News Bar News/Berita Badan Peguam The Royal Commission of Inquiry into the Video Clip – Day 11 Session 1 
| The Royal Commission of Inquiry into the Video Clip – Day 11 Session 1 |
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| Contributed by Dipendra A/L Harshad Rai | |
| Tuesday, 29 January 2008 04:07pm | |
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Yeo Yang Poh (counsel for the Malaysian Bar) continued cross examining Tun Ahmad Fairuz. Tun Fairuz said that in the context, it would be reasonable for a person, having watched the video clip and its references to him, to assume that Dato' Lingam was speaking to him. Tun Fairuz also agreed, that if the video clip was taken to be true and in its context would suggest corruption and scandalising the judiciary. Tun Fairuz also said that the contents of the video clip involved matters of public interest and if the contents are true they would affect the integrity of the judiciary and agreed with Yeo’s suggestion that public confidence is of utmost importance. Tun Fairuz added that he had not made any public statement to assure the public that it was not him that was referred to in the video clip and added that because the video clip was the subject of an investigation, he felt that there was no need to make any statement. Tun Fairuz also said that he did not find it strange and it was acceptable for the head of judiciary to remain silent because he did not want to jeopardise any investigation. To a question whether he had called for an investigation, Tun Fairuz said that there was no need to do so. Yeo then asked Tun Fairuz on the 3 letters he had sent to the PM, DPM and Minister in the PM’s Department. Yeo asked why Tun Fairuz wrote those letters “on a need to know basis” and why was it only that the heads of the Executive needed to know and not the public? At this stage Chairman Tan Sri Haidar interjected and said that Yeo cannot expect the witness to know the answer. This was echoed by Kamarul Hisham acting for Tun Fairuz who said that Yeo’s questioning would result in an unfair assumption on the part of the witness. Tun Fairuz also could not remember if he was asked for an interview by Malaysiakini on 20 September 2007 but also said that he remembered issuing a “no comment” reply to Malaysiakini. At this stage, Dato Shanker queried the witness on the “need to know” issue raised in Tun Fairuz’s letters to the PM/DPM and Minister in the PM’s Department. Dato Shankar asked what was that the Executive needed to know only and what about the public? Tun Fairuz said that he was referring to ‘Lampiran 1’ (transcript) and the alleged conversation between Dato' Lingam and another person. He further said that because the PM, DPM and Minister in the PM’s department were heads of the Executive and I being the Head of the Judiciary, he felt that they had to know as they may be asked about it in Parliament. When asked again whether he felt that the public need not know about this, Tun Fairuz said that he was not suggesting as such. Tun Fairuz also said that he did not telephone Nazri (Minister in the PM’s department) on 23 September 2007 but confirmed that he had written to him and denied being the person spoken to in the video clip. He was also not aware that Nazri had said to the press that Tun Fairuz had called him. Tun Fairuz also confirmed that he was interviewed by the Anti Corruption Agency (ACA) somewhere before Hari Raya in November 2007. Tun Fairuz also said that he was only shown the 8 minute video clip during the ACA interview and only saw the 14 minute version for the first time yesterday. Tun Fairuz also confirmed that he had only one phone number and he had given his phone number to the ACA. Tun Fairuz added that he formed his assessment that Dato' Lingam was bragging after reading the transcript of the conversation on 20 September 2007 and before watching the 14 minute video clip. He said this because Dato' Lingam was showing off about his connections with Tan Sri Vincent, Prime Minister etc and said that he assumed that there were people in the room as there were bottles of drinks around. He confirmed that he had not seen anyone in the video clip. Tun Fairuz also said that it was acceptable for a lawyer to act in the manner in which was portrayed in the video clip so long as it was before the lawyer’s own client. However, Tun Fairuz agreed that such behaviour may amount to contempt of court and said that no contempt of court was brought against Dato' Lingam by him. At this stage, Kamarul Hisham