Is The Die Cast?

Though it is not yet possible to conclude what it is that occurred during the last hours of the life of Kugan Ananthan, those few facts with which the public has been acquainted with strongly suggest some measure of culpability on the part of those police offers involved in his interrogation. It is a fact that Kugan died in police custody during an interrogation in which he had been severely beaten. It is also a fact that the Public Prosecutor has classified the death as having been caused by murder for the purposes of investigations and the police officers concerned suspended.

It must however be emphasized that until and unless the police officers concerned are convicted, they are innocent of any crime. Their guilt should not be prejudged. We should also not rush to any conclusions on the racial dimensions of the incident as there is insufficient material available on which we can form any conclusion.

Having said that, questions must be asked. There is an urgent need for Malaysians to understand what it is that occurred and why it happened. We must also be made to understand why it is the police force responded as it did when news of the death surfaced. Questionable reactions on the part of the ranking police officer in charge have regrettably resulted in an uneasy belief that the truth is somehow being avoided.

The context of this latest tragedy cannot be overlooked. The prevalence of sudden deaths in police custody have been a source of concern for some time now. They were one of the main focus areas of the Dzaiddin Commission established in 2003 to look into the operation and management of the Royal Malaysia Police.

It is not insignificant that the Commission found there to have been a worrying level of abuses of power on the part of police officers coupled with a lack of due regard to the civil liberties in the discharge of their duties. It is equally compelling that the Commission implicitly concluded that the self-regulating the current Police Force Commission in effect allows for had allowed this very worrying state of affairs to have come into existence when it strongly recommended the urgent establishment of an Independent Police Complaints and Misconduct Commission (IPCMC).

The stark reality is that sudden deaths such as Kugan’s are unnecessary and could in all probability be avoided if there are sufficient controls in place. The prevalence of abuses of power regrettably points to safeguards being inadequate despite the obvious need for them. It could as such be said that Kugan died at the hands of a system that, through studied indifference, has nurtured an environment in which police officers seemingly feel justified in taking the law into their own hands.

The consistent refusal on the part of the Government to establish the IPCMC despite the obvious need for the external, and life saving, control it would allow for is mystifying. As has been stressed for many years, the number of deaths associated with the police force is uncommonly high. Allowing this state of affairs to perpetuate is only going to foster the impression that extra-judicial killings of the kind more commonly associated with banana republics is a defining feature of this nation. Public confidence will not be shored by yet another high profile case in which police officers are accused of murder.

It is sad to note that the Government’s reluctance seems to be prompted more by a desire to appease the police force rather than a rejection of the merits of the IPCMC recommendation. This appears to be motivated by a need on the part of the Barisan Nasional, and in particular UMNO, to enlist the police force to further its political causes, a process which suits the convenience of the police force as long as it serves its interests. This quid pro quo is to an extent reflected in the Government’s willingness to implement measures recommended by the Dzaiddin Commission, including legislative amendments aimed at protecting due process rights of arrested persons, that have not put it on a collision course with those who control the police force.

In this, it is impossible to ignore the fact that the only real opposition to the IPCMC has come from the police force itself. That this opposition is manifestly self-serving, and such of little credibility, is demonstrated by the conclusions of the Dzaiddin Commission that abuses of power were systemic and took place under a shroud of pervasive corruption that engendered a lack of transparency and accountability. It is for primarily this reason that the IPCMC was recommended.

This is not to say that the Government or the police force condones extra-judicial killing or torture. I do not believe that either institution does. The high incidence of such deaths however gives rise to the question of whether such deaths are perceived as sometimes being necessary incidents of the kind of tough policing efforts that the country is said to require.

Viewed from the perspective defined above, the issue at the heart of the Kugan tragedy is really one of control and regulation. There is absolutely no justification for the abuse or killings of any person by the police. If there are those who think that such conduct is justifiable, then they must be shown otherwise and terminated from service.

That the Government and the police forces itself are respectively incapable of curbing abuses of power, and the incidents of such abuses including sudden deaths in custody, is now beyond doubt. It if were so this latest controversy would not have erupted and we would have seen more decisive action taken over the past five years. External control is as such clearly essential to efforts aimed at reforming the police force. The Government is however opposed to external control for reasons that appear to be primarily shaped by its political perspective, It would not be unreasonable to conclude to that end that the Government views itself as not being in any position to reign in the police.

If so, as shocking as it may be, it would seem that the die is cast and until a new Government is formed Malaysians should accept sudden deaths and other forms of abuses as a part of the Malaysian way of life.

I may have overstated the concern. There is after all one question that remains to be answered by the Government, the one that everything really boils down to all things said and done: Has the Government accepted the risk of such abuses reoccurring as the necessary consequence of a political balance it wishes to maintain? The only way it can show that it has not is to establish the IPCMC; it has every justification to do so now.

(Malaysian Insider; 2nd Feb 2009)

MIS

At Face Value

I was in Perth recently and someone I met asked what I thought Tun Mahathir was up to.

This was shortly after Tun gave testimony at the Royal Commission hearing on the Lingam Video scandal. Tun had, in effect, stated that he had chosen the judges as he, and not necessarily the Chief Justice, thought fit. In doing so, he admitted that he had taken into consideration suggestions made by persons other than the Chief Justice and such suggestions could have come from persons like Tan Sri Vincent Tan. This was quite a staggering admission. It meant that everything the Bar had ever said about the appointment of judges on subjective considerations was true. It meant that the judges who were appointed or promoted were not necessarily the best persons for either.

But then, virtually in the same breath, as part of a continuing campaign against the Abdullah Badawi Administration, Tun Mahathir has leveled charges of diverse nature, from money politics to election rigging to intolerance and an undermining of Malaysia.

I am not surprised that the person I was speaking to was wondering what was prompting all of this. Being an observer from afar, he had the benefit of an objective perspective that those of us who are in the thick of things tend to lose. And after all, looking at the bigger picture, Tun Mahathir appears to have forgotten that he had put in place the foundations for many of the things that are wrong with our country at the moment.

Think about it. Tun Mahathir apparently recently suggested that the government speak to the HINDRAF leaders rather than detain them under the Internal Security Act. I find this incredible considering the way in which Tun Mahathir used the ISA for his own political ends. Those of us who remember still shudder at the mention of Operasi Lalang. And how do we ignore the initial detention of Anwar Ibrahim under the ISA? In using the ISA in this way, Tun Mahathir set a precedent for those of like mind to follow. And it appears that there are those who are of like mind.

Tun Mahathir also, in effect, dismantled the systems of checks and balances that the founders of the Constitution felt essential for democracy. He notoriously had Tun Salleh Abas and two other supreme court justices removed from office in what to date remain controversial proceedings. In doing so, he began the process of suborning the Judiciary, a process that he completed by having the constitution amended to give Parliament the power to vest, and as such remove, the jurisdiction of the Courts. That paved the way for Executive immunity and arbitrariness beyond review. More significantly, it set the foundation for a system of patronage that the Judiciary apparently still subscribes to. I know of no other way to explain the recent declaration by the Federal Court that the separation of powers has no place in the Malaysian legal system.

