A Malaysian Inquiry Panel Goes Nowhere

No sooner had Malaysia’s lawyers marched on the administrative capital of Putrajaya on September 26 to demand an inquiry into the politically tainted naming of the country’s judges than their spirit was doused by the Malaysian Bar Council president’s hasty acceptance on the same day of a three-person “independent” panel hurriedly announced by Deputy Prime Minister Najib Tun Razak on the previous day Sept 25.

Najib’s so-called independent panel is a ploy designed to deflect the real target of cleansing our corrupt judiciary, which has been crippled by dictates of the executive.

By accepting the panel, the bar has placed its own request for a royal commission of enquiry in abeyance, weakened the positions of other petitioners to the king for the same commission of enquiry, and dampened the fervour for change that was gathering momentum across a wide spectrum society since the exposure by opposition leader Anwar Ibrahim on Sept. 19 of a video clip showing a top lawyer discussing the appointment of politically pliant judges on Sept 19.

Najib’s panel is complete nonsense. It not only misses the forest for the trees in its scope, it is also totally inadequate in respect of moral authority, legal power and impartiality of panelists.

Scope of Inquiry

The panel’s term of reference is limited to ascertaining the authenticity of the video clip of a conversation purportedly between then-Chief Judge Ahmad Fairuz and lawyer V K Lingam. But the nation is more interested in the hanky-panky that is going on between the prime minister and top judges that was depicted in the telephone conversation. Lingam has given a lead as to how judicial appointments and promotions (especially in top positions) are made based on personal loyalty to the political and financial interests of the prime minister as brokered by business and political cronies. We want to know the extent of political control exerted on the judges and how it has caused miscarriages of justice in the past. Only by finding out the truth can we rectify the wrong.

Authenticity is of course a pre-requisite to any enquiry, but in this case, it is almost a foregone conclusion as both Fairuz Lingam have not openly denied such serious allegations two weeks after the video’s exposure. Is it conceivable that in this day of instant communication and revolutionary technology that the government, having access to the video for two weeks just like the rest of the world, is so ignorant of the authenticity of the tape that it has to appoint an “independent” panel to ascertain it while refusing to consider anything else? What conclusion can we draw other than it is a government tactic to diffuse public pressure and to buy time to wriggle its way out of this damning scandal?

Moral Authority

This panel is appointed by the deputy prime minister and presumably reporting to the same. But don’t forget that this video is about the prime minister manipulating the judiciary for personal and political gain – a serious breach of the Constitution by the head of the executive branch, and by extension, the ruling party which stands to gain politically in this illicit relationship. So wouldn’t there by a conflict of interest if the deputy head of the executive were to appoint a panel responsible to him to uncover the sins committed by the executive? How would an administrative panel under the jurisdiction of the deputy prime minister be able to command the kind of moral authority required of it?

Legal Power

This Najib panel is only an administrative body without the legal power to summon witnesses and compel evidences. It cannot even directly interview those implicated to obtain details from them. So its findings have to be based on those from the police, Anti-Corruption Agency and other government bodies.

So we do not expect the panel’s conclusion to differ from those of the police or ACA, and we don’t see how call such investigations “independent.”

Impartiality of Panelists

The leader of the panel is Haider Mohd Noor, a former chief judge of Malaya, now chairman of Bumiputra-Commerce Bank Bhd, which is controlled by Najib’s brother Nasir. Haider is also a trustee of Perdana Leadership Foundation, which is used by former Prime Minister Mahathir Mohamad as his base to continue his political activities after he stepped down as premier. And as then prime minister, Mahathir is seen as the ultimate manipulator of the judiciary when the Lingam video was recorded in early 2002, and as such Mahathir should eventually be the prime target of investigation in the present scandal.

With these connections to the interested parties, Haider is already ill-suited to participate in this panel. However, Haider’s worst problem comes from his dubious role in the infamous judicial crisis in 1998, when Mahathir sacked then Lord President Salleh Abas and two other Supreme Court judges, resulting in the subjugation of the institution of the judiciary to executive control until this very day.

