Malaysia's judiciary on Candid
Camera By Anil Netto
PENANG, Malaysia - On May 27, 1988,
then-prime minister Mahathir Mohamad, his party
faced with a legal challenge from rivals that
threatened his leadership, summoned Malaysia's top
judge, Salleh Abas, and gave him an ultimatum:
resign or face a judicial tribunal. That secret
private meeting led to suspension of Salleh and
five other top judges (three of whom were later
reinstated). It precipitated a crisis from which
the judiciary has never recovered.
Today,
the once-powerful Mahathir, 82, is under sedation in
intensive care after surgery
to treat a infection following a heart-bypass
operation on September 4.
And today, the
credibility of the judiciary itself is also on
life support after explosive revelations in a
widely circulated (including on YouTube)
eight-minute video clip featuring what appears to
be a well-connected senior lawyer, V K Lingam,
purportedly discussing promotions and factionalism
among senior judges over the phone with Ahmad
Fairuz Sheikh Abdul Halim, the No 3 judge in the
country at the time the clip was recorded on a
mobile phone in 2002.
Lingam is also seen
apparently talking to Fairuz about the latter's
own rise within the judiciary. Ahmad Fairuz is
today the country's chief justice, due to retire
next month. The lawyer is also heard saying that
he had discussed the judiciary with tycoon Vincent
Tan and another prominent ruling party politician
- both regarded as intermediaries to then-prime
minister Mahathir. The conversation suggests that
certain top judges are closely connected with the
country's top leaders via political intermediaries
and business cronies.
The minister in the
Prime Minister's Department, Nazri Abdul Aziz, has
said that the judge implicated in the video clip
had called him to deny that he was the one talking
to the lawyer.
Some see these revelations
as God-sent. One academic told Asia Times Online,
"This is a sterling opportunity to draw out the
oligarchic control of this country - a chance to
pull away from the ethnic ding-dong that's going
on. Here is the oligarchy of wealth and privilege:
an Indian lawyer, a Chinese tycoon, a Malay judge,
etc. And claiming to do this in the interests of
the country, of the PM" (Mahathir).
The
affair gives a whole new meaning to the word
muhibbah (Malay for "interracial goodwill")
- while the elites divide and rule the rest of the
country, secure in their own positions of wealth
and power. It was only recently that Ahmad Fairuz
stirred controversy when he suggested that
reference to the English common law in Malaysia's
legal system be abolished. The move sparked an
outcry among non-Muslim groups who felt that it
would pave the way for the adoption of sharia
(Islamic law) precepts.
Civil-society
groups have already called for the suspension of
the chief justice. The Bar Council is organizing a
march of lawyers from the Palace of Justice in
Putrajaya, the administrative capital, to the
Prime Minister's Office on Wednesday. They will
submit a memorandum to Prime Minister Abdullah
Badawi and the cabinet calling for a royal
commission of inquiry to investigate the
allegations in the video clip.
The
government announced on Tuesday it is setting
up an independent panel to investigate the video
clip. The Bar Council welcomed this as a
first step, but is still asking for a royal
commission of inquiry which should also look
into the state of the judiciary and the need
for a Judicial Appointments
Commission.
The video
has demonstrated that Malaysians cannot leave the
appointment and promotion of judges in the hands
of the few, said lawyer Dipendra Harshad Rai in a
published comment. He joined others in calling for
the establishment of an independent commission for
the appointment and promotion of judges.
Prior to 1988, he said, the top judge
would forward a name, after police vetting, to the
prime minister. This process also included the top
judge consulting the bar chairman and other senior
bar members. Although this practice was done
informally, it did provide some assurance that
only people of good character, competence and
suitability were recommended, observed Dipendra.
The events of 1988 saw the end of this
process. "Appointments and promotions of judges
were left basically to the chief justice and the
prime minister. Never have the fate of so many
been decided by so few," said Dipendra. "No doubt,
only those with the right political patronage and
right beliefs were considered as suitable."