Tun Mahathir rendered the Judiciary virtually ineffective against Executive arbitrariness, a legacy that many a Malaysian still suffers under. This is borne out by the fact that despite having the necessary expertise, manpower and equipment to deal with the key problems this country faces, these problems have not only persisted but have become more endemic. Take corruption for example. Surely, the ACA could do more. The revelation during the ongoing Royal Commission hearings that the ACA did nothing despite having proof of judicial impropriety because there were too many persons of influence involved is shocking, not only for the fact of the ACA having done so but for the apparent complicity of the Mahathir government. These are matters that Tun Mahathir cannot deny knowledge off, all things considered.

And could civil society complain? Leave aside the chilling effect of the ISA and consider instead the more fundamental question of how it is civil society was to get access to information on crucial matters. The systems that Tun Mahathir employed did not lend themselves to transparency nor accountability. What little information that could leak out was classified as Official Secrets under a law that Tun Mahathir had caused to be amended to ensure that the loop-holes were plugged. Media was put under the thumb of Government through tightened up media laws like the Printing Presses and Publications Act. Those few who were brave enough to try and defy media bans were prosecuted with gusto. Lim Guan Eng, Irene Fernandez are Malaysian heroes for the fact of their convictions for nothing more than attempting to bring to light issues that were crucial to the workings of democracy in this country. These laws, and the willingness to use them, still plague us.

Tun Mahathir also ramped up the Islamization process, and in doing so, put in place the kind of insensitivity that has led to the heightened ethnic tensions we are facing at the moment. This has further been driven by a supremacist mindset put in place through a mismanagement of affirmative action policies that have, instead of shaping a world class Malaysian society, led to the entrenching of a third world classist and racialist mentality that the Government continues to hide behind its boasts of a first world infrastructure. This mismanagement continues to plague Malays as much as Malaysians of other ethnic communities, in many ways allowing for the perpetuation of the problems the policies were intended to address in the first place. The exclusive club of elites that Tun Mahathir’s brand of economics created continues to be as exclusive as ever, contacts and riches being the only qualifications for admission. The widening poverty gap has left more and more on the outside, even as they are told that the policies are in actual fact aimed at helping them.

And of course we should not overlook Tun Mahathir’s reworking of the UMNO constitution to allow for non reviewable entrenching of leadership not only of the party but also, in effect, by reason of the nature of the power sharing arrangement within the Barisan Nasional, of the nation. What UMNO wants becomes a reality. And whoever is at the top of UMNO decides what UMNO wants. Tun Mahathir allowed reform and progress to be held to ransom by politics.

They still are, the politicized system a juggernaut that Malaysians desperate to institute reform measures in the face of mounting global competition and a wanton, uncaring depletion of national resources, from oil to state funds, are confronted by. This system, having allowed politics to be prioritized above all other considerations, has seriously undermined any genuine and comprehensive efforts to address wrongs effectively and efficiently. It has further allowed for a demonizing of those who have had to pit themselves against the system in their wish for a better Malaysia. It has also engendered a recklessness on the part of the Executive that is deeply worrying, not least for the emphasis it has placed on individuals and their vested interests.

I could go on but I think we all know the story. So, as much as there may be substance to some of the criticism of the current administration, the truth is that the current administration inherited the structure, the apparatus and the problems they created from Tun Mahathir. I cannot help but wonder whether it is timely for Tun Mahathir to admit the mistakes he made and point the way, objectively and constructively, the way forward for the nation.

If there is any blame on the part of the Adbullah Badawi Administration, it is its apparent willingness to take on, even embrace enthusiastically, the legacy that was left to it by the Mahathir Administration. The question that should be posed to the Abdullah Administration, and must be answered, is what has it done to address the very serious problems it inherited. Looking at the landscape, this is the question that will be at the core of the next General Elections and rightly so, in my view.

It sometimes seem that such steps as have been taken by the current administration are negligible in the face of the pressing need for major institutional reform. The nation needs a decisiveness and a firmness of vision that we are regrettably not seeing enough of. And for all of this and more, one cannot be faulted for concluding that the current administration is content with leaving things as they are.

And as for Tun Mahathir, as my Australian friend put it, what exactly is he up to.

Respectfully, the positions he has taken recently smacks of a political positioning. The criticisms leveled only rarely come across as the constructive and objective views of an elder statesman. The political nature of his criticism is curious for, at face value, one would have expected Tun Mahathir Mohamad to withdraw from politics when he stepped down as Prime Minister.

The decision to step down appears to have been a considered one. At the time, he was in relatively good health, was under no apparent pressure from UMNO to retire nor was the state of play in the wider context such that his resignation was required. It appears that Tun Mahathir had come to a view that the decision to hand over the reigns could not be deferred anymore. I would like to think that he believed that taking the decision then, rather than later, would allow him to assist in the transition process so that the hand over was smooth and did not impact on the nation’s interests.

As things eventuated, the transition did proceed smoothly and Tun Mahathir gracefully withdrew to the role of elder statesman. This was a role he was, and is, eminently suited for, the breadth of his experience being an invaluable resource on how to govern the nation and, perhaps more significantly, how not to.

His having retired left no reason for Tun Mahathir to involve himself in party politics. Such continued involvement would only be necessary if Tun Mahathir found it necessary to rely on the politics of his party as a means to a political end. His decision to retire as Prime Minister would seemingly have rendered the question of a political end wholly irrelevant. Moreover, the role of elder statesman would demand of him a detachment from political interests, not least for the fact that the most effective elder statesmen are those that are perceived as being objective, non-partisan and having no vested interest.

Seen from this perspective, the expectation that Tun Mahathir would withdraw from politics was the only reasonable one to have in the circumstances.

So, why the political positioning then? The situation is such that one possible inference is that he may be fronting for those who do not wish to fight their own political fights directly, preferring instead to stay in the shadows. If this is the case, and I am hoping it is not, it does not bode well. It marks a perpetuation of the systems of patronage that Mahathir allowed for, systems that have self-evidently led to the erosion of all the things that we value as Malaysians. If in fact there are those who wish to challenge Abdullah Badawi, then let them do so openly. I for one believe that challenges are good as it is only in the clash of ideas and opinions that we see the synthesis of true democratic value.

There may be other inferences that can be drawn. Mahathir is after all a true and true politician and that is something that does not fade away. However, even if untrue, Tun Mahathir should be concerned at possibility of his being seen as political. This is an impression that undermines Tun Mahathir’s stature and his value as an elder statesman. A perception of his being partisan would result in his opinions being seen as subjective, to be viewed with caution and perhaps even ignored. This would be a real loss for Malaysia.

