datuk Seri Anwar in the late 1990s not only raised fresh questions over the judiciary, but also brought the enforcement agencies, particularly the police, under close scrutiny.

Analysts and businessmen said that the Anwar trials helped cement the perception that enforcement agencies and the judiciary were open to dictates by the ruling elite and even some politically powerful business groups.

'The perception remains, and all of these are the remnants of Dr Mahathir's rule,' said Prof Shamsul Amri Baharudin, a professor of social anthropology at Malaysia's National University. 'The message is clear: Abdullah needs to clean things up.'

Close associates of Datuk Seri Abdullah insisted that reforms were already under way.

They noted the recent anti-corruption crackdown on civil servants for alleged abuses in government procurement contracts and failure to disclose their assets, as in the case with Datuk Ramli.

'Allegations of victimisation by the ACA are signs that the virus is trying to fight back, and this shows that the clean-up is working,' said a senior government official.

But lawyers and opposition leaders say that Datuk Seri Abdullah's clean-up push is cursory at best and the political will to institute reforms is lacking.

This could be because of the workings of Malaysian politics.

Datuk Seri Abdullah's ruling United Malays National Organisation (Umno) draws most of its political support from the rural Malay heartland.

In this constituency, concerns over the judiciary and the country's security agencies do not resonate as strongly as they do among the country's urban population.

'There is no push factor for Umno to reform the judiciary or the police,' said a retired judge who asked not to be named.

But the reluctance to deal with growing unease with the judiciary and the enforcement agencies could have serious economic repercussions.

In his speech on Monday, Sultan Azlan Shah cited results of a recent World Bank survey on the resolution of commercial disputes, which gave Malaysia a poor ranking of 63 among 178 countries.

'A similar report by the US State Department warns American businessmen to be wary of the slow process of adjudication of cases before the Malaysian courts,' he said.

'This is indeed a poor reflection on our courts.'

Justice must be seen to be done

The Sun (31/10/2007): There is indeed merit in the call for the restoration of public confidence in the judiciary. Not just because the call was made by Sultan Azlan Shah of Perak, a former Lord President, at the Malaysian Law Conference on Monday and elsewhere on other occasions, but because other people too have voiced similar concerns about the country’s judiciary.

It matters little that only several thousand people of the country’s total population of about 25 million seem to think that all is not well with our judiciary.

Even if only one person complained that justice was denied him by the courts, the nation should be concerned, what more when there have been all kinds of stories about the judiciary dating back two decades, especially after the controversial sacking of Lord President Tun Salleh Abas in 1988. And what more when one of the public suspicions about judges – that some of them do not write down their judgments – was confirmed in the press recently.

People must have confidence in the judiciary as, in the end, it is the only bulwark against injustice and arbitrariness. And for this to happen, the judiciary must be completely independent. Judges must not only be independent but must be seen to be independent. As special people who sit in judgment of others, judges must live up to the special standards expected of them.

As the sultan said, judges "must piously resist the lure of socialising with business personages and other well-connected people". How much more proof do we need before it is acknowledged that this has happened. Thus, it is important that judges "resist the lure" in order to be seen as impartial especially when they are deciding on a commercial transaction.

It is also important that foreign investors must never for one moment doubt the impartiality of our judges. As far as they are concerned, their interests here are guaranteed by the law. And in this regard, especially when Malaysia is now a trading nation, more and more of our judges should become increasingly competent and qualified to deal with complex commercial disputes.

As pointed out by the former Lord President, our judges must never for one moment forget that they live in a multi-racial and multi-religious country. When making decisions relating to culture, race and religion, they must be completely objective, impartial and dispassionate. They must honestly and sincerely prevent their cultural, racial and religious background from clouding their decisions.

And, above all, they must courageously safeguard and defend the Constitution in which is reflected what our founding fathers agreed to when they decided to establish this secular, democratic and multi-cultural nation.

While the rakyat depend on the judges, the judges too must be assured by the vigilance of the justice-loving people of this country.

Full support for sultan’s call

NST (31/10/2007): There is a resounding yes for reform in the judiciary. Retired judges, lawyers and politicians lauded yesterday Sultan Azlan Shah’s call for judicial reform.

Calling Sultan Azlan Shah’s speech at the 14th Malaysian Law conference 2007 “fabulous", retired Court of Appeal judge Datuk V.C. George said: “It made my hair stand on end listening to him. I’ve been screaming for reforms for years.

“The only person in the country, as far as I can see, who doesn’t agree is the Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz.”

