The decision of the independent three–man panel to sit in session on Oct 29 –
the opening day of the 14th Malaysian Law Conference – seems to be intriguing.
Is the panel trying to avoid meeting the Bar Council when it is public knowledge
that the Prime Minister will deliver the keynote address at the Malaysian Law
Conference witnessed by the entire Bar Council leadership? Only the Immaculate
Misconception will never know that all Bar Councillors will be busy on such a
red–letter day for the Bar.
The avoidance view is reinforced when it is known that the Bar Council had
written to the panel on Oct 8 seeking a meeting on Oct 10. On that exact date,
the panel replied, requesting a list of the issues to be discussed. Two days
later, the Bar Council sent the list. It is unclear if the panel has responded.
What is the point of the panel stating publicly that it would meet all
interested parties on Oct 29 then when by its very overture so far, it prefers
to perform a solo dance? Is that a typical ajak–ajak ayam (an invitation
not intended)?
The decision also appears to be a display of arrogance mounted on stilts
standing in quick sand, and tantamounts to turning a simple job into a complex
operation.
I had written earlier of danger: the discourse of the Malaysian Bar for a Royal
Commission of Inquiry (RCI) into the video clip and a Judicial Commission for
the appointment and promotion of Judges may well be captured.
The video clip, since called the Lingam Tape Scandal, first penetrated the
public pale on Sept 19 and showed veteran lawyer discussing Judge and
case–fixing with a senior Judge, now popularly believed to be incumbent Chief
Justice Tun Ahmad Fairuz bin Sheikh Abdul Halim.
Since then, calls have mounted for the resignation of Tun Fairuz who has so far
denied through Minister in the Prime Minister’s Department, Datuk Seri Mohamed
Nazri Abdul Aziz. Amidst undermining the Doctrine of the Separation of Powers in
our democracy, Nazri, as a member of the Executive, has since repeated the
denial of this top officer of the Judiciary – even in Parliament.
Lingam has since gone into Plato’s metaphorical cave where silence seems to be
the ultimate form of communication among the esoteric. No threat of defamation
is heard from this lawyer who is widely known to specialise in the law of
defamation.
When the video clip first surfaced, the Malaysian Bar, through the Bar Council,
had responded immediately by calling for a Royal Commission of Inquiry, a call
which certain Cabinet Ministers, including Nazri, immediately shot down in a
mounting war of words over the next few days.
The verbal exchange resulted in an escalation when the Bar Council was virtually
forced at its emergency session on Sept 22 to call for a “Walk for Justice” on
Sept 26.
On Sept 25, the very eve of the “Walk for Justice,” Deputy Prime Minister Datuk
Seri Najib bin Tun Abdul Razak announced the formation of an independent panel
chaired by former High Court of Malaya Chief Judge Tan Sri Haidar Mohamad Noor.
The two other members are former Court of Appeal Judge Datuk Mahadev Shanker and
“social activist” Tan Sri Lee Lam Thye.
Analysts see the timing of the announcement of the panel’s formation as an
attempt to pre–empt the “Walk for Justice” which nevertheless resulted in an
unprecedented number of 2,000 lawyers of all races from the young to the very
old walking the 3.5km distance from the Palace of Justice to the Prime
Minister’s Office in Putrajaya despite the Courts all over West Malaysia holding
their normal sessions.
No power
Lawyers taking part in the “Walk for Justice” knew that besides other
weaknesses, the independent panel had no powers to compel and protect witnesses.
They were told that the Bar Council was still prepared to work with the panel
whose job is confined to just verifying the authenticity of the Lingam Video
Tape.
Indeed, on Oct 8, the Bar Council wrote a letter to the panel seeking a meeting
on Oct 10, on which very day the panel replied asking for a list of issues to be
discussed. The Bar Council replied on Oct 12, and so far it remains unclear
whether any response has been received.
Now comes the intriguing announcement that the panel will be sitting on Oct 29.
Oct 29 is known by almost every lawyer worth his or her salt to be the very
first day of the 14th Malaysian Law Conference that will be opened by Sultan of
Perak and none other than Prime Minister Datuk Seri Abdullah Ahmad Badawi will
deliver the keynote address.