MIS

Lingam Video: Who else for the Royal Commission?

I note from the report by Malaysiakini ('Royal panel: Ex-judge cum whistleblower 'pleasantly surprised', 28.11.2007) that Syed Ahmad Idid, the former High Court judge in discussing the intended Royal Commission of Enquiry into the judicial crisis had referred to the criteria suggested by HAKAM and asked “Who else is left?”.

We cannot lose sight of several key aspects of the discussion. If the motivation underlying the Government’s intention to establish the Royal Commission is sincere, its terms of reference will be designed to allow the Commission to consider all implications and ramifications of the Video. Further, the moral dictate by which the findings of the Commission will be given validity demand such terms of reference.

The implications and ramifications of the Lingam Video - ranging as they do from apparent interference by the Government into matters of judicial appointments and promotions to partisan decision making by judges in a manner contrary to the “without fear or favour” basis expected of independent judges - require that the comprehensive enquiry the circumstances warrant be conducted in a manner which leaves no room for doubt as to the integrity of the enquiry process and the findings.

Seen from this perspective, it is apparent that anyone who could be seen to have some interest or some axe to grind, would be a liability rather than an asset. It should not be open to anyone, no matter which ‘side’ they are with, to question the integrity of the enquiry process and the findings of the Commission. This is why the criteria suggested are so stringent and so far reaching.

The Commission does not have to be made up of a large number of commissioners. 3 or 5 members would suffice. Proper staffing arrangements could help the commission achieve the efficiency and efficacy expected of it. It is not unrealistic to expect that 3 or 5 persons of caliber fitting the criteria could be found. The Raja Muda of Perak, Raja Nazrin Shah, is one such person and could in light of his stature be invited to chair the Commission.

Should the need arise, assistance could be sought from international legal luminaries. There is precedent for this course of action. Judges from other commonwealth jurisdictions sat on the tribunal empanelled to try the former Lord President, Tun Salleh Abbas (judges from Singapore and Sri Lanka sat on the commission).

To this end, advice or recommendations could be sought from the International Commission of Jurists, a respectable organization whose mandate centers on the due administration of justice. Raja Aziz Addrusse is in fact a serving commissioner of the ICJ. The Judiciary and the Bar have enjoyed constructive relationships with international figures such as Michael Kirby, Justice of the Australian High Court, who have made outstanding contributions to the field within their respective jurisdictions as well as internationally and who would undoubtedly be in a position to ensure that the job was carried out and carried out as it ought to be.

The HAKAM criteria are the ideal. It is wholly unnecessary to jettison the ideal in favour of a perceived need for practicality. The matter at hand is one which allows for nothing less than the ideal.

Malik Imtiaz Sarwar
President, HAKAM

HAKAM Press Statement: Royal Commission Of Enquiry

The Royal Commission of Enquiry being established to enquire into the Lingam Video is one of crucial significance to the nation and the public interest. It should not looked upon as being merely a means of investigating the narrow issue of the Video and the involvement of V K Lingam in the promotions and appointments of judges.

When one considers the tenor of the conversation the person alleged to be V K Lingam is having, it is apparent that, if authentic, the Video has serious implications and ramifications as to the integrity of the administration of justice. The names of Tan Sri Vincent Tan, Tengku Adnan Tengku Mansor (who, if the Video is authentic, was a Deputy Minister at the time the Video was apparently taken, and is currently a Minister), Tun Dr Mahathir Mohamad, the Prime Minister at the time) and Tun Eusoff Chin (a former Chief Justice) were mentioned in a manner suggestive of a collaboration amongst these individuals on the question of promotions and appointments. Additionally, reference was made to the manner that the then Chief Justice, Tun Mohamed Dzaiddin, was approaching the question of promotions and appointments.

From the involvement of the then PM and the then Deputy Minister, and in view of the Government’s direct involvement in the promotion and appointment of judges, it is clear that the Government itself is embroiled. This is significant in light of numerous allegations against the Government for having attacked the Judiciary in 1988 and thereafter having interfered with the Judiciary.

These implications and ramifications as such pertain to, amongst others:

• the manner in which judges were, and are, appointed and promoted;
• interference by the Government in the process of appointments and prmotions beyond the limited involvement permitted under the Federal Constitution;
• the involvement of external influences and factors, including those of a corporate or commercial nature, that had, and have, no bearing on the capability and integrity of candidates for appointments and promotions;
• interference by the Government with the Judiciary directed at the outcome of the proceedings before the superior courts;
• the possibility of partisanship and allegiance amongst some members of the Judiciary, such partisanship and allegiance having a bearing on the outcome of proceedings before the superior courts; and/or
• the possibility that the practices revealed in the Video had continued in the period after the recording of the Video.
  

The terms of reference must as such be wide enough to allow for a consideration of the issues arising from these ramifications and implications. The need for a sufficiently comprehensive mandate has been made more pressing by the fact of the police reports lodged by V K Lingam’s brother, K.V. Thirunanama Karasu, that go to underscore the apparently inappropriately close relationship between V K Lingam and the Judiciary, The naming of other Judges in the said police reports and the nature of the allegations made strongly suggest corruption.

In view of the need for such a comprehensive mandate, it is evident that the persons appointed as Commissioners must be persons who are not only capable of fulfilling and discharging the very serious responsibility of such an effort. They must also be persons who, and who are seen to, have the necessary objectivity so as to ensure public confidence in the enquiry.

For this reason, it is self evident that that the following persons should not be asked to be members the Commission:

• Any Chief Justice since Tun Abdul Hamid, including Tun Hamid himself;
• Retired judges who served Tun Eusoff Chin, Tun Mohamed Dzaiddin and Tun Ahmad Fairuz;
• Any judge currently serving as such;
• Any person closely connected with the Government and/or who served the Mahathir Administration and/or the Badawi Administration or still serves. This would include former Attorney Generals; and/or
• Any person who might be perceived to have grievances against the Government and/or the Judicial Administration in the period from 1988. This would include Tun Salleh Abbas and any of the members of the Judiciary penalized in the 1988 attack on the Judiciary.
  

Malik Imtiaz Sarwar
President, National Human Rights Society
21st November 2007

The Judiciary Must Act

Tun Ahmad Fairuz has retired.

It feels as if everyone is breathing a little more easily. Not just because his retirement arguably marks the close of yet another turbulent chapter for the Judiciary, and as such for the Bar as well as the administration of justice, but also because it has allowed Malaysians to avoid the controversy that an extension of the term of Tun Fairuz would have as a matter of certainty caused.

Where does that leave us? For the moment in slightly calmer waters with Datuk Abdul Hamid, President of the Court of Appeal as acting Chief Justice. Datuk Abdul Hamid has distinguished himself as a judge at all 3 tiers of the superior courts and has several leading judgments to his credit. Though I do not agree with his reasoning in some of his judgments, I am prepared to say that Justice Hamid has struck me as a judge who has been consistently aware of his oath to uphold the Constitution and the significance of the Constitution in our lives as Malaysians.