The video clip will affect every aspect of
civil society, he added. "A layman who loses his
case will feel that it was because the system is
corrupt no matter how right the decision may have
been," he said. "An investor would think twice
before investing simply because the corrupt
lawyers and corrupt judges will get him no
relief."
The video clip was revealed to
the media by former deputy premier Anwar Ibrahim,
who is now trying to stitch together an alliance
among Malaysia's disparate opposition parties.
Anwar himself was a victim of the judiciary,
having been incarcerated after trials widely
regarded as politically motivated.
Not
surprisingly, faced with such compelling
disclosures, the government has cast doubts on the
authenticity of the video clip. But many
Malaysians do not appear to be in the least
surprised at the revelations and the clip has been
posted all over Malaysian websites and blogs.
In 1999, opposition leader Lim Kit Siang
tabled a substantive motion in Parliament
expressing concern over serious allegations of
judicial impropriety that had emerged in a
defamation suit against the Asian Wall Street
Journal.
In his motion, Lim pointed out
that Lingam was alleged (by the Journal
correspondent in an amended defense) to have
written part of a 1994 judgment in a defamation
case brought by Vincent Tan against the
journalist. The judgment was alleged to have been
typed by Lingam's secretaries, corrected by the
lawyer and the final draft dispatched to the judge
on a floppy disk. Lingam was also said to have
placed the then former chief justice, Eusoff Chin,
in his debt by getting their families to vacation
together in New Zealand. Both the lawyer and the
judge had posed for pictures with their arms
around each other and with each other's families.
The photographs later found their way on to the
Internet and were widely circulated, sparking an
earlier outcry.
Unlike the strong reaction
in Pakistan when the country's top judge was
dismissed and later reinstated, there is unlikely
to be a similar reaction in Malaysia to the latest
revelations - notwithstanding the lawyers' march
on Wednesday and an emergency general meeting on
October 6. The concern and outrage may be there,
but for the most part, many Malaysians are no
longer surprised at how low the judiciary has
sunk, their expectations severely diminished since
1988.
While the call for a royal
commission was appropriate, there was no guarantee
it would achieve anything. "You can have all the
'independent' commissions in the world, but as
long as you have some influential people prepared
to use their leverage in such unprincipled ways,
then no independent commission is going to be
independent," said the academic mentioned earlier.
He predicted there would be a concerted attempt to
damp down the crisis.
Much would depend on
how far Malaysia's Conference of Rulers (the
country's nine sultans) would want to stick out
their necks to defend the judiciary from executive
interference.
Coming on the heels of a
lackluster economy, both locally and globally, and
allegations of widespread corruption, the crisis
in the judiciary is the last thing Abdullah needs.
His administration has been battered with
accusations of lethargy, inertia and lack of
vision. Given the current domestic climate and the
credibility crisis, a significant economic
downturn could have uncertain consequences and the
country could pay a price.
The next
general election is not due until early 2009 -
though many have been expecting polls within the
next six months - so Abdullah has plenty of time
to let this crisis run its course and subside.
Nonetheless, his reluctance to take decisive
action has tarnished his own credibility. His
administration has still not yet implemented a key
recommendation from a royal commission to
investigate the police - the call for an
Independent Police Complaints and Misconduct
Commission - though officials claim progress is
being made.
The fractured opposition
parties stand to gain from this crisis of
credibility facing the judiciary. But they are
unlikely to win the next general election given
the ruling coalition's iron grip on the mainstream
media and its control of development
purse-strings.
That would leave the
judiciary still in tatters. So, as much as
Abdullah may be loath to back a royal commission
of inquiry, he faces little choice if he wants to
restore the credibility of the judiciary - and his
administration. The alternative is sinking deeper
into a morass of corruption, decay and
disillusionment.
Anil Netto is a
Penang-based writer.
(Copyright 2007
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