Category: General Posted by: Raja Petra
THE CORRIDORS OF POWER
Din Merican
The controversy with regards to the video-clip -- now aptly dubbed
Lingamgate -- and the ongoing public debate surrounding it is about
the judiciary and the rule of law; which are universally accepted as
indispensable pillars of an enlightened government, a modern economy
and civilised life. In other words, this is to ensure that no person
will be subjected to the whims of another; as what should be in a
just society. Under the doctrine of the separation of powers, the
judiciary is the branch of government primarily responsible for
interpreting the law. It must therefore be above the executive branch
of the government, even above the Prime Minister, and certainly above
all those who walk in the corridors of power.
The judiciary's foremost role is to defend and uphold the
Constitution and to ensure that the rule of law prevails. A pervasive
element in the judiciary's role at every level is the protection of
each person's constitutional, human, civil and legal rights. The
judiciary also has an essential role in protecting us from the wrong-
doing of others, protecting the weak from the strong, protecting the
powerless from the powerful, as well as protecting individuals from
the unwarranted or unlawful exercise of power by the State.
The judiciary and the rule of law are the things which, perhaps, more
than any other, affect people's daily lives. The Anwar Saga of the
Reformasi days, the ongoing Altantuya Fiasco, plus many more such
'circuses' only serve to reinforce the argument that an independent,
impartial and un-exploitable judicial system is second to life itself.
Before we dwell into the recent announcement of the setting up of an
'independent' panel, it is pertinent for Malaysians to recall that
the legacy of the past, a pall that hangs over our judiciary,
continues to haunt this nation till this very day. The rot, we must
remember, began some 20 years ago and which saw the judicial system
on a slide down a slippery slope that promises to get worse before it
gets better.
Since the dismissal of the Lord President, Tun Salleh Abbas, the 1988
suspension of five eminent judges, and the eventual sacking of Tan
Sri Justice Wan Sulaiman and Tan Sri Justice George Seah, Malaysians
of all walks of life -- not to mention the Bar Council, civil society
groups and politicians -- have been expressing grave concern over the
independence of our judiciary. Doubts have also been raised with
regard to the character, integrity and performance of some of our
judges.
Tun Salleh Abbas was ousted supposedly on grounds of 'misbehaviour'.
Later, the Tun defined 'misbehaviour' as unlawful or immoral conduct
'such as bribery, corruption and acts done with improper motives',
none of which, Tun Salleh Abbas maintained -- and the public as well
-- to this very day applied to his dismissal. Strangely enough,
'misbehaviour' is a perception of what characterises the state of the
legal system as a whole from 1988 to the present day. In particular,
it dramatically took our judiciary down this greasy slope, gathering
speed as it went down the abyss.
After this most regrettable 1988 saga, there were growing allegations
about the involvement of some of our judges in corrupt practices.
There was the infamous 33-page 'poison-pen letter', one believed to
have been written by a then senior judge, which provided names, cases
and extremely fine details of specific allegations. The said poison
letter drew headlines in the mainstream media at home and abroad.
With mounting pressure from the Bar Council, politicians, civil
society groups and the general public, the then Attorney-General
promised to look into the matter. But nothing came out of it.
Instead, he caused more controversy than dignitaries did in a lifetime.
Then yet another case came out into the open. This was the Ayer Molek
affair involving a complex commercial wrangle over land acquisition
and shares. As it was connected to a senior politician and an
important corporate player, the Appeal Court reversed a High Court
ruling but was, in turn, overruled by the Federal Court. This Ayer
Molek case led to finger-pointing to a lawyer, since then known in
some circles as 'Mister Fix It', who was acting for a politically
well-connected tycoon and who allegedly attempted to bribe some
members of the judiciary. There was also a scandal implicating a
senior Minister in a share allocation exercise. This was again
covered up by the authorities.
After that the sex scandal of the Melaka Chief Minister exploded onto
the scene which implicated him in affairs with various women,
including a 15-year old girl, besides alleged misuse of state funds
that ran in millions upon millions. But the powers-that-be at the
time prevented further investigation and, as if in defiance of public
outrage, this disgraced politician was reinstated to an important
party post. What is worse, it also inflicted damage on the legal system.