It remains to be seen what the Acting Chief Justice proposes to do about the Lingam Video Scandal. Thus far the Judiciary has remained silent and civil society has not openly considered the role of the Judiciary itself in inquiring into matters that arise from the scandal. With Tun Fairuz having retired, the way is now open for the Judiciary itself to conduct its own internal inquiries, not only into matters arising from the scandal itself, but also into the systems in place for the appointment and promotion of judges, the way in which cases are scheduled before judges, the way in which judges are selected to form appellate benches to name a few.

This must be made a priority. We have heard CJ after CJ speak about reforming the system with a view to improving the levels of confidence in the Judiciary. Precious little was done. The video scandal and its implications has made it imperative for the Judiciary to walk the talk. The Bar is ready to assist, as it has always been as was made clear by the President of the Bar, Ambiga Sreenevasan in a follow up interview with Aniza Damis ('Video clip not doing judiciary any good', NST, 04.11.2007).

No comments were needed for this interview.

MIS

Spot Light: 'Video clip not doing judiciary any good'

Q: Is there a crisis in the judiciary?
A: There is. It's a crisis of confidence. It's been present for a while.

Q: What was it about the "Lingam" video clip that brought you to this climax?

A: It raised serious issues about the appointments' process, and the manner in which people who should not be involved in anything to do with the judiciary were heavily involved. For us, that was so stark. We felt we had to say something about it.

Q: Why walk? Why not just hand in the memoranda?

A: We have sent in memoranda to the judiciary and the government before, about the judicial appointments commission; we have raised it with the minister, we've even held a debate, between BN Member of Parliament Datuk Zaid Ibrahim and the minister (Minister in the Prime Minister's Department, Datuk Seri Nazri Abdul Aziz).

But, they (the government through Nazri) said they were not interested, unless it came from the judiciary. We think that's a non-starter. If you're asking the judiciary to change the system they like, it's not going to happen.

Q: Is the independent judicial appointments commission system a good system?

A: It's an excellent system. For its independence, its clarity and its transparency.

Q: The minister says if you want to change the system, you have to get the judges to change it. You don't think there are enough good men in the judiciary who would want to bring in that system?

A: We have many good men in the judiciary. If you were to do a survey, I think you would find even they, too, would want a change. What happens in other jurisdictions is that they set up a commission to look into it. But we haven't even got there yet.

I've no doubt there are good people in the judiciary; but there has been some resistance to the appointments system.

Q: Knowing that the government doesn't support the idea, why did you appeal to the government?

A: Well, we sometimes have to re-state our position. We updated our memoranda to show how many more jurisdictions have gone that way. It is not an interference of the judiciary (to set up an independent judicial appointments commission). Because what you are doing is strengthening the judiciary, that can never be interference. It's judicial reform.

Q: If the government were to set up an independent appointments commission, who would be the commissioners?

A: In the model we have suggested, the chief justice heads it. All the four office-holders (including the president of the Court of Appeal, Chief Judge of Malaya, and Chief Judge of Sabah and Sarawak) would be there. You would also have members of the public, the Bar, and the Attorney-General's Chambers. All the relevant stakeholders in the administration of justice would be there.

Q: Was the walk based on the belief the video clip was authentic?

A: I think the walk was based on all the things we've been saying about the judiciary requiring rejuvenation. We've been saying for so long, and I think the video clip made things absolutely urgent. We were very alarmed by what we saw on the video clip. We felt the video clip was not doing the judiciary any good at all, and has to be investigated. We were not prejudging anything in relation to the video clip. But there was enough there that gave us real cause for concern.

Q: Has the Bar Council done anything to approach the lawyer in the video clip?

A: A complaint has been lodged and the due process will take its course. We cannot interfere after that. It is with the disciplinary board.

Q: Had the main player in the video clip not been that lawyer, had it been any other lawyer, would it have mattered at all?

A: Of course. The fact that there can be any interference or manipulation of the appointments system is very worrying, frightening, in fact.

Q: So, if the lawyer had been a junior lawyer, and the judge had been a magistrate, would it have been as serious? Would it have resulted in the walk?

A: Absolutely. I think it would have made no difference. The fact of whether it was a senior lawyer or not is irrelevant to me. The very senior judge may well have made a difference. But to me, any kind of manipulation of appointments would have been very scary. Because of the ramifications, what does that do to all the cases that were heard?

Q: Lawyers don't chit-chat with judges about appointments?

A: The informal chit-chatting does go on, because there's no other way for the institution to know who are the good lawyers who should go up. So, where appointment of lawyers to the Bench is concerned, yes, that does happen. There's no harm in that. You can't stop people talking to each other.

Here, we are talking about a process where there is tremendous influence by parties who shouldn't have an influence in the process.

Q: If the government were to agree to a royal commission tomorrow, what would you want it to do?

A: To investigate the current state of the judiciary, and its appointments and promotions process, and how it can be improved. The issues in the video clip have to be investigated, to see whether any of those things actually took place at that time.

You would get the public coming forward, which happened in the royal police commission. Once you start that process, you would get a lot of information. When you do that, we would know exactly what has been happening in the judiciary.

Q: Why do you think no one has come forward to the panel?

A: Because the panel doesn't have powers to protect anyone; they don't even have powers to protect themselves. Despite the assurances that have been coming out, they don't think the panel can give them the protection they need. If it had the powers of a royal commission, they do have powers to protect.

Q: Would a royal commission really be able to give protection?

A: It gives more protection, at least to the evidence that is given, so that the person cannot be sued or arrested for the evidence they give. That is the protection the royal commission can give. It's not protection to identity, but protection to the evidence that is given.

Q: (Datuk Seri) Nazri (Abdul Aziz) said if no one comes forward to the panel by the time it concludes its work, it is "much ado over nothing".

A: It would be very wrong to take that stand. If you are going to deal with it in such a perfunctory manner, it will be real cause for alarm. I think the problem with the panel, its lack of powers, has to be taken seriously. People are scared to come forward. Despite all the assurances by everyone, there's no actual statutory protection for the evidence, that is what is missing. How can you conclude there is no issue?

Q: The minister said if you really wanted justice done, you would come forward.

A: The criminal justice system very often relies on whistleblowers. The law has to protect whistleblowers. We do not, at the moment, have an act that does that. The fact the government and Nazri himself recognises we need such an act must mean that there is value to be placed on whistleblowers.

Perhaps the Attorney-General should come out and say he will give immunity, in respect of civil and criminal prosecution to this witness. Amnesty should be given to this witness. In the public interest.

If you recognise that a country needs a witness protection act, then you recognise the value of whistleblowers, you recognise they need to be protected.

Q: The minister said it's not the government's problem if no one comes forward.