Retired Court of Appeal judge, Datuk K.C. Vohrah called Sultan Azlan Shah’s speech “excellent", adding this was “exactly what we need".

On the other hand, constitutional law lecturer Professor Shad Saleem Faruqi said although there was a need for reform of the judiciary, there was nothing wrong with the law.

“The law is excellent. The law on appointments and on dismissal is far better than the law in the United States and and the United Kingdom where parliament can dismiss judges.

“Here judges can only be dismissed on the recommendation of their brother and sister judges.”

Shad Saleem said the compelling problem in the country was the constantly used ’systems approach’.

“We are constantly trying to plant new systems and procedures, which is fine.

“However, what is disregarded is that systems are only as good as the people who administer them.

“We don’t train, choose and develop the right personnel. The selection system is such that the right people are not being promoted.

“What is seriously needed is an overhaul of the personnel manning our institutions who are actually not doing justice to the promise of the law, who are keeping the constitution at the periphery rather than bringing it to the heart of our legal system,” said Shad Saleem.

Acting Gerakan president Tan Sri Dr Koh Tsu Koon said the party was concerned about feedback that recent incidents had adversely affected public perception of the judiciary.

This, he added, was because the judiciary was a crucial part of a liberal and progressive parliamentary democracy.

“As such, we applaud and support Sultan Azlan Shah’s call for all judges to be judges for all Malaysians in line with the spirit of the Federal Constitution and Rukun Negara.

“We also commend Sultan Azlan Shah’s wisdom to call for reform in the Malaysian judiciary,” he said in a statement.

The Sultan of Perak said in his opening address at the 14th Malaysian Law Conference on Monday that it was time for the judiciary to regain the public’s confidence and win back the high esteem it used to enjoy.

Koh said: “We take note of Sultan Azlan Shah’s reminder to judges to be sensitive to the feelings of all parties, irrespective of race, religion or creed and that they should be judges of all Malaysians.”

He also said it was equally important for the Bar Council to play a positive role in ensuring that the Malaysian judiciary discharged its duties effectively.

Zaid Ibrahim, a senior lawyer and MP for Kota Baru said Malaysia still had judges of high calibre but there was a need to improve the judiciary’s image.

Study reforms in picking Judges, says HP Lee

The Malaysian Bar (31/10/2007): It might be opportune to consider possible reforms to strengthen the judicial appointment process in Malaysia, given the ongoing controversies surrounding the judiciary, Professor Lee Hoong Phun of Australia’s prestigious Monash University suggested.

“As Lord Falconer of Thoroton points out,” he told an almost 400-strong audience at the second day of the 14th Malaysian Law Conference at the Kuala Lumpur Convention Centre on Tuesday, “the judiciary is often adjudicating on the legality of executive actions and hence the judicial appointments system must be seen to be independent of government.

“It must be transparent. It must be accountable. And it must inspire public confidence,” the Penang-born academic said.

Prof. Lee suggested this prescription after comparing the judicial appointments system of Australia, Britain and Malaysia from a sociological standpoint of “someone who is removed from the emotions and passions which sparked the highs and lows in the metamorphosis of a nation” and providing overseas experiences as “valuable insights.”

He noted that while the Australian Attorney-General enjoyed the discretion of who to consult and the determination of the scope of such consultation, in relation to appointment to the High Court of Australia, a statute required the Attorney-General to consult with the Attorneys-General of the various component States.

“In the United Kingdom, there has been a ‘complete overhaul of the appointment system in the Constitution Reform Act 2005’,” Prof. Lee said of the statute that replaced the Lord Chancellor’s primary role of selecting judges by two independent judicial appointments commission.

He said that Justice Ronald Sackville of the Federal Court of Australia and a former chairman of the Judicial Conference of Australia had, after invoking Lord Falconer’s observations, also argued for a reform of the Australian judicial appointments process.

“Justice Sackville proffered the following:

‘The most suitable model for Australia would see the creation of an independent commission responsible for making recommendations to government for appointment to vacant judicial offices.

‘The commission’s membership should be equally divided between legal and lay members, although the former would assess an rank the legal qualifications, experience and ability of candidates. All commission members, however, should participate in making the final recommendations’.”

Focusing on Malaysia, Prof. Lee said that “there is even an expectation on the part of the people that the Conference of Rulers can contribute immensely to good governance by providing the government with their collective wisdom and sound counsel” after the constitutional crises of 1983 and 1993.

