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• 'Report provides catalyst for further probe'

©The Sun (Used by permission)
by Tim Leonard

• Appoint special prosecutor: Guan Eng
• ACA to re-open NZ holiday case

PETALING JAYA: The Royal Commission of Inquiry on the V.K. Lingam video clip has, among others, recommended that the government re-look Article 121 (1) of the Federal Constitution – which deals with the judicial powers of the federation – and amend it to its original form.

Article 121 (1) reads: “There shall be two High Courts of co-ordinate jurisdiction and status … and such inferior courts as may be provided by federal law and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.”

Before its current form, the article read: “... the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status ... and such inferior courts as may be provided by federal law.”

In this context, the commission noted the remarks of Abdul Hamid Mohamad, PCA (acting chief justice), in PP v. Kok Wah Kuan (2008), who said: “After the amendment, there is no longer a specific provision declaring that the judicial power of the Federation shall be vested in the two High Courts.

“What it means is that there is no longer a declaration that ‘judicial power of the Federation’ as the term was understood prior to the amendment, vests in the two High Courts. If we want to know the jurisdiction and powers of the two High Courts, we will have to look at the federal law.”

In recommending the establishment of a Judicial Appointments Commission (JAC), the relevant articles in the Federal Constitution like Article 122B, would need to be looked into and amended accordingly according to the commission’s recommendations.

The commission recommended that for transparency, accountability and good governance and to give effect to the role of the JAC, the flight from Queenstown to Christchurch and then took the same plane from Christchurch to Singapore via Auckland and thereafter back to Kuala Lumpur,” the report said.

The commission deduced through evidence that the promotion and appointment of judges in the upper echelon of the judiciary was open to interference and manipulation by the Executive and private citizens.

“The inherent weakness in the process of appointment and promotion of judges and its vulnerability to interference and manipulation could result in extreme damage to the independence and integrity of the judiciary,” it said.

The commission was also of the view that there is no need to set up a Judicial Complaints Tribunal, as proposed by the Malaysian Bar Council, as judges are not public officers and there are adequate legal provisions for action to be taken against them for misbehaviour.

It recommended that the chief justice, being head of the judiciary, be the head of the JAC, and that besides the president of the Court of Appeal, the chief judges of the two High Courts be appointed as automatic members.

The retired chief justices, presidents of the Court of Appeal, the chief judges of the two High Courts and Federal Court judges, in that order, may also be considered as members, but the commission did not fix a number, saying it was up to the government to consider.

It also stressed that the report was not meant as an indictment against all judges.

 “…the vast majority of judges in the courts have fully adhered to their oath of office of administering justice according to the law and without fear or favour,” read the postscript to the commission’s findings.

“Unfortunately, given the crucial role of the judiciary as the guardian of the Federal Constitution and the role of law … and the high expectations of the public in absolute integrity of our judges, the misbehaviour of a few, like an insidious and malignant cancer, can unjustly and unfairly infect the judiciary as a whole. This is a painful fact.”

Appoint special prosecutor: Guan Eng

SEBERANG PERAI: DAP secretary-general Lim Guan Eng has called for a special prosecutor, instead of Attorney-General Tan Sri Abdul Gani Patail, to be appointed to conduct the investigation on the six key persons named in the Lingam video clip report.

Lim, who is also the Penang chief minister, wondered whether Abdul Gani can act without fear or favour in executing the required duties as he has had relations with the people implicated in the case.

“I am not saying he is biased. But impressions are important,” Lim told reporters yesterday. “Justice must not just be done; it must be seen to be done.” The six individuals are former prime minister Tun Dr Mahathir Mohamad, lawyer Datuk V.K. Lingam, tycoon Tan Sri Vincent Tan, Umno secretary-general Datuk Seri Tengku Adnan Tengku Mansor, and former chief justices Tun Eusoff Chin and Tun Ahmad Fairuz Sheikh Abdul Halim.

ACA to re-open NZ holiday case

by Llew-Ann Phang

PETALING JAYA: Attorney-General Tan Sri Abdul Gani Patail yesterday ordered the Anti-Corruption Agency (ACA) to re-open the case involving former chief justice Tun Mohd Eusoff Chin and lawyer Datuk V.K. Lingam, in particular the New Zealand holiday they went on in 1994.

In a statement yesterday, the ACA said the case was closed by the late A-G Tan Sri Mohtar Abdullah as “it did not have evidence”.

In November 2000, Mohtar had said there was no case of alleged misconduct against Eusoff.

“The case was investigated by the ACA after receiving information from the public in 1998,” the agency said, adding that it received instructions by Abdul Gani yesterday morning to re-open the case and give focus to the issues raised in the Commission of Inquiry’s report on the Lingam video clip issue.

The ACA had previously said there was a “full-scale investigation” by the A-G’s Chambers, the police and the agency itself into a photograph showing Eusoff and Lingam on holiday in New Zealand.

Eusoff was then heading a panel to hear an appeal case involving businessman Tan Sri Vincent Tan, who was represented by Lingam.

The inquiry had heard testimonies from Eusoff and Lingam that they had “bumped” into each other at Changi Airport in Singapore en route to New Zealand.

“Although Eusoff Chin had testified that he and his family had (in his words) ‘bumped’ into Lingam and his family at Changi Airport while on their way to New Zealand, he nevertheless admitted that they travelled together in the same fl ight from Singapore to Auckland, visited the zoo and bird park in Auckland together, flew together from Auckland to Christchurch, took the same van from Christchurch to Queenstown, spent a fishing trip together in Queenstown, flew back together on the same flight from Queenstown to Christchurch and then took the same plane from Christchurch to Singapore via Auckland and thereafter back to Kuala Lumpur,” the report said.

“When asked to explain his actions concerning the said New Zealand holiday trip, Eusoff merely said they were all coincidences. When questioned about this, Lingam reiterated the same stand.

“Given the amazing number of alleged coincidences, we need no more than mere common sense to detect the incredulity of that proposition.

“In the circumstances, we are unable to accept the veracity of their denials.” The report said it was “more than probable” the trip was pre-planned.

The commission had also heard evidence by Lingam’s younger brother, Thirunama Karasu, revealing incidences of the delivery of files to Eusoff’s house, an intended purchase of a house for Eusoff, the delivery of a handbag and wallet to Eusoff, and purchase of handphones for Eusoff.

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