It's more than just 'judge–fixing': Bar Council tells commission
• Trip evidence could lead to fixing of judicial appointments, says counsel
• Commissioner Haidar loses patience with counsel
• Commission to decide relevancy of holiday
KUALA LUMPUR: Proceedings of the Royal Commission of Inquiry into the V.K. Lingam Video Clip lasted from 3.05pm to 5.05pm today.
Two new set of counsel appeared today – Zamani Ibrahim with Dato’ Hazman Ahmad and Encik Mohamad Fauzi Mohd Zain appeared for Tun Eusoff Chin; and Richard Wee appeared as an observer for LawAsia.
The proceedings today consisted entirely of submissions by various counsel on
the scope of the terms of reference of the Commission of Inquiry, in particular
relating to the admissibility and relevance of Tun Eusoff’s testimony last
We heard submissions of Kamarul Hisham Kamaruddin (for Tun Ahmad Fairuz), Robert Lazar (for Malaysian Bar), Khoo Guan Huat (for Tun Dzaiddin), Azhar Azizan Harun (for Aliran, HAKAM and SUARAM), Alex De Silva (for Loh Gwo Burne), and John Fam co–counsel with Wee Choo Keong, who also spoke (for Thirunama Karasu a/u Vellupillai), M. Puravelan (for Dato’ Seri Anwar Ibrahim).
Kamarul Hisham Kamaruddin submitted that terms of reference have a specific objective of inquiring into the appointment of judges. While the testimony of VK Lingam on Monday may offer proof concerning the closeness of the relationship between VK Lingam and Tun Ahmad Fairuz, Kamarul argued that the testimony is not probative of any issue tending to show whether an inference can be drawn as to the existence of misconduct relevant to the appointment of judges.
Robert Lazar submitted that Malaysian Bar’s position is that the title of the Commission cannot be used to limit its scope of reference because the reference to the video therein was only for identification purposes. Item 3 of the terms of reference indicates that the Commission's scope should include verification of its contents. On the issue of being bound to the Evidence Act, their view is that the Commission’s powers are far wider, even that that of a Court of law.
Furthermore, Lazar argued that the contents of the conversation do not just relate only to the issue of the appointment of judges, but also to fixing of judges and fixing of cases.
Lazar further submitted that unlike R. Thayalan’s free for all argument, the Malaysian Bar was of the view that while the Commission should welcome anyone who wants to give evidence, such evidence must fall within these terms of reference. On this basis, the line of questioning of VK Lingam concerning his closeness to Tun Ahmad Fairuz should be allowed to continue.
Counsel for Tun Eusoff Chin informed the Commission that they will produce written submissions on Friday.
Khoo Guan Huat who is acting for Tun Dzaiddin stated that what his client finds objectionable and misleading is that outside irrelevant evidence is used to exclude the relevance of evidence which falls within the terms of reference.
Then Alex De Silva, acting for Gwo Burne, submitted a legal argument that the Evidence Act, in particular section 114, can be taken into consideration by this Commission in determining whether the evidence of the New Zealand holiday is relevant. Since section 114 provides for drawing of an inference of continuity with regard to natural events and human conduct, De Silva argued that, as the evidence stands, it is natural that evidence of VK Lingam’s closeness to Tun Fairuz in 1994 will be relevant to drawing the inference that, save for any later evidence showing that perhaps VK Lingam and Tun Fairuz may have had a falling out which had jeopardised that relationship, this closeness continued until 2001 as at the time of the video.
Azhar, who acts for Aliran, HAKAM and SUARAM, offered his argument that the Commission must also consider item 2(1)(d) of the terms of reference (public interest), since the public confidence of the judiciary is very much an important consideration. On the Commission’s request, Azhar agreed to prepare written submissions for their consideration.
John acting for Thirunama, referred the Commission to an Australian case concerning their Police Investigation Commission, which the Commission responded would be taken by them as persuasive authority. His co–counsel, Wee upon commencing his submissions, was informed that the Commission had yet to determine which paragraphs of his client’s statement they considered relevant. Wee was informed that once the Commission had made a decision in this respect, they would later on invite his submissions on those limited paragraphs.
Puravalen, representing Dato’ Seri Anwar, argued that the terms of reference cannot be limited to the Commission’s heading and referred the Commission to two cases which the Commission agreed to take into consideration.
Subsequently, R. Thayalan addressed the Court by offering
counter submissions to assist the Court to which Dato’ Mahadev replied would
only be necessary if the Commission so requested. The Commission also invited
the prosecuting officers to give their further views if any, with the purpose of
assisting them in making their decision.
Upon hearing all submissions, the Commission reserved their judgment and adjourned the Inquiry to 10am on Thursday, January 24.