“The Constitution mandates consultation with the Conference of Rulers in respect of a number of specified matters, for example the appointment of members of the superior court,” he added.

Prof Lee quoted His Royal Highness Sultan Azlan Shah of Perak in a book entitled Constitutional Monarchy, Rule of Law and Good Governance edited by Prof. Visu Sinnadurai in 2004:

“The entire process of consultation with the Conference of Rulers cannot simply be relegated to a mere formality …

“This is a constitutional role that was contemplated by the drafters of the Constitution – a role of checks and balances that ensures the appointment of the best persons to important constitutional positions.

“It was also clearly intended to prevent any abuses of power by not giving the appointing authority the sole discretion in the appointment process of key positions under the Constitution.”

In the book, His Royal Highness, who was also one of the most, if not the most capable, Lord President before his enthronement as the Sultan of Perak, added:

“It is generally difficult to rationalize why a Prime Minister would not want to consider, or even abide by the views of nine Rulers and four Governors who constitute the Conference of Rulers.

“These are independent persons, with vast experience and with no vested interest in nominated candidates. Their duty is to fulfil their constitutional role in ensuring that only the best and most suited candidates are selected for the posts.”

Earlier, Prof. Lee had recounted the six blessings that Malaysia had enjoyed in its first 50 years of Merdeka or Independence as:

- Being colonized by the British, instead of the French, Dutch or Spanish;

- Having Tunku Abdul Rahman as the first leader after his legal education in the “homeland of the common law,” a leader who imbibed the notions of the rule of law, the independence of the judiciary and the separation of powers.;

- Having succeeding Prime Ministers such as Tun Abdul Razak and Tun Hussein Onn, both of whom had similarly imbibed those notions and understood the fundamental importance of the rule of law as the underpinning of a stable nation;

- Being endowed with an already existing solid and sound legal system with highly competent legal practitioners and a respected judiciary at Independence;

- Enjoying the culture of a civilian supremacy over the military; and,

- Enjoying the federal nature of the Constitution.

Prof. Lee also took his audience on a glimpse into the next 50 years, noting that India had exhibited maturity at the transfer of power from the ruling Congress Party to the Opposition. “Malaysia is yet to be tested on that score,” he noted.

He also saw the “religion factor” as a major hurdle within a secular constitution and said the extent to which the cancer of corruption “which has undermined stable government in many developing countries can be curbed will determine the prospects of good governance and impartial and fair administration of justice.”

The people are fed up

Other Malaysia (31/10/2007): At a recent Law Conference held in Kuala Lumpur, the Prime Minister of Malaysia, Abdullah Ahmad Badawi, bluntly told the country’s lawyers that demonstrations and protests about the apparent mismanagement of the country will do little to change things but will only give the ‘wrong impression’ that ‘something is wrong in the country’, and that this will scare aware foreign investors. The Malaysian leader was alluding to a recent protest march organised by the country’s lawyers which saw more than two thousand lawyers march up to the Prime Minister’s office in the capital of Putrajaya demanding reform of the judicial process and serious enquiries into the conduct and election of judges in Malaysia. Perhaps the Prime Minister was also alluding to the planned march on 10th November organised by NGOs like BERSIH which have called for free and fair elections in the country, supported by opposition parties like the Peoples Justice Party (PKR), the Malaysian Islamic party (PAS) and the Democratic Action Party (DAP) of Malaysia as well.

What began as a relatively small event has now grown into what may become a landmark moment in Malaysian history: The march’s organisers aim to gather 100,000 citizens at the Merdeka (Independence) Square of the city and then march on to the national palace to present their petition to the King (Agong) himself, calling for the Monarch to intervene and look into their complaints about the poor governance of the country on issues ranging from corruption to abuse of power by the leaders of the ruling UMNO party and the government. As Latheefa Koya of the People’s Justice Party notes: “BERSIH’s march marks a crucial point in Malaysian history where people from all walks of life, and not just political parties, demand free and fair elections in Malaysia. By doing so they are in fact calling for greater participation in the democratic process”. The King has already signalled that he is prepared to receive the petition, while other rulers such as Sultan Azlan Shah of the state of Perak have publicly bemoaned the state of the judiciary in Malaysia.

While it is true that Malaysia is not Burma, it is striking to note how intolerant the state is when it comes to popular expressions of the people’s will in the country. Predictably the Malaysian government has reacted to the proposed march on 10th November with the usual round of threats: Those who attend the demonstration will be regarded as trouble makers and due action will be taken, the government-controlled news agencies have already warned.

