Crisis Of Justice Demands Urgency

Perhaps YB Nazri was correct when he observed that there was no judicial crisis. What we are is a crisis of justice that embraces the whole nation. As explained in my post on why the Royal Commission is crucial, if the video is authentic, the implications and ramifications are mind boggling.

A crisis of this nature requires an urgent response. What we have seen however is the complete opposite. There has been no move on the part of the Government to seek that the Chief Justice take a leave of absence. The Investigative Panel is gradually cranking itself up to speed to an end no longer uncertain. In my earlier post, I suggested that there was ambiguity about what determining the authenticity of the tape meant. That has since been cleared up. The chairperson of the Investigating Panel, Tan Sri Haidar is quoted in The Sun today (see 'Probe panel meets tomorrow on damning video-clip') as declaring:

"The meeting will examine how to go about verifying the authenticity of the video (from a technical perspective). Our task is purely confined to that."

What happens after that? Another cabinet meeting, another panel, more time? And what happens in the meanwhile, we pretend that everything is alright? And what if the investigations finally reveal that the concerns of civil society were founded and that justice had been skewed to improper end? Does the Government then expect all of those who are before the Courts now, or who have been before the courts in the period of time in issue, to just shrug and say "let by-gones be by-gones"? There is already talk of litigants going back to court to set aside judgments on the basis of apparent impropriety.

The lack of urgency on the part of the Government is a strong indication of a lack of appreciation of the seriousness of the matters at hand. A more sinister interpretation of this attitude suggests that the Government may not be keen on getting to the truth, or to the truth too quickly. Does the Government not see that a tainted judiciary and the possibility of the uncertainty in the administration of justice is potentially destructive to its own interests, to the extent that those interests are separate and independent from the interests of the rakyat, as much as it to those of the rakyat?

And as for YB Nazri, what can be said has been said eloquently by KJ John in his latest comment for Malaysiakini ('Here's the crisis, Prime Minister!'):

"It is said that, in the country of the blind, the one-eyed is king. How true, but before our so-called law minister believes this to be so, let him be forewarned that more than 2,000 lawyers have already marched to say that they can see with both eyes and that they are not color-blind when it comes of issues of justice."

The Government should start taking this seriously. Lawyers talk of flood-gates. There is a tsunami on the way.

MIS

UPDATE: The Investigative Panel has since confirmed that it does not have any power and will be dependent on individuals voluntarily appearing before the Panel to provide evidence. Datuk Shankar is quoted as saying:

"The panel has got no legal power at all. The only authority that it has been given is these terms of reference and then to compile a report and send it to the appointing body. We have no power to administer oaths, to compel witnesses to come to us [...] We have no immunity under the law either."

This echoes a reiteration of the limited mandate of the Panel by Tan Sri Haidar who is quoted as confirming that the mandate is :

"confined to the authenticity of the video clip because we are not going into the merits of whether (there is any) truth of the content. Our terms of reference is to verify the video clip, stop there. After that is up to the government to decide."

(see Malaysiakini 'Haidar: We have no power' and 'Q&A: Don't throw stones at us')

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

HAKAM Press Statement: The Video Controversy

JUSTICE MUST BE SEEN TO BE DONE

HAKAM supports the call by civil society for the establishment of a Royal Commission of Enquiry to enquire into the video recording of a senior lawyer apparently in telephone conversation with a senior member of the judiciary whom many have formed the view is the current Chief Justice.

If the video recording is genuine and the telephone conversation did in fact take place, the implications are of grave concern, undermining the integrity of the entire judicial system. These implications include:

• Extraneous influence having been brought to bear on the judicial process in so far as the appointment and promotion of judges are concerned;

• The possibility of extraneous influence having been brought to bear on the manner in which cases before the courts have been dealt with;

• The possibility of such or similar extraneous influence or influences still being brought to bear on the judicial process;

• The existence of a system of patronage within the Judiciary and the absence of the requisite separation between the Judiciary and the Executive; and

• The independence of the judiciary and the judicial process being questionable.

HAKAM views with concern the denial by the Honourable Prime Minister, as reported by the media, of a need for a Royal Commission. The Judiciary is one of the three primary organs of the state and is vital to the separation of powers. Continued public confidence in the Judiciary is of paramount importance and it is essential that public confidence be restored. It is indisputable that the video recording has shaken to the core the confidence of the nation in the Judiciary. If left unaddressed in a manner that is meaningful to citizens, will have serious repercussions. A denial of the need for a Royal Commission is a denial of the aspirations of Malaysians for a fair and just society.

It is imperative that the matter be investigated into urgently and with the transparency a Royal Commission will allow for. Justice must not only be done, it must be seen to be done.

HAKAM urges the Chief Justice to himself support the call for an independent and transparent investigation in deference to the need for the semblance of justice. It is further only appropriate that the Chief Justice distance himself from matters at hand by taking a a leave of absence pending the completion of such investigations. A show of humility of this nature will go far to begin the process of restoring confidence.

Malik Imtiaz Sarwar
President, National Human Rights Society
24.09.2007