The entire Bar Council leadership is expected to attend the opening of the
conference that is expected to attract the participation of between 400 and 500
lawyers. So what is intriguing about the panel’s sitting on Oct 29 is probably
its reluctance to allow the Bar Council to have any inputs in its proceedings.
Of course, there is no stopping other analysts from suggesting that the decision
seems to be a display of arrogance mounted on stilts standing in quick sand.
Indeed, one analyst threw several rhetorical questions: “Isn’t it clear that
they want to exclude the Bar Council? Doesn’t setting pre–conditions and all the
subsequent silence show that they are erecting barriers which are not even
necessary? And now, picking this absurd date! Isn’t that arrogance?
“What is comical about this stance is that they forget that they were appointed
on the eve of the ‘Walk for Justice’ to pre–empt that event. Here’s where the
stilts are: The panel’s very pedigree is suspect. Instead of opting to protect
and enhance the panel’s legitimacy by inviting participation, they obstruct it,”
the analyst added.
Another analyst embellished the “quick sand” part of the statement by stating
that the panel’s very independence should be beyond reproach. “What they are
doing is very political, not at all independent; it tantamounts to turning a
simple job into a complex operation. I guess Malaysian politicians have come a
long, long way from the simple kampung (village) approach; we are now into twin
towers!”
My take on the Lingam Tape is still to climb on my hobby horse of preventing the
capture of the Malaysian Bar’s discourse on the video clip and the Judicial
Commission. Just look at how they stretch things, even time. The panel
interpreted their initial one–month deadline as a 30–working–day deadline!
I would have thought that in the normal scheme of things, one month from Sept 25
means one calendar month ending on Oct 24. But no, now the one month, if the
panel’s ruling is right, is 30 working days.
“Nice try,” would have been the instantaneous response of St Peter if and when I
try indulging in such an interpretation at the Pearly Gates. But then, two of
them are former top Malaysian Judges and none of the merely human trio bears any
resemblance to the biblical divinity of St Peter.
Malaysian lawyers must continue singing the Thomas Jefferson song that “Eternal
vigilance is the price of liberty.” Better still: etch “EV” in our individual
mind. Forget about ET, that extra–territorial whatever. Just etch “EV.”
Meanwhile, help yourself with the rough time–line that I have compiled in honour
of the “great work” of the current Bar Council led by our President, Ambiga
Sreenevasan.
Don’t forget: The saga continues.
Time–line on the Lingam video clip expose
Sept. 19: Parti Keadilan Rakyat (PKR)’s adviser Datuk Seri Anwar Ibrahim
releases video clip depicting a conversation, allegedly between senior lawyer
V.K. Lingam and a Judge, on the fixing of judicial appointments.
Sept 20: Calls mount for Chief Justice Ahmad Fairuz Sheikh Abdul Halim to
resign. Penang–based Aliran is among the first in the field to voice such a
call.
Sept 21: PM Datuk Seri Abdullah Badawi says he is disappointed by the video
clip’s release. "I have received a copy (and the transcript of the conversation)
from the police. I have also viewed the recording.”
Sept 21: Malaysian Opposition Leader Lim Kit Siang cited several reasons in a
statement to support his being convinced that Lingam was chatting with Fairuz in
the latest video scandal to rock the nation.
Sept 21: A two–paragraph fax from Fairuz’s special assistant, Arleen Ramly,
reached Malaysiakini office at 4:55pm with a simple sentence – “He has no
comments”.
Sept 21: Deputy Prime Minister Datuk Seri Najib Abdul Razak said the government
will first confirm the authenticity of the Lingam video before deciding on the
next course of action.
Sept 21: A–G Tan Sri Abdul Gani Patail says no criminal offence appears to have
been committed in the Lingam video clip, but he was "getting further opinion on
[it] and studying other information in the clip."
Sept 21: Kit Siang immediately queries Gani's “outrageous comments” of Lingam
Tape as “a monologue that discloses no criminal offence.” Lim says the comments
raise important questions of Gani’s understanding of and commitment to judicial
independence, integrity and accountability as well as his fitness to continue as
A–G.
Sept 22: The Bar Council, in an emergency meeting today, unanimously decided to
submit a memorandum to the PM and the Cabinet next Wednesday, Sept 26 for the
setting up of a Royal Commission of Inquiry (RCI) to investigate the video clip.
