Contributed by Brendan Navin Siva, Shamala
Balasundaram and Toi Tee Toen
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Lingam Tape inquiry begins with controversy
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Lawyer applies for inquiry members to recuse themselves
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Haidar, two commissioners asked to recuse
KUALA LUMPUR: Proceedings of the Royal Commission of Inquiry Into the V.K. Lingam Video Clip began at 10 this morning. The proceedings were conducted in one of the vacant courtrooms on the 3rd Floor, Left Wing of the Kuala Lumpur Court Complex at Jalan Duta.
For an event of such importance and significance, the choice of venue – a
normal–sized courtroom – was surprising. A large number of people who wished to
attend and observe the proceedings as they unfold were denied entry due to the
space constraints.
Members of the Royal Commission – Tan Sri Haidar Mohd Noor, Tan Sri Steve Shim
Lip Kiong, Datuk Mahadev Shankar, Puan Sri Zaitun Zawiyah Puteh and Prof
Emeritus Datuk Dr Khoo Kay Kim – entered the courtroom and took their seats at
the area normally reserved for the presiding judge of such a courtroom.
Dato’ Nordin Hassan and Dato’ Azmi Arifin started the proceedings by introducing
themselves as appearing for the prosecution.
The other counsel appearing on the day then stood up to introduce themselves. R.
Thayalan introduced himself as appearing on behalf of Dato’ V.K. Lingam. Pradeep
Kumar introduced himself as counsel for Tan Sri Vincent Tan. M. Puravalen, Oh
Choong Ghee, Ravindra Nekoo and Yusmadi appeared for Dato’ Seri Anwar Ibrahim,
Sivarasa Rasiah and Sim Tze Tzen. Salehuddin Saidin, Syed Alwi Ahmad Alsri,
Kamarul Hisham Kamaruddin appeared as counsel for Tun Ahmad Fairuz. Wong Chong
Wah and Khoo Guan Huat appeared for Tun Dzaiddin. Americk Sidhu appeared as
counsel for Mr. Loh Mui Fah, a potential witness who is volunteering to give
evidence. Azhar Azizan Harun, Haris Ibrahim and Robin Lim Fang Say appeared on behalf
of 3 NGOs – Aliran Kesedaran Negara (ALIRAN), the National Human Rights Society
(HAKAM) and Suara Rakyat Malaysia (SUARAM) respectively.
For the Malaysian Bar, Robert Lazar, Yeo Yang Poh, Christopher Leong, Ranjit
Singh and Razlan Hadri attended as counsel.
Tan Sri Haidar then enquired as to the provisions relied upon by each counsel
for appearing before the Commission of Enquiry. Section 18 of the Commission of
Enquiries Act was relied upon by all parties. Robert Lazar on behalf of the
Malaysian Bar submitted that the Bar was also relying on section 42 of the Legal
Professions Act. It was submitted that the subject matter of the enquiry was of
concern to the Malaysian Bar.
After a short break to consider the position of each of the parties, the members
of the Commission returned and allowed all the parties to be represented during
the proceedings. They however permitted one counsel to take part for each
witness.
The Commission then proceeded to hear an application by M Puravalen for the
recusal of 3 members of the Commission – Tan Sri Haidar, Tan Sri Steve Shim and
Puan Sri Zaitun Zawiyah Puteh.
The application to recuse Tan Sri Haidar was based on 2 grounds. The first was
that Tan Sri Haidar was a trustee of the Perdana Foundation and two co–trustees
of the said foundation were due to be witnesses in these proceedings, Tun Dr
Mahathir and Tan Sri Vincent Tan. The second ground was that Tan Sri Haidar was
a member of the panel in the Court of Appeal which decided the case of
Raphael Pura v Insas [2001] 1 MLJ 49. Counsel made it clear from the outset
that he was not casting any personal aspersions against Tan Sri Haidar but that
it was a matter of perception. He submitted that he was relying on apparent bias
and not actual bias.
The grounds for the application for the recusal of Tan Sri Steve Shim was
because there was specific mention of his name in the video clip in the context
of the award of Tan Sri–ship and he may potentially be called as a witness.
Further, Tan Sri Steve Shim was a member of the panel that decided the case of
Raphael Pura v Insas in the Federal Court. Counsel made it clear again
that he was also not asserting any personal aspersions against Tan Sri Steve
Shim.
Datuk Mahadev Shankar interjected several times during submissions to express
his concern that it may be the case that counsel was constrained by the fact
that this was a public hearing and counsel appeared inhibited from disclosing
facts or evidence at this stage that he may want to rely upon later during
proceedings or that may later be established during the course of proceedings to
be unfounded. Datuk Shankar commented that a closed hearing may be the answer.
The grounds for the application for recusal of Puan Sri Zaitun was her
involvement as Senior Federal Counsel or Solicitor General in several cases
relating to Datuk Seri Awar Ibrahim and Wee Choo Keong. Again, it was made clear
that no aspersions were being cast against Puan Sri Zaitun personally.
The Commission then called upon the other counsel to express their views on the
application. Robert Lazar submitted that there may be grounds for recusal in
respect of Tan Sri Haidar’s involvement in the Perdana Foundation but this would
depend on the extent of interaction of the co–trustees. The mere fact that he
was a trustee of the foundation may not on its own be a sufficient ground for
recusal. Rober Lazar declined to support the application for recusal on the
grounds of Tan Sri Haidar and Tan Sri Steve Shim’s involvement in the case of
Raphael Pura. In respect of the mention of Tan Sri Steve Shim’s name in the
video clip, Robert submitted that this may place Tan Sri Steve Shim in a
position of embarrassment depending on the evidence that will be led during the
proceedings. The Malaysian Bar declined to support the application against Puan
Sri Zaitun.
On behalf of the 3 NGOs, Azhar Azizan Harun took a similar position as that of
the Malaysian Bar.
Counsel for Tun Dzaiddin and Loh Mui Fah took a neutral position whereas counsel
for the remaining parties did not support the application.
At 11.50 a.m., the members of the Commission adjourned the proceedings for close
to 30 minutes to deliberate on the application for recusal. When they returned,
Tan Sri Haidar informed counsel that there will be no closed door hearing and
that if he wished to pursue his application, it would have to be done in public.
Puravalen proceeded to submit on law relating to bias. When queried by Tan Sri
Steve Shim about whether there were any authorities on the recusal of a member
of a Commission of Inquiry as opposed to a judge, Puravalen responded that the
same principles ought to apply.
Robert Lazar then addressed the Commission, indicating that a higher standard of
the bias test ought to be applied in respect of Commissions as opposed to
Courts. This is because unlike judges who are bound by strict rules of procedure
and law, Commissioners have significant powers to control the proceedings.
Datuk Shankar asked counsel to clarify two issues. Firstly, whether or not it
was for the individual members being challenged to decide whether or not they
should recuse themselves and secondly, on whether any form of appeal was
possible in the event persons concerned were dissatisfied with that member’s
decision.
Robert Lazar agreed that it was for the individual member to decide. With
respect to the 2nd issue, he did not rule out the possibility that a challenge
to the member’s decision may lie by way of judicial review.
The Commission adjourned proceedings to 2.30 p.m. to consider the application.
Malaysian Bar President, Ambiga Sreenevasan and counsel for
the Malaysian Bar, Robert Lazar, Yeo Yang Poh, Christopher Leong, Ranjit Singh
and Razlan Hadri arriving at the courtroom.