Once again, despite promises by the authorities to get to the depth
of this matter, nothing was done. Instead, the public was soothed
with talk of a 'Code of Ethics' for judges. After much debate, in
1994 it was agreed that a code should be drafted. However, owing
largely to protests by certain judges, this too did not see the light
of day. As a result of the continued series of allegations on the one
hand, and empty promises by the authorities on the other, nothing was
really done to restore faith in the fairness and independence of the
judiciary -- and as such in that same process the rule of law also
suffered.
The above is, in a nutshell, the long and short of where we are
today. And the situation has been getting worse rather than better.
Not only does 'Mister Fix It' continue to work hand-in-glove with a
familiar politically-well-connected tycoon, but he is also alleged to
be engineering judicial appointments at many levels, besides bribing
some of them as well. According to local media reports, a prominent
serving Cabinet Minister is said to be also involved.
All told, Malaysians across the board and cutting across political
party lines and other sectarian divide are simply aghast at the state
of the judiciary, the rule of law, and the future of the country.
There is now a ground swell of public anger. It is against this
backdrop that the public is today debating over the video-clip
revelation and wondering where the hell this country is heading.
From the initial comments by the members of the special independent
panel entrusted with the task of investigating the video-clip, the 26
September announcement by the Deputy Prime Minister that the
government had set up a panel appears to be a rush-job, not to
mention confusing one as well. None of the panel members were clear
about their terms of reference. At this point of time, they have not
received their letters of appointment either. The impression given is
that this initiative was done in haste, reinforced by the fact that
their appointments were made over the telephone.
What continues to puzzle the public is the rather cavalier manner in
which this panel is being established. One wonders whether this is
the way the government makes important decisions, in particular on a
matter that has raised serious public concern across the board. The
other worry is about why the Deputy Prime Minister rather than the
Prime Minister himself, who is also the Minister of Internal
Security, had to make this announcement.
It must be recalled that the Prime Minister had earlier, on September
21, directed the Inspector-General of Police to immediately start a
thorough investigation into the video recording which has implicated
a prominent lawyer purportedly brokering the appointment of judges.
Has the Deputy Prime Minister's announcement superseded the decision
of the Prime Minister? Furthermore, was this matter fully discussed
by the Cabinet? It would appear that it was not, because the
announcement was on September 25, a day before the weekly Cabinet
meeting. Is the setting up of the panel then a fait accompli?
Also, questions are being raised about the position of individual
members of the component parties in Barisan Nasional as represented
in the Cabinet. They remained elegantly or otherwise silent. Yet
another question is whether the idea of the selection of the members
of the panel -- comprising a former Chief Judge of Malaya, Tan Sri
Haidar Mohamed Noor as its Chairman, a former opposition politician
Tan Sri Lee Lam Thye, and a former Court of Appeal Judge, Datuk
Mahadev Shankar -- ever discussed by the Cabinet prior to the Deputy
Prime Minister's announcement? Neither has there since been any
confirmation that the setting up of the panel had been endorsed by
the Cabinet at its meeting yesterday; September 26.
The Chairman of the panel is an independent non-Executive Director of
the CIMB Group which is headed by the Deputy Prime Minister's own
brother. Tan Sri Lee Lam, as Chairman of the National Service
Council, works closely with the Deputy Prime Minister in the latter's
capacity as Minister of Defence. He is also a director of several
firms such as Media Prima Berhad whose companies include some
mainstream media. Datuk Mahadev has a legal background and remains a
consultant to a well known legal firm.
The whole matter leads to more questions than answers, raising
concerns of the public. Why not leave the investigation of the
authenticity of the video-clip in the hands of the police, as decided
earlier by the Prime Minister? Under these circumstances, it behoves
on the three-member panel to recognise that, today, more than ever as
we celebrate the 50th Anniversary of independence, that good
governance, especially of the judiciary, and the character and
integrity of judges, is not only paramount but vital.
The public and the future of the country are at stake. The panel must
take into account that if the government does not deal with past
deeds, how can it deal with the future, not to mention the present.
The current controversy over the video-clip goes to the very heart of
governance, that is, the rule of law, on the one hand, and
transparency and accountability, on the other.