The Bar Council also decided to convene a Malaysian Bar extraordinary general
meeting (EGM) at 3pm on Saturday, Oct 6 at the Legend Hotel.
Sept 22: Deputy Internal Security Minister Datuk Fu Ah Kiow asked all parties to
refrain from speculating on the video clip. He said it was unwise to make
assumptions or draw conclusions without solid evidence.
Sept 23: Bar Council president Ambiga says it is time for the Malaysian Bar to
act decisively.
Sept 23: Gerakan president–designate Tan Sri Dr Koh Tsu Koon calls for immediate
action to address concerns on the country's judiciary system.
Sept 23: Minister in the PM’s Department Datuk Seri Mohamed Nazri Abdul Aziz
said Fairuz has contacted him and has denied that he was the one contacted by
the lawyer featured in the video clip.
Sept 24: The Bar stands up for justice, says Ambiga in a statement.
Sept 24: Nazri said he issued a denial on behalf of Fairuz in relation to the
Lingam tape revelations because “I am his Minister.”
Sept 24: Fairuz’s denial has zero value, says Kit Siang.
Sept. 25: Najib announces the setting up of a three–man independent panel to
verify the authenticity of the Lingam video clip. The panel, chaired by Tan Sri
Haidar Mohamad Noor, comprises Datuk Mahadev Shanker and Tan Sri Lee Lam Thye.
Sept. 25: Popular Malaysian news portal Malaysiakini’s editor–in–chief Steven
Gan asks in a leader whether we would miss the boat again.
Sept 25: Nazri says no need for lawyers to march to PM’s office.
Sept 26: A peaceful 30–minute “Walk for Justice” organised by the Bar Council
ends with the submission of a memorandum calling for a RCI to stem the slide in
the judiciary to a PM's Department official. The four–member Bar Council
delegation submitted another memorandum calling for a Judicial Commission. The
PM is in New York. Having earlier defied a Police order not to march, some 1,500
lawyers waited patiently outside for their representatives to hand over the
memorandum, braving heavy rain which started about 12.45pm.
The protesters – most of them lawyers – had chanted "We want justice" as they
marched, holding placards stating "Judiciary has gone to the dogs" and
"Judiciary has gone (down) the drain".
Among other memorable things Malaysian Bar president Ambiga Sreenevasan said
before the walk, the most memorable was her one–liner that “when lawyers walk,
something is wrong.”
Sept 26: Nazri ticks off lawyers who took part in the walk, asking them to join
Opposition parties. Nazri even asked the Bar Council to register as an
Opposition party.
Sept 27: Nazri said the lawyers' march was "unbecoming" given that the video
clip’s authenticity had yet to be determined. He also shot down the Bar
Council's memorandum to the PM asking for a Judicial Commission. "There's no
need for such a commission as there is no crisis in our judiciary," he said.
Sept 28: Information Minister Datuk Seri Zainuddin Maidin told the Bar Council
to rid itself of political influence so as to remain a professional body. The
Bar Council should act professionally to be respected and should not allow
itself to be used by certain individuals for their own political interest.
Sept 28: Bar Council vice–president Ragunath Kesavan said the EGM slated for Oct
6 to discuss the status of the judiciary following the Lingam video clip expose
has been postponed until after the panel’s findings. This is in line with
Ambiga’s pledge at the “Walk for Justice” that the Bar Council would allow the
panel to do its work.
Sept 29: Kit Siang calls for the dissolution of the three–man panel and the
setting up of the RCI.
Sept 29: Bar Council must be professional, says Zam.
Sept 30: The Sunday Star features three illustrious former Court of
Appeal Judges sharing their views on the current state of the judiciary amid
calls for an independent Judicial Commission. On the Judicial Commission, Datuk
V.C. George hopes there will be one to “ensure an independent, incorruptible,
and competent judiciary,” Datuk K.C. Vohrah, who is Suhakam Commissioner, says
“Definitely. After Suhakam's forum on the right to an expeditious and fair trial
in 2005, we called for a commission in our report, saying the competency of
judges had a bearing on the efficiency of the judicial system,” and Datuk Shaik
Daud Ismail said it would be “a good start.”