Haider, then Chief Registrar of the Supreme Court, ordered the court seal and doors to the Supreme Court be locked, in defiance of Supreme Court Judge Wan Suleiman’s request, so as to prevent an emergency court hearing, which would otherwise have issued an injunction to stop the Tribunal that led to Salleh’s dismissal.

Panelist Lee Lam Thye is chairman of the National Service Council and reports directly to Najib, who is also Minister of Defence. Lee is also a director of Media Prima Bhd which is UMNO’s media flagship that controls its vast media empire of newspapers, TV, radios, etc. It is mainly through Media Prima that UMNO exercises its stranglehold on information dissemination that has kept vast sections of the populace in the darkness with regards to the real crises confronting the nation precipitated by UMNO’s serious misrule.

And UMNO, as the real political power controlling the country, is of course the beneficiary of the unholy politician-judiciary nexus, and therefore a hugely interested party in the present investigation of the Lingam video clip.

In addition to these questionable links to the interested parties, Lee is suffering from an image problem arising from his sudden and mysterious resignation as No.2 leader in the DAP that caused a party crisis on the eve of the 1990 election. Many continue to hold Lee in suspicion, citing his move against his party in 1990 as part of a plot that enabled then Prime Minister Mahathir to call a snap election at the enemy’s weakest moment. And of course, Lee’s subsequent elevation in social status (a Tan Sri now) and wealth (directorship of many companies), much of it through goodwill of the ruling power, does not help to shed his image as some one deeply beholden to the ruling party.

An important purpose of the enquiry is to restore confidence to the judiciary in particular and the government in general, whose image has been much tattered by a series of grave scandals in recent days. The appointment of a panel with such questionable backgrounds can only deepen the people’s mistrust of the entire establishment.

Royal Commission

It will be seen that all the above weaknesses can be overcome, if the king exercises his power under the Commissions of Enquiry Act 1950 to appoint a royal commission of reputable individuals to probe the video clip. This commission, which would be vested with legal power to summon witnesses, compel evidences and provide protection to witnesses, would ascertain the extent of decadence of our judiciary and recommend appropriate remedies. The report would be submitted to the king for deliberation by Parliament.

There is of course no guarantee that a good royal commission report would lead to the salvation of the judiciary, as shown in the case of a Royal Commission Report on the Police completed several years ago. Though the report on the police was excellent, our police force continues to deteriorate as reflected by continuing scandals and mounting crime rates, despite huge fortunes being spent in upgrading facilities and increasing manpower. This is due to the lack of political will to eradicate the root causes of rampant corruption and wanton human right abuses.

Nevertheless, a royal commission is an important first step, as effective exposure by a dedicated commission will open the eyes of the people to the gravity of our weaknesses, thereby giving impetus to the mass movement that would compel the hands of the government to initiate the necessary changes.

Allowing the status quo to continue is not an option, as a deteriorating judicial system will hasten the slide in investors’ confidence that set in with the Asian financial crisis a decade ago. The consequential damage to our economy and national well being will only accelerate under the intensifying pressure of globalization. These mounting economic challenges in an ambience of worsening racial and religious tensions as has been taking place now under UMNO’s leadership will surely drive this nation towards disintegration.

It is therefore vital that all Malaysians treat the present judicial crisis as reflected by the Lingam video clip as a life-or-death issue that must be tackled with full force until it is resolved. This is the time when the people must unequivocally exert their collective will to make this commission a reality.

Finally, it is hoped that the Malaysian Bar would urgently review its position with regards to Najib’s panel, and once again take the lead role, as natural guardians of law should, in a renewed charge towards thorough cleansing of our judiciary. And that means Najib’s panel must be rejected forthwith.

Kim Quek is a Malaysia-based commentator on political affairs