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Sunday, September 30, 2007

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.



Anonymous said...

people like you represent our eternal hope for a brighter and cherished future. You are forever hopeful. I am not. Tell you what. Let me guess how the independent panel will decide at the end of the day. They will say this:

"There is no evidence offered to suggest the video clip is authentic. The person who recorded it has failed to present himself. The person featured in it has also failed to show up. We have no powers to summon witnesses. So it is unamnimously agreed that the video clip is not authenthic."

Time and time again we the citizens get buggered. But we get what we deserve. In the next election, I'll bet with you the present government will be returned to power and it matters not if the majority is reduced.

Mr. Smith said...

In all probability the panel has already been told what 'government friendly decision' to arrive at.
It could be thus
"In the absence of credible witnesses and corroborative evidence, the panel is unable to arrive at any conclusive verdict as to the authenticity of the tape.
"As such, we the three government appointed stooges, conclude that the tape, can be said to be a fake."
Case closed.
The judiciary is raped.
The charade continues.

Malik Imtiaz Sarwar said...

Mr Smith,

I consider Datuk Mahadev Shankar a friend. He is a man of principle.

Having said that, I too share concerns about what the Government game plan is. The Panel is a convenient method of distracting and diffusing. If this is in fact its agenda, it would be regrettable to see principles persons like Datuk Shankar used as pawns to lend credibility to the scheme.


Anonymous said...


Tell them just to form The Royal Circus.....easier for everybody and anybody can understand it.

Unknown said...

i am pessimistic that anything positive will come out from the Panel after reading from other blogs pertain the close association of both Tan Sri Haidar and Tan Sri Lee Lam Thye to the BN government.

And I have signed the petition, btw.

anyway, is the Bar council or NGO or any common rakyat has the right to dispute the findings (whichever way the findings go) in a court of law?

Anonymous said...

If the CJ and the others implicated truly consider themselves to be innocent, they would have been the first ones to call for an independent royal commission to clear their names. Their indifference to this call is very telling.

Anonymous said...

Accountability, transparency and adherence to Rules and Regulations has been poor as far as the government is concerned. This is a point related to the Tape as well.

What are in existing for the rightful handling of the said matter are Bar Council, when regarding the Solicitors; AG, when regarding Judges; ACA and Police, especially when the matter had been handed to ACA and the Police. Each has to do their job to show these parties are still "Competent" to hold their duties.

The "Independent Panel" is not to replace any duty of the above but to see that these four have done their job and to make sure that their reports will be provided to the public to make sure that the Public are not to be ignored!! Since the duty of all these four should not be limited to "Authenticity", any "Independent" panel that limited to Authenticity has void the fundamental target of what should be, even if the 3-man are acceptable.

Therefore, in order to be "independent" even on top of the Government and have the power (or sign of power) to oversee the four or even more, the Royal Commission is the only way.


Personally, I do not see justice been extended in Court as well as Bar Council. Independency and Justice, in my opinion, have been a Luxury in Malaysia, so what can we expect from this case?

Anonymous said...

According to panel member Datuk Mahadev Shankar: "We have no legal power. We have no power to administer an oath. No power to compel witnesses to come to us. We have no power to commit anybody for contempt.

The above already testified the panel will be operated at the vacuum of Law which should be crystal clear to any legal practitioner or a judge. The three "powers" are the basis for any legal investigation to be operated. Therefore, it also declared the "waste" of appointing anyone with legal background and a "Stillbirth" of the investigation.

When AG, Police and ACA were there, did that indicate that three other parties be operated at the same vacuum or the Panel are representing these three as well?

Going through a court case of Mahadev Shankar,
Emko vs Lee Choong Kheng,
in my opinion, the attitude of not compelling for evidence and not taking the key and fundamental principle can be found there, namely:
1. Development Order between MPPJ and the Developer are fundamental when the S&P was in dispute on facilities and responsibility between Developer and MPPJ. But the Court had not compelled the parties to provide for a clear basis for a fair judgment, letting the freedom of evidence to the witness and the parties.
2. The Club and ownership of the Common Area and amenities in the Townhouse determined the amount of Maintenance fee and eligibility of charging. The Club was not there and Emko was not the owner of the land (and so the common area and the amenities) to charge. (When PKNS was the owner of the land).
3. MC should be one for the management to take over the ownership of the Common Area/amenities after it was completed. But, MC had never been established.

Therefore, there was no club to qualify the charge and no ownership for Emko to charge or a MC (to get hold of the Common area/amenities) to charge. So, why the Townhouse had to continue paying the maintenance fee?

The basic for the land to be approved for sub-dividing should be when the road in the Townhouse were surrendered. Therefore, how can the road be subjected under the maintenance of the Developer when the Townhouse was subdivided?

This case had at least put the Townhouse into continue bullies by MPPJ/MPSJ and the Developer since 1988/89
until today!!


-Should BAR be waiting for the outcome of the Panel before calling an EGM?
-Should it be time for lawyers to press the BAR for the Royal Commission?

Anonymous said...

Shankar's post-meeting press conference yesterday confrims everyone's fears. He said and I quote: "Be bold to come forward.......but if you don't come don't complain because at the end of the day we will write a report beased on materials that are made available to us".
Mr. Smith may have gome a bit far in casting Shankar and the other 2 panellists as stooges. I beg to differ. It is simple as this: the panel can only decide on the evidence available. Shankar recognised the panel's limitations. I have no trouble saying this panel is independent. But Shankar must have recognised that it is a lame duck panel. And I think by that press conference he has unwittingly called upon the person who recorded that video clip to come forward and do his national duty. I hope that person will be bold and when he does, Shankar will live by the principles you said he has. If that person fails to show, Shankar will still be that principled man because he will say there is no proof of the video's authenticity. Guess who wins?

Malik Imtiaz Sarwar said...

Dear Anon (12.47),

I think you've hit the nail on the head. The press conference confirmed our fears about the Investigative Panel. It is powerless and appears to have been put together more to lend credibility to the assertions by the government that something is being done.

Without sufficient material, the Panel may have to conclude that it cannot concluded as to the authenticity.

Having said that, and despite my own view that a Royal Commission is the only way to go, it is still open to Keadilan to provide material to the Investigative Panel as to the authenticity of the video. There is of course a concern - taught to us by the Irene Fernandez affair - there is no protection/immunity for those who come forward to the Investigative Panel. The Irene Fernandez and Lim Guan Eng prosecutions have shown us that prosecutions and convictions of whistle-blowers may happen.

We must push on. Judging from People's Parliament, there is a need for more support for the petition. Each of us who have signed should now go out and get 3 or 4 more signatures.