A: The government has taken a step to look into it, it shows they feel there is an issue. If no one comes forward, all it means is that the step they have taken is ineffective. If it is ineffective, then they have to take a step that is effective, they can't just close it.

Q: If everyone keeps talking about a crisis in the judiciary, won't this scare away foreign trade?

A: All we're doing is speaking the truth. I don't think anyone should be stopped from speaking the truth. We do it because we know we have the potential to be a First-World judiciary. Public confidence is something very fragile; it comes from the opinion that people have. If steps are taken to reform, the confidence will come back immediately.

Q: If the government doesn't do anything, what is the Bar going to do?

A: I think the Bar will be wanting to have an emegency general meeting. This cannot just go away without a full and thorough investigation. That is something we hope to persuade the government that has to be done.

Q: What options are open to you?

A: Our meeting with the prime minister -- that's a big option. And also by hearing from the members of the Bar at an EGM (on Nov 22), where we hope to communicate our views to the government. Those are the options we are looking at. We are still going to use persuasion.

Q: There was a suggestion at the recent Malaysian Law Conference for lawyers to go on strike from the courts for one day. Is that feasible?

A: We have discussed it. We have to be very careful in any steps we take. We have to be responsible -- first to our clients; secondly, we have to be careful not to pre-judge any issues. It's not something that we would easily do.

Q: The old chief justice is out. There is currently an acting-CJ, and there will be a new CJ. Have you thought of taking the minister's suggestion by going to the judiciary and asking them to reform?

A: We hope to write in and have a meaningful discussion, between the Bar and the Bench. We are hoping to see this new era, where there will be a lot of discussion. But even before this video-clip incident, the judiciary was already beginning to engage with the Bar. We were invited by the Chief Judge of Sabah and Sarawak (Tan Sri Richard Malanjum) to see the system in Sarawak. They are doing things to try to improve, and we want to help in that process.

So, we do know that there are judges there who will engage with us. And we hope to continue with that process, and that we start this new era where we work together, in the interest of the administration of justice.

Q: The government says it's not going to reform the judiciary unless the judges want the reform.

A: Well, let's see. It may be something everybody can be united on. Hopefully soon.

Mr Incredible

Nazri's interview with Aniza Damis of the NST ('Interview with Nazri Aziz: The walk, the video, the panel', 28.10.2007) is classic Nazri. In his inimitable style, Nazri reminds us of how much we are to blame for the Government we have.

I am at a loss as to how to summarise the points he makes without doing him too much justice, so I have set out the interview below. It is a chilling indication of how far removed the Government is from the needs and aspirations of the people, of how drunk with power those who lead us are. It dramatically underscores the need for us to start thinking about what we need to do to improve the system around us. Judging by Nazri's comments, the Government is in no hurry as its interests, and by that I take it those of the individuals who form the government, are served.

My comments have been inserted (bold, italics) where necessary. The version set out is from the on-line edition of the NST. I have not edited text, but have compressed sentences for ease of reference.

MIS

Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz, who is the de-facto law minister, talks to ANIZA DAMIS about the controversial video clip, the judiciary, the Bar Council and bloggers

Q: Is there a crisis in the judiciary? Why is there a perception of there being one?

A: There isn’t a crisis. It’s a false allegation. The perception has been created by some people. When I go back to my constituency, nobody talks about it. When people do not go to the courts to settle their disputes, that’s when there’s a crisis. But I don’t see that. The few people who are unhappy, make a lot of noise. It is reported, people read, and think there is a crisis.

Crisis means it involves the whole country but nobody talks about it. I even asked my fellow members of parliament (MP) but nobody talks about it. So, what crisis are we talking about? The crisis is in the minds of those who created it.

This is hardly a surprising answer from this Minister. Is there a crisis? The answer is obvious. If true, the video shows that appointments and promotions were not made on merit but rather allegiance. It shows that corporate and political interests were factors, as well as patronage. It shows that at least one senior member of the Judiciary (if the conversation was in fact with a senior member of the Judiciary), responsible for appointments and administrative decisions, was beholden to external parties and was prepared to exercise discretion and make decisions by reference to external considerations. If true, the rot has gone deep. This is a crisis.

If it was not a crisis, why did the Government set up the Investigative Panel.

And, as for talking to his fellow MPs, the Minister is obviously not talking to the right MPs. The Opposition has been screaming for a Royal Commission.

Q: Some 1,000-2,000 lawyers were involved in the Bar Council walk. Are you saying that that many lawyers have been misled?

A: Only 1,000 went to the ground. There are 13,000 registered members of the Bar.

Q: You don’t think 1,000 is enough?

A: 1,000 of 13,000 — is that a majority? What’s the big deal?

In a democracy, the minority cannot control the majority. The minority does not speak for the majority.

The Bar marched. The Bar is charged with upholding, without fear or favour, the due administration of justice by the Legal Profession Act. The Bar and the Judiciary are the twin pillar of the justice system. It was and is a big deal.

Democracy is not about majoritarianism. It is about exercise of rights by the majority having regard to the rule of law and the Constitution, and with regard to the equal rights of all. If it was a question of simple majority, the law would be as dictated by the majority. Though the Minister appears to think that this is the case, this is not the correct position in law. The Constitution does not appear to figure in the Minister’s analysis. This is surprising considering the oath he took to uphold the Constitution when being sworn in as a Minister and a Member of Parliament.

Q: Aren’t the views of the minority also important?

A: But (they are) not (the) majority. If there are any decisions to be made, it has got to be the majority.

The views of all minorities are important. It is the Rule of Law, not Rule By Law. It is might for right, and NOT might is right.

Q: So, if you wanted to be convinced (that there is a crisis), you would need 7,000 lawyers to walk?

A: Even then, it’s still not important to us, because the lawyers are not the only people who use the courts. The ordinary people use the court in their disputes.

It must be a majority of the population who feel that there is a crisis. Otherwise, there is nothing.

The population, reflected by civil society, has turned to the Bar for leadership on this issue in light of its pivotal role in the justice system. Civil society itself has reacted. Civil society is made up of a range of interest groups, of diverse backgrounds.

If it did not matter, why was there a tremendous police presence during the march.

Q: Do you really want that many people marching in the streets?

A: No. You don’t have to have millions of people marching in the streets. Let the people decide, whether there is a crisis or not, through the legal means of sharing your dissent or anger — through the ballot box.

The events of Pantai Batu Buruk and all the other demonstrations held recently show how the Government would react to a gathering of the rakyat. Nazri himself has declared that the Election Commission is not independent.

A: Then you can say, “Let’s have elections once every three years then.” We have to work within the system that we have.

Q: So, what you are suggesting is, if people are unhappy with the judiciary, they should vote BN out?

A: Ya.

I disagree. The Government is not the Judiciary. The Judiciary is not the Government. I do agree that amongst other things, the rakyat should treat this as an election issue.

Q: But what if people want a BN government, but they also want you to ensure a clean judiciary?

