The Lingam Video: Why A Royal Commission Is The ONLY Way To Go

With so much being said about the video, it is important that we understand why civil society is demanding a Royal Commission.

Investigative Powers

I have written about Royal Commissions (see here). The analysis stands. It would be useful to remind ourselves that a Royal Commission has powers conferred on it by law to take all necessary fact finding steps in order to achieve its purpose. This is important as the Commission would have to otherwise depend on the largesse of parties concerned.

This is an important consideration. The special Investigative Panel has no powers in law to compel the surrendering of documents, the attendance of witnesses and so on.

With raises an interesting question. If the Panel has no investigative powers, then why is the Government insistent on adopting this course of action instead of putting in place a fully empowered Royal Commission. The answer may lie in a consideration of the mandate of the Investigative Panel.

The Mandate

As was confirmed by the Chairman of the Investigative Panel, Tan Sri Haidar, the mandate of the Investigative Panel is ONLY to determine whether the video is authentic (see Malaysiakini report, ‘Is the video authentic? That’s the panel’s ONLY job’).

This is curious for two reasons. Firstly, there is the question of the expertise of the members of the Investigating Panel. It would appear that the question of authenticity is a technical one. We must note that authenticity of video is to be distinguished from the authenticity of the events depicted in the conversation i.e. whether the conversation did take place. It is uncertain whether the Investigative Panel is mandated to look into this aspect as well. Judging from media reports, this does not appear to be the case.

Secondly, to limit the mandate of the Investigative Panel to only determining authenticity appears to be a pre-judgment of the video NOT being authentic. This is because if it were authentic, the implications and ramifications are tremendous and very grave. The Government does not appear to be too concerned with the possibility for were it so, the mandate would have been broader and more all encompassing.

Implications And Ramifications

It would be useful to consider what these are. These include the following:

• At the time of the recording of the video, external parties i.e. other than those constitutionally provided for, were involved in the process of appointment and promotion of judges;
  

• At the time of the recording of the video, the appointment and promotion of judges on the basis of ‘allegiance’, ‘predisposition’ and ‘partisanship’ rather than on competence and independence;
  

• The complicity of the Government in such appointments and promotions;
  

• The possibility of such external interference still occurring and having been made the basis of subsequent appointments and promotions;
  

• The effect of such external interference on decisions in cases before the courts, especially those involving the parties implicated by the video; and
  

• The indirect effect on the culture of the judiciary with regard to the decision making process i.e. the condoning of such interference by the Government being a signal that judges were, and are, free to decide cases on other than a merits basis

The foregoing becomes even more significant when one has regard to the fact that the Chief Justice, Tun Fairuz, has held the position of Chief Judge Malaya, President, Court of Appeal and Chief Justice since the alleged recording of the video. Furthermore, with the much complained delay in appointing the Chief Judge Malaya and President, Court of Appeal with the retirement of Tan Sri Siti Normah and the demise of the late Tan Sri Malik Ahmad, Tun Fairuz was in effect coordinating the activities of all the courts, at all levels. This in turn raises questions about whether:

• External considerations have been involved in how panels of the Court of Appeal (which usually sits in panels of three judges) and the Federal Court (panels of three or five judges) were selected; and
  

• External considerations have been involved in how appeals were scheduled for hearing and which panels they were scheduled before.

If in fact the video is authentic, and Keadilan has indicated that it is, the tentacles have reached deep into the heart of the administration of justice. They still hold it in their grasp.

It is for this reason that a suitably empowered AND independent Enquiry Panel is crucial to ensure that the truth is revealed.

Semblance Of Independence

It is not sufficient that the matter is investigated independently. It is crucial that the investigative process is seen to be investigated independently. There are several dimensions to this:

The Investigative Panel is appointed by the Government. The Government is implicated and CANNOT be involved in the investigation. It is not enough that the Government declares that the Investigative Panel will be left to do what it has to do. The mere fact of an association with the Government already undermines the process. The aim is to restore public confidence in the Judiciary. The public will not be confident if the Government is involved. A Royal Commission is sufficiently independent of the Government for this purpose

The members of the Investigative Panel must also not be seen to be connected with the Government or any of the parties seeming involved in the matters arising from the video. Both Tan Sri Haidar and Tan Sri Lee Lam Thye are in one way or the other associated with the Government or Tun Mahathir (who has also been implicated by the video). This is not to question their integrity but rather to point to th distinct possibility of their decisions being questioned one way or the other.