Sept 30: Public Accounts Committee chairman Datuk Shahrir Abdul Samad says the
Bar Council should avoid being used as a tool by certain parties in the Lingam
tape issue. The MP for Johor Baharu hopes the “march” by 2,000 lawyers will not
spread to other things.
Oct 1: Ex–MP Wee Choo Keong says he plans to challenge a 1995 Election Court’s
decision that resulted in him losing his seat. His decision follows the Lingam
tape expose.
Oct 1: K. Ragunath refutes Datuk Shahrir’s remark that certain political parties
could be using the Bar Council on the Lingam tape scandal. He said the Bar
Council has never been political in any situation. “But if (our decision) to
disagree with the government is considered political, then so be it. We’re
standing for what is right,” he asserted. “Our walk was for justice, not
politics.”
Oct 1: Roger Tan, quoting Ambiga that “Lawyers don't walk every day. They don't
walk every month. They don't even walk every year. This is the third time
lawyers are walking,” justified in a NST article that the walk was “a
sacred duty” for lawyers and warned: “Woe betide the day an individual or a body
of persons is capable of controlling the head of the judiciary and the head of
the Bar.”
Oct 2: Kit Siang says he will move a substantive motion of no confidence in
Fairuz as CJ when Parliament reconvenes on Oct. 22 if the PM and the Cabinet
evade their national duty tomorrow to restore national and international
confidence in the independence and integrity of Malaysia’s judiciary and set up
a RCI.
Oct 2: Panel chairman Tan Sri Haidar says it has no power to compel witnesses to
testify or protect them.
Oct 4: ACA compels PKR vice–president Sivarasa Rasiah and PKR adviser Anwar’s
political coordinator Sim Tze Tzin to reveal the Lingam tape source, or face
action under the Anti–Corruption Act 1997. Both were served with a notice to
comply within a week under s.22(1)(c) of the Act in the ACA office or face two
years jail, a fine of RM10,000 or both.
Oct 4: Kit Siang says in a statement that for the sake of Malaysia, Haidar,
Mahadev and Lam Thye must return their appointment letters to Najib and ask for
the establishment of a RCI into the Lingam Tape, the allegations of fixing of
judicial appointments and Court decisions and the 19–year rot in the judiciary
Oct 5: PKR president Dr Wan Azizah Wan Ismail, in light of the ACA move against
the two party workers, says: “The ACA should be after the offenders in the
videotape, and not the messengers or the whistleblowers. Unfortunately, this
latest action allows the ACA to be perceived as yet another tool of the
government, protecting the corrupt instead of corruption victims.”
Oct 6: Gerakan president Tan Sri Koh Tsu Koon asks the Government to consider
setting up a RCI.
Oct 6: Ambiga says panel’s admission of lack of powers confirms the need for the
RCI.
Oct 6: V.K. Lingam gives statement to ACA. Haidar urges anyone with evidence to
come forward via the panel’s secretariat.
Oct. 7: PM Abdullah Ahmad Badawi promises thorough investigation on video clip.
Oct 7: Three main Bar Council office–bearers Ambiga, Ragunath and secretary Lim
Chee Wee called by Putrajaya police to explain Walk for Justice.
Oct 8: Nazri says video clip source shall be guaranteed full protection under
the Witness Protection Act (WPA). “Without their co–operation, how can we attest
to the recording’s authenticity?” he asked.
Oct 8: Ambiga says the WPA does not exist. Her statement is echoed by ex–UN
special rapporteur on judicial independence Datuk Param Cumaraswamy. Wan Azizah
says she is mystified when Nazri made the statement as Parliament’s legal
division has confirmed that no such Bill had been tabled.
Oct 8: Ambiga calls for top judicial post to be filled in view of Fairuz’s
retirement on Oct 31. Next in line is CoA president Datuk Abdul Hamid Mohamed,
65, who assumed the position on Sept 5.
Oct 8: Bar Council writes to panel seeking meeting on Oct. 10
Oct 10: After a regular Cabinet meeting, Nazri says the Government cannot yet
provide an assurance of absolute immunity to the two whistleblowers in the
Lingam tape scandal, if they decide to come forward.