A: So then go talk to the judges — why talk to us? I’m the Executive. How can they ask me to sack the chief justice (CJ)?

No one is asking the Minister to sack the Chief Justice. The rakyat are asking for a Royal Commission of Enquiry. The Minister is being disingenuous. The power to suspend and enquire is with the Agong acting on advice. The power to establish a Royal Commission is with the Agong. Petitions have been submitted to the Agong asking for a Royal Commission.

There is no question of speaking to the judges. The Head of the Judiciary is the Chief Justice. He is implicated.

Q: You’re the de-facto Law Minister. And they are not asking for a sacking — they are asking for a more transparent appointment system.

A: We’re talking about the independence of the judiciary. I don’t speak for the judges. You want to clean up the judiciary, go and speak to the judge.Then, once the judges decide, we will accommodate the procedures. Lawyers can criticise the judges or judiciary if they want to. But if I, as an MP, criticise, then I am interfering. So, the best thing the lawyers can do is speak to the judges — tell them how important it is to clean up the judiciary.

I’m sure the judges are also concerned about their image. And if they so decide, and say, “Look, it is time that we change", then we will accommodate them — amend the Constitution, or whatever. It has to come through the judiciary — not from me. When they (the lawyers) went to the prime minister they are asking him to interfere. Tak boleh (Cannot).

Twenty years ago, they were very angry with us. The prime minister used the procedure to sack the CJ. Now you are asking us to use the procedure to do the same thing? Why is it that 20 years ago we cannot do that, but now we can? Is this at the whims and fancy of the Bar Council members?

I feel their problem is with the individual; not with the system.

There is a Malay saying: Marah nyamuk jangan bakar kelambu. You are upset with one individual, you want to throw away the entire system. Later, if you have another system, and you don’t get along with the CJ, do you want to change the system again?

The Minister is being evasive. The system has been utilized by the Executive to appoint the Judges we have. The video, if authentic, reveals how the system has been manipulated. This manipulation, if true, has been permitted through the system simply because it is not transparent nor is anyone directly accountable for the appointments.

The system of appointments and promotions is, as such, open to abuse. This is why the system needs to be improved. An improvement can only be in the interests of the nation as it will directly manifest in the competence, quality and independence of the Judiciary. That is why the Bar has asked for the establishment of an independent commission for the appointment and promotion of judges.

Speaking to the Chief Justice is out of the question. He is implicated. He who is to be judged ought not judge. It is as simple as that. The Government itself is implicated and should not be acting in its own cause.

Q: But if we had a transparent system, perhaps all judicial appointees would be acceptable to the people.

A: But if you have a royal commission for the appointment and promotion of judges, you might not agree with the decision, too, because members of the royal commission are also human beings. Tell me, who appoints the commission? The system is the same. The appointment of the commission will be made by the king, on the advice of the prime minister. The commission would be there, but the Bar Council will not be happy, and then you’ll have another system (change).

The Minister is being evasive. A system can be fashioned to ensure, as best as possible, the right process and, accordingly, the right appointments on the basis of merit, competence and impartiality. The English system, recently introduced, relies on a Judicial Appointments Commission which makes recommendations. Though the Lord Chancellor is entitled to reject the recommendations, he must give his reasons in writing. These reasons can thus be scrutinized.

The members of the Commission could be senior members of the civil society, the civil service and retired judges. They must, of course, be persons of integrity and in whom the rakyat have confidence. This is not an impossible requirement. The Minister should not allow his cynicism to stand in the way of good judgment.

Q: Can the commission be appointed by consensus or stakeholders?

A: Why stakeholders? Stakeholders are people too. Do you want to have an election? You know what will happen — people will campaign to become members of the commission and then they’ll be compromised, because they want to be chosen by the people. And then the judges will have to kow tim (settle) with them again — it’s the same thing.

The Minister appears not even to have considered the many models available, some of which have been found to be satisfactory. There is a wealth of literature on the subject.

Are we to change just because 1,000 lawyers are unhappy? The Constitution must be amended by two-thirds of MPs; and the two-thirds represent the majority of the people. If we MPs are not convinced, how can we amend the Constitution? We can’t listen to the views of just 1,000 lawyers. Since when was the view of 1,000 lawyers more important than that of the 11 million who voted for us?

Lawyers are not the only stakeholders. It is also the people in the streets — they are the ones who go to court.

A former Chief Justice, Tun Dzaiddin, recognized that public confidence in the Judiciary was at an all time low when he came into office. Nothing has changed since then. Independent international monitors, such as the World Bank, have noted a decline in public confidence. This is not only about 1,000 lawyers. This is about a system that should work the way it should.

And do all the Barisan MPs agree with the Minister?

Q: You have said the government was happy with the current system of appointments. Why?

A: We found that the system works for us. We inherited this system (from the British), and for 50 years it has served us well. Something which has not brought us any problem, why should we change?

The system works for the Government? Perhaps the Minister should explain what he means by this statement. The system should work for all. That is what ‘independence’ means.

The system shifted in practice post 1988. There has been minimal or no consultation with the Bar on appointments and promotions. This had been the practice before 1988. There appears to be no coherent basis for promotions, this has been at the whim of the Chief Justice. The video, if authentic, points to this fact.

If we need to change this system, we would need a clear indication from the judiciary.
Even then, before you change you have to go and see the Malay rulers. Out of courtesy, you have to tell them. Any slight change, we have to see the Malay rulers first. Once they agree, then you’ve got to get the agreement of the judges also, because this involves them.

The question is has the Government seriously appraised the situation? What steps has it taken to do so. Have the Rulers been appraised. All we have heard is dismissive remarks.

I am only interested in no interference by the Executive. When I became minister in charge of the judiciary, I wanted to make sure that what happened 20 years ago should not happen now. So, please do not ask us to interfere with the judiciary.

The Minister is not in charge of the Judiciary. The Chief Justice. The Minister of Law is responsible only for the administrative aspects of the system, not the justice system.

We are interested in there being no interference by the Executive too. The video, if authentic, shows that there was and could still be interference. The letter written by Syed Idid J showed that there was interference. There appears not to have been any meaningful investigation into the allegations in the said letter. If there had been, the rakyat have not been told of the same.

The prime minister is a good man, he respects that, so he doesn’t interfere. That’s why you can see judges now making decisions which may sometimes be negative towards the government. That’s okay.

I am glad the Minister thinks so. I wonder when Hishamudin J and other deserving judges are going to be promoted.

They are free to make their decisions without interference. The same goes for how judges should be appointed. But if the call for change comes from the judges, it’s okay.

Q: Is the tenure of the chief justice going to be extended?

A: I don’t know. I don’t know anything.

If he is the Minister in charge of the Judiciary as he claims, why does he not know?

Q: The video-clip issue will not yet be settled at the time of his retirement (scheduled for Thursday). Don’t you think that it’s rather unfortunate for him to retire before this matter is settled?

