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.
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
- 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.
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.