Sun (Used by permission)
by R. Surenthira Kumar
KUALA LUMPUR (Jan 22, 2008): The Royal Commission set up to
probe the video clip showing a senior lawyer brokering the appointment of judges
will decide on Thursday (Jan 24) whether it will delve into other aspects,
besides the "fixing" of the judges’ appointment.
The Commission was urged by several lawyers to probe into the other issues which had cropped up in the course of the hearing, particularly in relation to:
• the "fixing" of decisions, as found in the transcript of the video clip recording; and
• the extent of the relationship between the person speaking
on the phone in the video clip and former Chief Justice Tun Mohamed Eusoff Chin.
The Commission would also rule on Thursday whether more questions related to Datuk V.K.Lingam’s trip to New Zealand in 1999 would be allowed.
Malaysian Bar’s representative Robert Lazar submitted the Commission cannot be limited on its duties by sticking to the terms of the reference strictly, as it also has to consider other relevant evidence which crop up during the course of the proceedings and decide if the evidence adduced is relevant.
He said in the context of the Commission’s terms of reference applying to the transcript, the question to bear in mind is, "is the fixing of judges the end objective in itself, or is it a means to an end?"
Lazar said the answer is clearly the latter, and the broad ends are mentioned in the transcript;
• on page 7 – "Eusoff Chin and I are extremely close, you know." Lazar said this speaks to the purported close relationship between Lingam and Mohamed Eusoff.
• on page 7 – "Yeah, Eusoff Chin in power, I can straight get
Pom, Pom, Pom, Pom. But now Dzaiddin is there and ... Dzaiddin is attacking our
cases that is why James Kumar (Foong) is aligned to Dzaiddin. But Dzaiddin’s
retiring 15th of September. He’s finished."
Lazar said this suggests the ends that were achieved by such a close relationship in the past and speaks of the intention of the speaker to re–establish access to judges for the possible purposes of influencing cases.
• on page 1 – "Ah, as per our memo, I … discussed with Tun … aa … Tun Eusoff Chin and we sent the same memo to PM."
Lazar said this further exemplifies the above point, that Lingam is able to influence these persons on the appointment of judges.
• on page 2 – "You know this is the same problem Tun Eusoff Chin had ... he ran out of soldiers."
Lazar said this once again suggests that the purpose for influencing the appointment and promotion of judges is to ensure that there are judges placed at the appropriate levels of the judiciary in order to ensure there would be people to do their bidding. Therefore, the video clip does not relate solely to judicial appointments, but also the "fixing" of cases.
Hence, any misbehaviour must relate to the entirety of the contents of the video clip. The implications are not limited to the fixing of judicial appointments but any matter leading to or resulting from the fixing and brokering of judicial appointments.
Lazar said the Commission must take into consideration the evidence first, before deciding if it is admissibile or not, instead of ruling from the outset that it cannot probe into such evidence as it is beyond the ambit of the Commission’s terms of reference.
Lazar also disagreed with Lingam’s lawyer, R.Thayalan’s submission on Monday (Jan 21), that the Commission should not probe into his client’s trip to New Zealand as it was not related to the scope of the Commission’s terms of reference.
He added the questions on the New Zealand holiday are directly relevant because it addresses the following issues:
• the truthfulness of the statement, "are extremely close";
• assists the Commission in determining the identity of the speaker in the video clip; and
• demonstrates the credibility or otherwise of those
witnesses who are said to have been on this holiday.
Lazar also said the powers of the Commission, in relation to the Evidence Act, are far wider than an ordinary court and thus can admit evidence, any evidence which might be inadmissible in a civil or criminal proceeding.
"But it should not be interpreted as a ‘free for all’ move," remarked Commission chairman Tan Sri Haidar Mohamed.
Commission members Datuk Mahadev Shankar said the evidence to be submitted must have some relevance to the proceeding while Tan Sri Steve Shim Lip Kiong said it must relate to the Commission’s terms of reference.
"We cannot put on the blinkers and say the appointment of judges is fixed and the matter ends there," said Lazar , adding that it is important for them to raise this point at this stage of the inquiry.
"We are not allowed to go on a fishing expedition to discover other things. There is a limit," replied Mahadev Shankar.
Shim then asked which part of the transcript relates to the alleged fixing of decisions, and Lazar pointed out the part of the person on the phone claiming "when Mohamed Eusoff was in power he could get ... pom, pom, pom, pom", "Dzaiddin is attacking our cases now", "you suffered so much ... so much you have done. You know, for the election petition, Wee Choo Keong, everything".
Lazar said unless there is evidence to show Lingam’s relationship with Mohamed Eusoff was no longer close, as a result of a row between them, the Commission has to accept the evidence available on the closeness of the relationship between the two men.
Lawyer representing former Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim submitted that the Commission's terms of reference to the object of enquiry, relevancy of any proposed questions may readily be discerned.
"Any answers given by Lingam and Mohamed Eusoff tending to or probative of the ‘closeness’ of their relationship is not also probative of the issue tending to show whether there has been an improper interference with judicial appointments. In this sense, it is completely irrelevant," said Kamarul.
Prior to that, when the proceedings began late afternoon, on its seventh day of inquiry here today, three lawyers appeared on behalf of Mohamed Eusoff.
Zamani Ibrahim, Datuk Hazman Ahmad and Mohd Fauzi Mohd Zin, said they are taking the same stand as Lingam’s lawyer Thayalan, that the issue of the trip to New Zealand is outside the Commission's terms of reference.
Zamani said they would also submit on it on Thursday (Jan 24).
Others to submit on the issue was lawyer Khoo Guan Huat, who represented former Chief Justice Tun Mohamed Dzaiddin Abdullah.
Khoo said his client objected the Commission should take into consideration evidence which fell outside the spectrum of the Commisison’s terms of reference.
Azhar Azizan Harun, who represented several human rights NGOs, Suaram, Aliran and Hakam, said the Commission should weigh the question of admissibility of the other available evidences in the interest of public welfare as it involved the question of independence of the judiciary.
Mahadev Shankar said the Commission was not with him on the point.
Co–counsel for Lingam’s brother V.Thirunama Karasu, John Fan referred to the Police Investigations Committee formed in New Wales, Australia, as a guide on the Commission’s authority, but Shim shot down the submission, saying it was of a different mode.
Thirunama Karasu’s other lawyer, Wee Choo Keong enraged the Commission when he too wanted to submit on the issue.
Haidar had to shout to him to sit down, as Wee persisted in submitting despite Shim and Mahadev saying they would consider Wee’s written submission.
"There are many scandalous allegations in your submission, and we do not want it to be ventilated in the press. We don’t want a trial by the media," said Mahadev Shankar.
"Don’t argue please, listen to me! Can you please sit down. We will give you the opportunity to submit," added Haidar.
M.Puravalen, the lawyer representing former Deputy Prime Minister Datuk Seri Anwar Ibrahim, said his client was taking the same position as the Malaysian Bar.
Deputy Public Prosecutors (DPPs) Datuk Nordin Hassan and Datuk Azmi Ariffin, when asked by Haidar whether they had a stand on the matter, gave a written submission to the Commission.
The DPPs’ summarised the evidence sought to be given on the closeness of Lingam and Mohamed Eusoff, could not in any way show the role played by the latter, if any, in the appointment of judges and therefore it does not come within the terms of the Commission’s terms of reference.
Lazar then raised the question of whether the Commission should ask the DPP to submit on the matter, suggesting the Commission should not hear them.
But Haidar said since the DPPs are assisting the Commission, it had a right to seek their assistance on the issue.