In response the President of the Pan-Malaysian Islamic Party (PAS) has called on all members of the party to attend the rally and to swell the numbers of participants instead. According to Hatta Ramli, one of the senior leaders of PAS: “This is to show that the members of the Islamic party are supportive of this move by the Malaysian NGOs to call for free and fair elections. It is going to be a peaceful demonstration, so why the need for such warnings? The Malaysian Human Rights Commission (SUHAKAM) has stated that the Constitution allows for free peaceful assembly, so we are merely exercising our right to demonstrate our concern about the conduct of elections in Malaysia. This is the expression of popular democracy, of the people’s will and our intention to see that we have clean elections in Malaysia.”

Nor are the march’s organisers fazed by the threats of reprisals. According to Raja Petra Kamaruddin, who runs the country’s most widely-read online news site Malaysia-today.net, “they (the government) have been issuing such threats for more than a decade now, so why should we worry? They insist that we apply for a police permit but we know that such a permit will be refused anyway. In some cases in the past permits were given but then withdrawn at the last minute, so this time we merely informed the police that we will be having the march and we will go ahead.”

The Malaysian government is worried that such a public display of dismay over the government’s record will focus attention on Malaysia in a negative way. Instead it has tried its best to spin the story of Malaysia’s successes one by one, the latest being the achievements of the country’s first astronaut who was sent to space on board a Russian rocket to dock with the International Space Station in orbit. But special effects and cosmic stunts have not altered the realities on the ground where Malaysian politics remains dominated by news of scandals involving corrupt policemen, politicians being accused of manipulating the judiciary and alleged links between the government, police and underworld mafia triads and gang bosses. One of the latest revelations involved the corruption behind the Port Kelang Free Trade Zone project, where running costs and overheads have caused the project’s costs to skyrocket from 1.8 to 4.2 Billion Ringgit (RM), leaving ordinary Malaysians shocked and stumped on how such projects can lead to such large kickbacks for so many well-connected individuals. What is more, all of this is happening under the eyes of the Badawi government, which came to power four years ago on the promise of ridding the country of corruption once and for all.

As the crucial date of 10th November gets closer, the machinery of the state along with its security apparatus will undoubtedly be cracked up to demonise the protestors and to prevent the march from happening. Malaysia’s Prime Minister Abdullah Badawi may lament the occasion as it sends out the clear message that the people are fed up with his lacklustre performance thus far, but it will hardly be the reason why foreign investors are leaving Malaysia: Indeed, if anything is to restore the faith of others in the country it would be the freedom to demonstrate openly and peacefully without threat of violence from the state.

No, if foreign investors are giving up on Malaysia is has more to do with the plethora of corruption cases involving members of the police, the routine abuse of power by the elite and the deplorable reputation of the Malaysian judiciary and civil service at present. And the responsibility for these failures lie not in the hands of the Malaysian people, but in the Malaysian government its

Be ready to boycott judiciary, lawyers told

Malaysiakini (31/10/2007): What should lawyers do next if there is no action on the judicial scandal exposed by the ‘Lingam tape’? Put their foot down and be brave enough to walk out of courts, that’s what!

This bold suggestion was made at a special session entitled 'We watched, we walked, we now ... do what?' at the 14th Malaysian Law Conference this afternoon.

The session kicked off with the eight minute video clip being shown on a theatre-size screen. (Full story)

Reform May Impact Investments

Houston Chronicle (30/10/2007): Instituting judicial reforms in Malaysia will not scare foreign investors away, the country's largest lawyers' group said Tuesday, rejecting a warning by the prime minister.

The Malaysian Bar Council, which represents 12,000 attorneys, claims the government is not doing enough to resolve a scandal sparked when a video clip was released purportedly showing a prominent lawyer brokering the appointment of top judges.

Prime Minister Abdullah Ahmad Badawi told a gathering of lawyers Monday that the council sent "negative vibes to domestic and foreign investors" when it held a rare public demonstration last month to highlight alleged judicial corruption.

About 1,000 lawyers marched through Malaysia's administrative capital Sept. 26, urging authorities to investigate the video clip and change how judges are appointed.

Council President Ambiga Sreenevasan said Tuesday Abdullah was entitled to his views, but she defended the council's moves as necessary because "we certainly felt that no one was listening."

"We think that problems with the judiciary are what would damage investments _ not freedom of expression," Ambiga told reporters.