interjected and suggested that all questions posed to Tun Fairuz must be fair. Dato' Shankar said that if the judiciary was scandalised, then the Chief Justice as the head of Judiciary must step in. Tun Fairuz said that first and foremost investigations were still going on and secondly he did not know who was the real person in the clip or whether it was fabricated. However, Tun Fairuz confirmed that it was not right for a judge to go on holiday with a lawyer whom he has a case with. Tun Fairuz also confirmed that it is a provision under the Federal Constitution that the PM would consult the Chief Judge of Malaya or the Chief Judge of Sabah and Sarawak for appointment of judges in respect of the High Court of Malaya or the High Court of Sabah and Sarawak. Tan Sri Haidar then disallowed any question on Tun Fairuz’s ability to empanel quorum of judges. Tun Fairuz also said that there is similarity between the Indian man and Dato' Lingam but added that the clip is not clear and although he had seen Dato' Lingam on television, he cannot state positively that it was Dato' Lingam. Tun Fairuz went on to say that he attended a dinner in June 2005 (Buckingam Law Alumni) at the Mandarin Oriental as a guest of honour. He recalled meeting Dato' Seri Najib there but could recall sitting in the same table with Tan Sri Vincent Tan, Dato' Lingam or Dato' V Sivaparanjothy. Tun Fairuz also said that during his tenure as Chief Justice, he generally recommended titles for judges. Tun Fairuz also confirmed that he received his Tan Sri-ship in 2002. He did not know if it was through the recommendation of Tun Dzaiddin but only knew that he would be conferred as such. Tun Fairuz also said that he did not know who Dato' Lingam was referring to when Dato' Lingam remarked “leave it to God”. He also did not know what Dato' Lingam meant when he said “you suffered so much…” To a question by Yeo that normally one would order a fresh election, Tun Fairuz said that he acted under the law and facts. He did not answer whether he knew of similar other election petition cases as Tan Sri Haidar had asked Yeo to move on with his questions as it was not part of the terms of reference of this inquiry. Zamani Ibrahim for Tun Eusoff Chin asked Tun Fairuz on the appointment of Judges. Tan Sri Haidar remarked that this had all been covered before and wanted the questions to be brief. Tun Fairuz remarked that there is a series of consultation between the PM, Chief Justice, Chief Judge Malaya and the Conference of Rulers. Wee Choo Keong then asked Tun Fairuz whether he had contacted Dato' Lingam by telephone the moment the video clip went public. Tun Fairuz replied that he did not as he could not positively identify Dato' Lingam and furthermore he did not want to have further allegations levelled at him. Wee then attempted to ask Tun Fairuz about an election petition case involving him and that there were 3 candidates. Dato' Shankar reminded him that this was not the Court of Appeal and that Wee should move on. Wee then asked Tun Fairuz why he chose a losing candidate and that there were 3 candidates. Tun Fairuz replied that he could not remember. Tun Fairuz also confirmed that he would be upset if a lawyer had brokered his appointment. In reply to the questions asked by Khoo Guan Huat (appearing for Tun Dzaiddin), Tun Fairuz said that he only recalled speaking to Tun Dzaiddin on the eve of the Yang di-Pertuan Agong’s birthday in 2002 on his conferment of Tan Sri-ship. Tun Fairuz however could not recall telling Tun Dzaiddin who recommended him for Tan Sri-ship in particular whether it was Tengku Adnan. To a query by Tan Sri Steve Shim, Tun Fairuz said that the appointments and promotions of judges were at the discretion of the PM and that there were candidates who were rejected. Robert Lazar: It's an outrageous lie The next witness Robert Lazar (Witness No.15) took the stand. He was tendering evidence in relation to an allegation made by Dato' Lingam yesterday. Lazar said he was aware of the allegation made by Dato' Lingam yesterday but it was an outrageous lie committed by Dato' Lingam. Lazar further added that he had never asked Dato' Lingam to lobby for him for any post and that there was no basis for this fact. Lazar said that he understood that this incident took place in early 2000 when he was a 43 year-old legal practitioner and had no intention of abandoning his legal career. He also confirmed that he was the counsel for Star Papyrus and Dato' Lingam was acting for Mirzan Mahathir. Lazar also confirmed