Oct 10: Panel, in reply to Bar Council letter requesting for a meeting on Oct
10, requests Bar Council for list of issues to be discussed.
Oct 11: Nazri labels lawyers who took part in “Walk for Justice” crazy.
Oct 11: Suhakam expresses concern with media reports that the Police have
summoned some Bar Council officials in connection with the “Walk for Justice.”
Oct 12: Bar Council replies to panel, listing down issues to be discussed with
panel.
Oct 14: Ambiga tells Nazri to focus on message, not lawyers.
Oct 17: Nazri says King must act on PM’s advice on extension of Fairuz as CJ.
Council of Rulers to meet for two days from Oct. 31
Oct 17: Ambiga says interest of Judiciary best served if Fairuz is not given
extension.
Oct 18: Bar Council announces that panel, on Oct 8, has set pre–conditions on
issues to be discussed before meeting it. It has replied on Oct 10, but has yet
to receive any response.
Oct 18: Malaysiakini learns of two months’ extension for Fairuz after Oct 31.
Oct 18: Kuala Lumpur High Court Judge Mohd Hishamudin Mohd Yunus in a landmark
decision rules for ex–ISA detainee Abdul Malek Hussin, 51 and awards him RM2.5
million in damages against the Government over his arrest and torture at the
height of the reformasi demonstrations in 1998.
Oct 19: ACA to send video clip to Hong Kong experts for verification of
authenticity.
Oct 20: Disciplinary Board chairman Tan Sri Khalid Ahmad Sulaiman says a Bar
Council complaint against lawyer Datuk V.K. Lingam for alleged professional
misconduct would take its normal course.
Oct 20: Kit Siang calls for “immediate resignation” of Fairuz who he described
as “unfit for the job.”
Oct 20: Malaysia Democratic Party secretary–general Wee Choo Keong asks Suhakam
to probe Lingam video clip allegedly discussing judicial appointments with a
senior judge. Wee files a complaint with Suhakam on the grounds that his right
to a fair trial in a 1995 election petition had been infringed as evidenced in
the Lingam clip. He says Suhakam and a royal commission would have similar
investigative powers and adequate protection for witnesses.
Oct 21: Khalid Ahmad told the New Sunday Times of an “alarming trend”: 92
lawyers were struck off the rolls over the last five years for serious
professional misconduct. This includes embezzling the money of their clients.
Another 103 lawyers were suspended during the same period. The Advocates and
Solicitors' Disciplinary Board had also fined 1,295 lawyers during that period
while 18 others were reprimanded.
Oct 21: Sunday Star carries a feature on the Bar Council and its history.
Included in the feature were Ambiga, former Bar Council president Haji Sulaiman
Abdullah (who served from 2000–2001), immediate past president, Yeo Yang Poh,
Bar Councillors Roger Tan and Edmund Bon as well as Nazri.
Oct 21: Tan Sri Haniff Omar, in his Point of View column in The Star,
alludes to “four rules of interpretation: the literal, golden, mischief and
purposive rules.” The former IGP then says “only the literal or purposive rule
seems applicable” to sustain the view “the extension of the CJ’s tenure of
office is clearly the sole prerogative of the Yang di–Pertuan Agong.”
Oct 21: Fu Ah Kiow says the landmark decision by a High Court to award RM2.5mil
in damages to an ex–ISA detainee shows the judiciary is indeed “independent.”
Oct 21: Bar Council trio to give statements to the Police at Bar Council
Secretariat at 3.30pm tomorrow.
Oct 23: Nazri tells Parliament Fairuz never proposed that Common Law system be
replaced by Islamic Law.
Oct 23: In Parliament, veteran lawyer Karpal Singh urges Fairuz and Lingam to
deny link to Lingam tape, repeats his allegation first made at a 1999
Commonwealth Law Conference that Lingam wrote part of Mokhtar Sidin judgment in
a civil suit which corporate tycoon Tan Sri Vincent Tan had taken against the
late journalist MGG Pillai.
Oct 23: Three–man team from Putrajaya district police CID – Chief Insp Saunders
a/k Henry Xavier Jamut, Insp Mohd Safuan Alias and Insp Wooi Shien Shin – on a
probe into the Sept 26 “Walk for Justice” leaves Bar Council Secretariat empty
handed.