Abdullah had urged lawyers not to be "irrationally negative or unduly pessimistic," adding that he wants to work with the council "sincerely and without preconditions, as well as without being suspicious of each other."

The government has set up an independent panel to probe the authenticity of the video, but says there is no need to overhaul the judiciary.

Currently, the prime minister chooses senior judges, although the king formally appoints them. The Bar Council wants an impartial commission to evaluate candidates.

Ambiga said council officials hope to accept Abdullah's invitation to meet soon to discuss their concerns, but added that the council "cannot be restrained" in expressing its views.

"We want a dialogue with him," Ambiga said. "We also form the voice of the public."

Badawi to lawyers: Don't scare off investors

Today Online (31/10/2007): Malaysian Prime Minister Abdullah Ahmad Badawi has warned the country's lawyers that their demands for judicial reforms could clash with national interests and send foreign investors fleeing.

Speaking at a conference organised by the 12,000-member Bar Council on Monday, Mr Abdullah said lawyers who staged a rare public demonstration last month (picture) to highlight worries about alleged judicial corruption could create "the impression that a problem has reached an intractable impasse — even when in reality, it has not".

"Above and beyond this, it also sends negative vibes to domestic and foreign investors, undermining tireless efforts of industry and government in attracting investments," Mr Abdullah said.

He added that he wants to work with the Bar Council "sincerely and ... without being suspicious of each other".

Malaysia's Bar Council has stepped up its calls for reforms amid a scandal sparked last month by an opposition party that released a video clip in which a prominent lawyer is allegedly caught on camera brokering the appointment of top judges in 2002.

About 1,000 lawyers marched through Putrajaya, Malaysia's administrative capital, on Sept 26, urging the government to investigate the case and change how judges are appointed.

The government has set up an independent panel to probe the authenticity of the video, but says there is no need to overhaul the judiciary.

In response to Mr Abdullah's comments, Council president Ambiga Sree-nevasan defended the council's moves.

"We think that problems with the judiciary are what would damage investments, not freedom of expression," she said.— AP

AG breaks law in Lingam tape probe

Malaysiakini (31/10/2007): We are shocked to see the chairman of the panel, a retired Chief Judge of Malaya, telling the public that "the AG has authorised the disclosure of the evidence to the panel". This is preposterous.

Since when did the attorney-general suddenly develop the power to authorise the committing of a criminal offence? (Full text)

Be ready to boycott judiciary, lawyers told

Malaysiakini (31/10/2007): What should lawyers do next if there is no action on the judicial scandal exposed by the ‘Lingam tape’? Put their foot down and be brave enough to walk out of courts, that’s what!

This bold suggestion was made at a special session entitled 'We watched, we walked, we now ... do what?' at the 14th Malaysian Law Conference this afternoon.

The session kicked off with the eight minute video clip being shown on a theatre-size screen. (Full text)

Second Judicial Crisis In The Making

(MySinChew, 29/10/2007): Is there still a Chief Justice in Malaysia after 31 Oct?

This is a serious issue. Lim Kit Siang said this might be the second judicial crisis in the country.

(The first judicial crisis was in 1988. The Lord President of the Supreme Court, Tun Salleh Abas and two other judges, were suspended and were eventually sacked.)

Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim will reach the compulsory retirement age of 66 on 1 Nov.

Reportedly, he has sought a six-month extension for his tenure.

The extension is to be approved by the King, under the Prime Minister's advice.

The retirement date for Tun Ahmad Fairuz Sheikh Abdul Halim is fast approaching, but his application for extension remains unclear.

The controversial judiciary video clip exposing alleged tampering with judicial appointments makes the issue more complicated. The identity of the prominent lawyer in the video, is about to revealed.

There are speculations that government will extend the Chief Justice’s tenure for just one or two months or, more surprisingly,the Ruler’s Council may not even extend it at all.

In the midst of all this, Dato Seri Nazri, the de facto law minister, disclosed that the “King must act on the PM’s advice” regarding the extension of the CJ’s term.

The answer to all this is about to be revealed.

Opposition MP Karpal Singh and the Malaysian Bar Council are of different opinion. They insisted that the king alone has the discretion on the extension of the Chief Justice.

This raises a few questions:

* Is it the Prime Minister or the King who determines the term for the Chief Justice?
* Does the Prime Minister differ with the king the extension of term?
* What is the reason if any for not approving the extension?
* What will happen when it comes to a deadlock?

These problems involve the separation of powers, the Constitution's interpretation and the politics between the executive, the judiciary and the rulers. This has great impact to the country.