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©Malaysiakini
(Used by permission)
by Soon Li Tsin
The royal commission inquiry into the Lingam tape commenced this morning with an
application being made for the disqualification of its chairperson and two other
members.
Lawyer M Puravelan, acting for PKR leaders Anwar Ibrahim, R Sivarasa and Sim Tze
Tzin, applied at the outset of the inquiry for chairperson Haidar Mohd Noor and
commission members Steve Shim Lip Kiong and Zaitun Zawiyah Puteh to recuse
themselves from the commission.
Haidar is the former Chief Judge of Malaya, Steve Shim is the retired Chief
Judge of Sabah and Sarawak while Zaitun is the former solicitor-general.
Puravelan said that the presence of the three in the inquiry would constitute
conflicts of interest due to their current positions as well as their past
conduct.
He added that Haidar was a trustee at the Perdana Leadership Foundation which is
headed by former premier Dr Mahathir Mohamad. Mahathir is expected to be called
as a witness at the inquiry.
Another witness whose name was mentioned several times in the video, businessman
Vincent Tan, is also a trustee in the foundation. He is known to be a close aide
of Mahathir.
Another point raised by Puravalen was Haidar and Shim’s involvement as judges in
the Raphael Pura defamation case where corruption claims in judiciary were ruled
to be irrelevant.
Pura in 2000 had amended his claim to insert allegations that Lingam has written
part of a judgment by late judge Moktar Sidin in another defamation who ruled in
Tan’s favour.
The proposed amendments also included allegations that Lingam cultivated
inappropriately close relations with former Chief Justice of Malaysia Eusoff
Chin when their families were pictured together on holiday in New Zealand in
December 1994.
When the case reached the appellate courts, Haidar sat in the Court of Appeal
and Shim in the Federal Court. Both had ruled that amendments of Pura’s defence
was made in bad faith and dismissed his claims.
Likelihood of bias
Puravalen argued that these factors affected public perception on the proper
conduct of Haidar and Shim’s involvement in the commission.
He also noted that Shim’s name was also mentioned in the 14-minute video clip
and could potentially be a witness in the hearings.
Robert Lazar, holding a watching brief for the Malaysian Bar, supported
Puravalen’s argument on Haidar and Shim’s recuse.
“The nature of the inquiry is different from a trial. The question of likelihood
of bias (by the commission) is even more pressing and the standard (to appear
unbiased) is higher.
“Commissioners of the inquiry are the sole arbitrators. The commissioners have
to follow leads which may lead to an embarrassment to one of them. It is for the
individual commissioner to decide whether to recuse himself or not,” he said.
As for Zaitun, her removal was sought by Puravalen following her involvement in
the prosecution of Anwar’s corruption trial. The tape makes a mention of the
trial as well.
Haidar did not say anything on the application while Shim mentioned that he
needed time to think.
Another commissioner, former Court of Appeal Judge Mahadev Shankar, said that an
exclusion of a commissioner involved various issues as the five members were
mandated by the king to carry out their task for this inquiry.
Panel's decision
Following a lengthy submission and counter submission, Puravelan said that he
was leaving it to the panel to decide on his application.
After having thought over the matter over the lunch break, the three
commissioners said that they were not recusing themselves as there were “no
valid reason to recuse”.
Shim and Zaitun said that they will only recuse if they could not carry out
their work properly.
“I am not convinced at this point in time to recuse myself buy I may consider to
recuse when facts in due course reveal itself,” said Shim.
As for Zaitun, she also clarified her position as a prosecutor in Anwar’s case.
“I did some cases that involve Anwar. It was a job as civil servant but the
decision was the courts’, not mine. Be assured that if I feel I am not doing my
job, I will recuse myself,” she said.
As for Haidar, he said: “Speaking for myself, there is no valid grounds to
recuse myself.”
The inquiry started kicked off today with the questioning of two Anti-Corruption
Agency officials. Sim, Sivarasa and Anwar are scheduled to be questioned
tomorrow.
The other member of the commission is academician-cum-historian Prof Dr Khoo Kay
Kim. The director-general of Legal Affairs in the Prime Minister's Department,
Abdullah Sani Abdul Hamid, is commission secretary.
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Circular No 297/2008
