Malaysia's Judiciary Crisis!

From AsiaTimesOnline 26th Sept 2007

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.