that he did not have any drink with Dato' Lingam and suggested that Dato' Lingam may have made the allegation because he was out to discredit and embarrass him. Lazar also described it as an an attempt to disqualify him from acting for the Malaysian Bar as well as to divert attention and to have an entertaining discussion at his expense. Lazar also disagreed to a suggestion by R Thayalan (counsel for Dato' Lingam) that the former and Dato' Lingam had a drink at the Seng Nam Restaurant. Tun Dzaiddin: It was Tengku Adnan who recommended Tan Sri-ship for Tun Fairuz The next witness (No.16) to take the stand was Tun Mohd Dzaiddin bin Abdullah. Datuk Nordin appearing for the Prosecution asked if Tun Dzaiddin was involved in the appointment of judges. Tun Dzaiddin said that he was but added that he was not influenced by anyone in the appointment of judges. Tun Dzaiddin also said that he had originally suggested the late Tan Sri Abdul Malek as acting President Court of Appeal before Tun Fairuz being nominated. He also said that the late Tan Sri Malek was also suggested first for the post of Chief Judge of Malaya but eventually Tan Sri Malek’s candidacy was rejected and that Tun Fairuz was proposed. Tun Dzaiddin also confirmed watching the video clip and said that the features of the Indian man looked like Dato' Lingam and said that Dato' Lingam appeared before him about 2-3 times previously. Tun Dzaiddin also said that he was not surprised by the rejection of Dr Andrew Chew and Zainuddin Ismail and added that the then PM did not call or offer any explanation on why he had rejected both of them. Tun Dzaiddin also said that although he did not hate Tun Eusoff Chin, he disliked him and when pressed further Tun Dzaiddin said that this was because Tun Eusoff Chin kept on telling many untruths. Tun Dzaiddin added that he did not know a “James Kumar” but knew a “James Foong” and added that during his tenure as Chief Justice he did sit on any quorum involving Dato' Lingam’s cases. Tun Dzaiddin was then asked by his counsel Wong Chong Wah on the criteria used for the appointment and promotion of judges. Tun Dzaiddin said that it was based on seniority, capability and integrity and in the case of the late Tan Sri Malek, he was the most senior and capable Federal Court judge. Tun Dzaiddin also confirmed that the PM did not accept his recommendations and added that his letter to the PM showed that in the end he recommended Tan Sri Fairuz over Tan Sri Mohtar. Tun Dzaiddin also said that he recommended the late Tan Sri Malek and if this was not possible Tan Sri Siti Norma for the post of Chief Judge of Malaya. Tun Dzaiddin also said that he was surprised to hear the 5 names (Dato' Ramly Ali, Dato' Heliliah, Dato' Ahmad Maarop, Dr Andrew Chew and Zainuddin Ismail) being leaked out when only the PM, CJM and himself knew about it. He also said that he had discussed with the Chief Judge of Malaya and the Chief Judge of Sabah Sarawak and made an appeal for the candidacy of Dr Andrew Chew and Zainuddin Ismail to be reconsidered. Tun Dzaiddin added that he did not recommend Tan Sri-ship to Tun Fairuz but added that he only knew about it on the eve of the Yang di-Pertuan Agong’s birthday. Tun Dzaiddin then revealed that Tun Fairuz had told him that it was Tengku Adnan who recommended Tun Fairuz for Tan Sri-ship. To some questions by Wee, Tun Dzaiddin recalled recommending Steve Shim for Tan Sri-ship and added that he did not condone judges going on holiday with lawyers. Proceedings took a break at 12.56 pm and will resume at 2 pm. Comments (1)
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Direct Access Mastercard Exclusive Rebates
That decision in the election petition case involving counsel Wee Choo Keong in the Opposition blue-ribbon seat is a decision that even first year law students will say stands on its own facts.
The judicial decision in the Bukit Bintang case is certainly not a legal "precedent" under the Doctrine of Stare Decisis although it is a "precedent" of sorts for the entire common law world when it certainly equated the "sanctity of the ballot box" to the "frivolity of a beauty contest."
I do not think such a decision is funny. It displayed gross disrespect for the institution of Parliament.
My prayer for the future is that we in Malaysia will not produce another Judge who will make such a ridiculous decision. Indeed, we need and must value Judges who are prepared to apply the law according to the facts of the case - entirely without fear or favour.
Stephen Tan Ban Cheng