At yesterday's meeting to announce Malaysia's ranking on the
Corruption Perception Index (CPI) by Transparency International (TI)
at the Integrity Institute of Malaysia, the founder president of the
TI Malaysian chapter, Tunku Aziz Ibrahim, said the following:
"In the long years I have been involved in the fight against
corruption both here in Malaysia and internationally, I have only
ever applied the term systemic corruption, in our part of the world,
to neighbouring Indonesia and the Philippines. Today, we (Malaysians)
are playing in the same league with them, and from all indications,
we are winning hands down."
He further added:
"In the last three years, in our own backyard (Malaysia), matters
have come to such a head, and in ways that suggest that corrupt
practices have become a way of life, that I feel justified in saying
that unless there is a demonstration of stronger and more focused
leadership to confront corruption decisively, Malaysia will continue
to carry a stigma of a country that has developed unethical public
behaviour, or not put too fine a point on it, corruption into a fine
art form with politicians and civil servants outdoing and
outperforming one another in the race to accumulate riches that defy
our imagination."
He also highlighted that:
"Today, we (Malaysians) are the grip of a widespread institutional
fatigue. Every major institution of Government, the justice system,
the road transport department, the Anti-Corruption Agency and local
government, to name but a few, have been ethically compromised and
have become in varying degrees a hotbed of corruption to such an
extent that public confidence in these institutions has all but
evaporated. Institutional failures resulting from poor,
unprofessional and unethical leadership are the primary cause of the
systemic corruption we now experience in Malaysia."
In addition, he noted:
"...The outcome of the investigation of the Lingam Tape is being
awaited with bated breath because the implications for the future of
our country are going to be profound."
Be that as it may, besides having direct impact on the lives of our
citizens on a daily basis in more ways than one, the judiciary has
economic consequences on the country. Malaysia has gained the
notorious reputation of practicing cronyism in politics which has
contaminated the judiciary and the civil service. This discourages
investments by a great majority of firms at home and abroad who do
not know people in high places. That, in turn, translates into slower
economic growth, loss in national competitiveness, lower government
revenues, fewer jobs, not to be forgotten the shame that it brings to
the country.
Simply put, tainted persons and those of questionable character --
whether in the judiciary, civil service or government -- should not
hold office. And this is exactly what Raja Dr. Nazrin Shah Ibni
Sultan Azlan Muhibbuddin Shah stressed in his policy speech recently.
In respect of the judiciary, it is a fundamental principle in any
legal system that a judge should not meet with any litigant. To say
the least, this is not conducive to public trust in the judiciary. As
it is often said, "justice should not only be done but be seen to be
done".
The appointment of the panel, which is an administrative measure with
no force law, is at best a half-measure and the public cannot be
faulted for being cynical about it or behind the motive for setting
it up. The perception is that the government continues to play as in
the 1980s and 1990s to the present fast and easy with the law to
decide cases on purely political grounds. In view of the above, the
setting up of the panel should only be seen as a first step to begin
cleansing the judiciary. The next logical step for the government is
to put the appointment of judges in the hands of an independent
commission.
For this to happen, a Royal Commission on the Judiciary is urgently
warranted.
There must be a root and branch reform of the legal system. Only then
will there re-emerge the likes of Tun Suffian, Tuanku Sultan Azlan
Shah and Tun Salleh Abbas, and others like Tan Sri Eusoffe Abdul
Kadeer, Tan Sri Gunn Chit Tuan, Tan Sri Kadir Sulaiman and Tan Sri
Siti Normah, to name but a few. They, it must be remembered, all
joined the judicial and legal service priding themselves on being the
best and to give the best. In the meantime, either the newly
appointed President of the Appeal Court, Datuk Justice Abdul Hamid
bin Mohamad, or the Chief Judge of Malaya, Datuk Justice Alauddin bin
Mohd Sherif, personalities of long-standing service in the judiciary
and, above all, men of character and integrity, should be elevated to
the post of Chief Justice.
Our Third Prime Minister, Tun Hussein Onn, passionately believed in
the inviolability of the Constitution and the Rule of Law. He always
insisted on justice, both economic and social, for all and also
equally demanded that everyone must be accountable before the law. He
proved this by his ability to move courageously, even boldly, when in
a tight spot, or even when issues of principles are at stake.
The panel should heed all of the above in carrying out its duty. The
panel does not have to wait or be bound by whatever its terms of
reference may be. Only then can sanity be restored in this country of
ours.
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