A: I don’t know whether it’s fortunate or unfortunate. That is the prerogative of the prime minister.

Q: Has the prime minister indicated anything to you?

A: No. As I said, I don’t interfere. I only do things which the prime minister asks me to do. I never ask about things that I am not supposed to be making decisions or that I am not supposed to know.

The Minister admits that his views are those of the Prime Minister.

Q: If you just take into account what is printed in the media and what comes out in the blogs, it would appear that there is a crisis in the judiciary.

A: To me, if there were no newspapers, if there were no blogs, then it’s just mere chit-chat in the coffeeshop. That’s all.

And the video is obviously fictional as well. The view in a hole in the sand is not a comprehensive. Acting like an ostrich will definitely make the Government myopic.

Q: Coffeeshop chit-chat is not important?

No. The people are important. This is a government elected by the people, for the people. So, people means the majority. If we didn’t have blogs, if we didn’t have newspapers, who in this world would know about it? But because of technological developments, you are able to chit-chat (about it). It’s just chit-chat.

It is not just chit chat. There is meaningful discussion taking place in society. But then, the Minister has already declared that as the Government has two-thirds of parliament, nothing else really matters.

Q: But the fear that is felt is genuine.

A: So what do you want me to do? Ban all these bloggers? Shut down all the newspapers? I don’t think so. We must live with the fact that this is now a modern world. Technology has enabled us to get to know each other so news gets moved faster.

No, the Minister should address the concerns and fears. He, and the Government, should recognize that they serve the rakyat. The rakyat does not serve them.

Q: So, you don’t think it’s important to try to address the worries of these people?

A: No. It’s not important. Why do you put so much importance on bloggers? You know what rubbish has been written in the blogs?

The Minister has admitted that the he, and by virtue of his acting only on the instruction of the Prime Minister, and the Prime Minister do not care about the worries of the people.

Whether blogs carry ‘rubbish’ is a matter of opinion. The rakyat are allowed their opinions. Just as the Minister is.

Q: Do you read blogs?

A: I don’t. I don’t waste my time. The few pieces that people print for me are just rubbish. I’d rather spend my time to do things that are constructive; that go down directly to the people who are really in need of the help of the government. Our bloggers are really not up to standard. When they put up something, it’s not something that they want to discuss in a very intellectual way. It’s more because of their anger - the language they use. Why should I read all this rubbish? When the standard of our bloggers is upgraded, then probably I will look at what is written. But anyway, they are a minority. My concern is for the majority.

A Government’s concern should at all times be for all, and never just for the majority. Who is the Minister helping, who are these people who are in need of help? Is the Minister willing to admit that the press is regulated in a manner that has denied Malaysians of crucial information. Blogs have been at the forefront of bringing to interested Malaysians opinions and information essential to their making informed decisions.

Q: Indians in Malaysia are a minority. Does that mean that they don’t count?

A: No, not in that minority sense. I am talking about bloggers. When you talk about minority in the sense of perkauman, they are very important, because they are our rakyat, a rakyat that needs to be helped. Bloggers don’t need to be helped. They are merely throwing rubbish into the blog.

I have no concern for and care about bloggers.

The problems of Indians as a minority is different from the problems of the bloggers. You must appreciate that. I don’t care about the bloggers, but I do care about the minority Indians. In my constituency, I take care of them. You can go to my constituency and see what I have done for the Indian minority. I was the one to open the training in Mara for the Indian youths. These are my concerns.

Good for the Minister. He should perhaps share what constructive measures have been taken by the Government to address the needs of the Indian community, in particular hard core poverty, education and employment needs. It would be interesting to hear how the Government has approached the question of addressing the needs of marginalized communities in a sustainable and coherent manner.

Q: What did you mean when you said that, by walking, the lawyers were behaving like the opposition?

A: Lawyers have got stature in the eyes of the public. And they are apolitical. Also, I have told them that we will work together; never again should the confrontation of 20 years ago be repeated. It doesn’t look good when the government is at odds with either the judiciary or the Bar Council. So, I opened up the doors, I’ve helped them in many ways, to hasten the Legal Profession Act (Amendment) for instance. I did not close my door to them. So, I was surprised when they suddenly decided to walk and demonstrate. I feel sad, because these are lawyers — my profession also — and I would rather see them being accorded the respect that should be given to them.

If the memorandum is from the Bar Council, they would have been given an appointment to see the PM. I would have preferred that the memorandum was brought to the PM’s office. They would sit down with the PM, discuss for one or two hours, and then hand the memorandum over.

But by walking, it is like you are already partisan, you have already made up your mind to oppose the government; that you cannot work with the government, that’s bad.

The Bar is apolitical. It is neutral. Its sole concern is the due administration of justice.

There is no question of opposing the Government. The Government has emphatically declared its position on the question of a Royal Commission. The Bar has submitted countless memoranda, including one on the establishment of an independent judicial appointments commission. The Minister himself has rejected the need for such a commission on the basis that the Bar does not matter, only the majority does.

The Bar has also correctly taken the position that the question of the video is a serious and urgent one. The Government appears to have taken the contrary position.

Peaceful demonstration is a universally recognize method of expressing a view on a matter of crucial significance. Peaceful demonstrations are not the sole province of the opposition.

Q: Bar Council president Ambiga Sreenevasan said the reason they walked was that they felt all their appeals were falling on deaf ears.

A: It will fall on deafer ears, I can tell you.

And the Minister wonders why the Bar marched?

Q: But why would you want to cover your ears?

A: They should know — they are lawyers. Their profession is adversarial. When they go in to court, there are two sides — the defendant and the plaintiff. Even the two counsel cannot agree on how the law should be interpreted. So, you need the judge.
So, they fight. But at the end of the day, they respect the decision made by the judge. They go out, shake hands, that’s it.

In giving their views on the judiciary, they must understand that there are two sides to the argument. And theirs may not be the right one. So they must accept the decision. As lawyers, they should. They cannot expect that whatever memorandum they give to us, we must agree.

Why couldn’t they have called to make an appointment? I’m sure the PM would have met them.

Deafened ears do not lend to constructive discussion, Minister.

Q: Maybe walking just says that they are partisan towards justice?

A: I wasn’t complaining about their memorandum. It was the way they did it — demonstrating on the street. The opposition was there. When you go on the street, how are you going to stop the opposition from coming in?

In a meeting with the PM, those who are the opposition — who are not genuine lawyers — cannot go in. You should be apolitical. You are an NGO, you are not an opposition party. You have stature, you’ve got a position in public, people look at you with respect.

But the moment you take to the street, who is going to respect you? They’ll laugh at you. There are people who are laughing at you — but they don’t write in the papers Bodoh punya kerja! (fool’s errand).

The only laughter we hear is that of the Minister. This is a serious issue. His responses clearly reflect a cavalier attitude. If this is the Government’s attitude, we can only infer that the Government is in no rush to get to the truth.