The Appropriate Mandate

For the reasons set out above, only a Royal Commission would suffice. Additionally, the mandate of the Royal Commission must address the question of the authenticity of the video AND the implications and ramifications.

The People’s Parliament Petition

The Petition to the DYMM Yang Dipertuan Agong by the People’s Parliament has been structured to address the matters discussed. It is imperative that the Petition be supported. Please sign up if you have not done so already. Every signature counts.

MIS

Petition For Royal Commission: The People's Parliament

The People's Parliament has launced a petition rakyat to the DYMM Yang Dipertuan Agong for the establishment of a Royal Commission. Haris Ibrahim writes:

The People’s Appeal To His Majesty The Yang DiPertuan Agung

On 19/9/2007, the nation was rocked by another scandal, this time in the form of a video clip which exposed what appears to be a telephone conversation between senior lawyer VK Lingam and another person, allegedly fixing the appointment of ‘friendly’ senior judges.

A careful study of the monologue presented in the video clip leaves a very clear impression that the telephone conversation is indeed between VK Lingam and the present CJ, Tun Ahmad Fairuz Sheikh Abdul Halim and relates to the appointment and promotion of judges. Other judges are also named in the course of the conversation.

That Tun Ahmad Fairuz had, subsequent to the release of the video clip, first responded that he would need to first view the video clip before saying anything, then issuing a ‘no comment’ response and only lately and that too through a third party making a bare denial of being a party to the conversation leaves us, the rakyat with a sense that Tun Ahmad Fairuz has not responded with complete candour on this matter.

This scandal now casts serious doubts on the suitability of Tun Ahmad Fairuz to head the judiciary as well as on the propriety of the appointments and promotions, made on the recommendation of Tun Ahmad Fairuz, of several judges of the High Courts, the Court of Appeal and the Federal Court.

We, the rakyat, no longer have any confidence whatsoever in the judiciary.

We, the rakyat have noted for some time that some very senior judges have been constantly overlooked in the numerous promotion exercises that have proceeded during the tenure of Tun Ahmad Fairuz, with junior judges being preferred.

We the rakyat have also noted that it was recently reported that Their Royal Highnesses acting through the Conference of Rulers rejected two nominations by Tun Fairuz for the position of President of the Court of Appeal and the Chief Judge of Malaya although these positions had been vacant for a long time. It is rumoured that those nominated by Tun Fairuz were junior in comparison with many other more senior serving judges.

We, the rakyat, have further noted that there is at least one judge promoted to the Federal Court who, it is reported, has failed to deliver written judgments in up to as many as 35 cases, with the result that appeals by many who have been convicted of offences and are in prison are unable to have their appeals heard.

This most recent scandal also raises again real concerns about the sudden change of the trial judge in an ongoing murder trial in Shah Alam.

We, the rakyat, are also gravely concerned about the recent decisions in several high-profile cases and whether these were ‘fixed’ by Tun Ahmad Fairuz and, if so, the implications it has in relation to the other judges of our superior courts.

The reaction of the Prime Minister, other members of his cabinet and the Attorney-General to the matter of this video clip give us, the rakyat, no reason at all to believe that this scandal will be honestly investigated so that the truth of the matter will never be known.

We, the rakyat, do not believe that the Prime Minister and his present government are committed to getting to the bottom of this scandal and, if ascertained to be the truth, to take all necessary steps to restore the judiciary as a constitutional institution emplaced to independently defend the constitution, the rights of the rakyat, and to uphold the rule of law.

In this regard, the announcement on 25/6/2007 by the Deputy Prime Minister of a 3-man panel to be headed by one who was implicated in the sacking of Tun Salleh Abas in 1988 to now investigate this scandal fortifies our belief that the present government is determined that the truth in relation to this scandal never becomes known.

We, the rakyat, are gravely concerned that if this scandal is left to be investigated by the administration of the Prime Minister, the police or the Anti-Corruption Agency, the rakyat will only witness another cover-up, leaving us, the rakyat without any recourse to justice, ever suspicious whether the judiciary is to protect the rakyat or the interests of a chosen few.

This most recent scandal raises concerns whether the corruption that has become so prevalent in the management of this country has now also made its way into the judiciary.

For these many reasons, we, the rakyat, now pray that Your Majesty may be so moved and in the exercise of the full powers conferred on Your Majesty ... [read more here]

Sign the petition by sending an e-mail with your name to savethejudiciary@gmail.com. Show your commitment to the nation by providing your full name and NRIC number. We must seize this opportunity to begin the process of change.

MIS