Q: Is there anything wrong in walking for your beliefs?

A: No. But that is the way of the opposition. If you are a political party, we can understand. But if you are a respectable society, that’s not an honourable way to do it — not when the government accords you respect.

How can you bring yourself so low? The moment you do that, we don’t respect you.
If I say to you, “M****r*****r you!", can you say, “Eh, let us sit down, we’ll talk about it.” No! You are lawyers, man! People respect you. So, do it in an honourable way.

When the president of the Bar Council wants an appointment with the PM, she or he gets it. That’s how it is. That’s what I wanted, and I would have accommodated that. But they didn’t contact me. I was waiting. Ambiga knows my doors are open.

But, deafened ears, Minister? And profanity is really unnecessary. But then, the Minister is from the same political party as others who use vulgar language in parliament. One begins to wonder whether this is the UMNO ethos.

Q: If, for instance, the Bar Council wants to take that avenue now, can they still take it?

A: They can. I have already told them, go and engage with the judges. But if they ask me to do what they want me to do towards the judiciary, I won’t do it because I am the Executive.

There is no question of engaging the Judges. The Chief Justice is the Head of the Judiciary. He is implicated.

Q: The Bar Council claims that they have never been able to get an appointment with the CJ.

A: He’s retiring anyway.

I told them, “Fairuz is also a human being. Kalau you criticise, criticise, criticise dia — dia mana mau layan you.” (If you keep criticising him, he won’t entertain you). I can get a lot of things out of you if I talk to you nicely, but if I start shouting at you, do you think you will accommodate me? No way!

Extremely mature, Minister. Diplomacy is important but should not be the end all and be all for matters of national importance.

Q: But you are more than an ordinary person. You are also the de facto law minister.

A: But you cannot divorce me from the fact that I am also a human being.

The Minister reminds us often enough by his conduct.

Q: That’s very irresponsible.

A: Human beings, there are ways, how you do it. You want something, you talk. You don’t shout, and then expect to get something, no way.

So, pride and ego before justice and the national interest.

Q: Why didn’t the government empower the panel to compel witnesses?

A: Because we have to first determine the authenticity of the video clip, to make it into a formal and genuine complaint.

And how does a powerless panel do this?

Q: What if the video clip is genuine, but the person doesn’t want to come forward?

A: That’s not our problem. We have already set up the panel, it’s for them. As I’ve said, if I was the one who made the complaint, I would be very happy, I’d come (forward) and co-operate. There’s nothing to fear.

(Opposition MP Lim) Kit Siang said to me this morning (Wednesday) the problem is not that they are afraid of the public taking action against them; but they are afraid of the government.

I think that’s no excuse.

Explain to us then the prosecution of Irene Fernandez and Lim Guan Eng, the continued threats of ISA detention and other threats of reprisal. Explain to us how the whistle-blowers are going to be safe and secure, Minister. There is no legal protection for whistle-blowers. The Government is implicated. Where do witnesses turn to for safety.

Q: Why can’t you set up something that can compel a person to come forward?

A: Then you are forcing people. We want it to be voluntary. When you make a complaint to the police, are you being forced to make the complaint, or do you genuinely want to complain? You see, that is the problem (with the current situation). You have to come to us.

Even if you don’t trust us with the tape, then we can always tell that fellow to come, show the tape, then we see, and you can take back the tape. But even then they don’t want to come forward. And their reason is that they are scared of the government. That’s not a reason.

That is the reason. It speaks volumes about the Government and the rakyat’s perception of the Government. We are a long way from "cekap, bersih dan amanah."

Update: It has been brought to my attention that I had not captured the full version. The missing sections and my comments can be viewed here. My apologies for the inconvenience.

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')

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

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

Why A Royal Commission?

There is a call for a Royal Commission. Some of us may be uncertain what such a commission is and how it can help.

A Royal Commission, as it is popularly known, is a commission that is established under the Commissions Of Enquiry Act 1950 (Revised 1973). This Act authorizes the DYMM Yang Dipertuan Agong to, where it appears to him to be expedient so to do, issue a Commission appointing one or more Commissioners and authorizing the Commissioners to enquire into -

• the conduct of any federal officer;

• the conduct or management of any department of the public service of Malaysia;

• the conduct or management of any public institution which is not solely maintained by State funds; or

• any other matter in which an enquiry would, in the opinion of the Yang di-Pertuan Agong, be for the public welfare (other than a matter involving any question relating to the Islamic religion or the Malay custom and/or inquiries for state purposes where Sabah or Sarawak are concerned.
  

What is important for civil society purposes is that it is the YDPA that issues (or establishes) the Commission. In doing so, there is no need for the YDPA to act on advice of the Prime Minister or Cabinet. As such, the establishment of such a commission is not a decision of the Government to take, or not to take, as the case may be.

This is important as it is highly unlikely that the Government would take any step towards an inquiry that could result in an expose of its wrongdoing. One of the more prominent royal commissions in recent times was the commission that conducted an enquiry into the assault on Anwar Ibrahim during his detention. The findings of the enquiry led to the prosecution and conviction of a former IGP.

As the Anwar Ibrahim commission showed, the powers of such a commission to delve into the evidence, through the summoning of witnesses and the holding of hearings, are sufficiently wide so as to allow for the Commission to get to the truth of a matter efficiently and efficaciously. The fact of its ‘royal’ status and the freedom of the YDPA to appoint His Majesty’s commissioners who are more usually retired and respected judges and community leaders, work towards inspiring confidence in such a Commission’s decision making process and the impartiality of its decision.

The terms of reference of a Royal Commission are determined by the YDPA. In this way, such enquiries differ from those conducted by SUHAKAM whose enquiries are more concerned with the question of violations of human rights or civil liberties. A Royal Commission can go deeper into causes than a SUHAKAM commission can and this, and the fact of the ‘royal’ status of the commission may in some circumstances lend more significance to the report of a Royal Commission.

***

As can be seen from the above, a Royal Commission would be an appropriate way in which the matters of Pantai Batu Buruk as well as the matters raised in the Petition Rakyat could be dealt with. This conclusion is premised on the following:

• a Royal Commission is a method in which the YDPA could meaningfully respond to the call of the rakyat
  

• a Royal Commission would be a way in which a seemingly independent and impartial enquiry process could be carried out. The rakyat have confidence in His Majesty. The Royal Commission would be, in effect, a manifestation of His Majesty’s concern for justice and truth, and his compassion for the rakyat, and the enduring truth of the Rule of Law
  

• a Royal Commission could not only enquire into the events of Pantai Batu Buruk but also their causes including:

1. the reasons for the refusal or withdrawal of the necessary permit for assembly;
   
2. the need for such a permit in the first place; the actions of the police including the use of force and the carrying of firearms;
3. the grievances of the rakyat that led to the fracas including serious concerns about the electoral process and the call for electoral reform

MIS