Breaking the Disquiet
A recently released amateur video has once again put the Malaysian judiciary under fire. This time, the Bar is fighting back
By Chris Chew
“How are things with you—everything is okay? No, don’t worry. You know sometimes Tan Sri Vincent said that half the time we are talking about judiciary rather than doing the work. But if I don’t do this part my work will be useless.”
The hall is buzzing, but it’s a muted buzz. Approximately 250 people are all transfixed on a muddy yellow video playing on the projector screen.
“Correct, correct, correct.”
“Even the press ask… You said I work very hard, what can I do? I leave it to God. That’s the best answer, Datuk, that you can ever give.”
There are random giggles here, occasional sniggers there. But with equal frequency, there are gasps that punctuate the air.
“Not for our own interest. We want to make sure the country comes out well.”
“Correct, correct.”
Fade out. The video goes off, and heads look up. Many in the crowd have sacrificed their Saturday afternoon to sit in a Kuala Lumpur hotel ballroom to hear what some panelists have to say about the state of Malaysia’s judiciary. Among the panelists are former Deputy Prime Minister Anwar Ibrahim and former Transparency International Malaysia presidents Tunku Abdul Aziz Ibrahim and Datuk Param Cumaraswamy.
The moderator invites the first panelist, Bar Council Secretary Lim Chee Wee, to open the afternoon. Lim takes to the podium, adjusts his notes, and stares at the hall. His countenance is steady, but there is no mistaking that what has just been shown is still replaying in his mind. Not to mention many others.
“It’s the sixth or seventh time that I’ve watched that,” sighs Lim. “And it’s just… surreal.”
He pauses. Sighs again. Finally: “I don’t know whether to laugh or to cry at the state of our Malaysian judiciary.”
* * * * *
Lim’s despondence is one that has surely been echoed by the 12,500 lawyers and judges that make up Malaysia’s Bar Council. And rightly so. Not only has it triggered nationwide furore amongst the general public over the integrity of the Malaysian legal system, it has raised questions about whether any lawyer or judge can ever be trusted again.
The eight-minute edited video clip (which can be viewed here) certainly doesn’t warrant repeat viewings on the merit of its production values. But its content is quite another matter. Allegedly shot in 2002 and released on 19 September 2007 by Anwar Ibrahim’s political party, Parti Keadilan Rakyat (PKR), it shows senior lawyer Datuk VK Lingam talking to an anonymous person about fixing the appointment of senior judges to key positions. It also alludes to the possible appointment of then-Chief Judge of Malaya Ahmad Fairuz Sheikh Abdul Halim as the Chief Justice, the highest post in the Malaysian judiciary (Ahmad Fairuz eventually took that post in 2003). It is further alleged that the person on the other end of the phone is indeed Ahmad Fairuz himself.
All that legalese means squat to the man on the street; what the video unquestionably declares, however, is that shady dealings took place in a profession whose practitioners are supposed to be promoted on the basis of their ability to uphold justice and equality, not the number of cabinet ministers they have on speed dial. The frames might be pixelated, but the message is papercut sharp: pray you will never ever need a lawyer to help solve your problems.
UNDER THE HAMMER
Not that this had been in serious doubt over the past 20 years. Malaysia’s judiciary has sunk to such putrid levels that it is almost implausible to believe that it was once regarded as one of the most highly regarded systems in the Commonwealth, with judges around the region frequently citing cases from the country.
So how did the proverbial fall happen? Many point to 1988 as the beginning, when Lord President Tun Mohamed Salleh Abas and two other Supreme Court judges were sacked by the Government, led by then-Prime Minister Tun Dr Mahathir Mohamed. Subsequent amendments to the Constitution only afforded powers to the courts as granted by Parliament.
It was a traumatic time, not just for the judiciary but for Malaysia’s journey towards democracy, and launched a series of events that would gradually whittle down the legal system from a trusted decision-making entity into an unreliable, laughable puppet show. In 1996, an anonymous ‘poison pen’ pamphlet made 112 allegations about widespread corruption in the legal system that crept right up to Chief Justice Tun Eusoff Chin. When it was revealed that High Court Justice Syed Ahmad Idid had written the pamphlet, he subsequently resigned and the charges were quickly dismissed. In 1998, a picture of Eusoff Chin and VK Lingam on a family holiday in New Zealand surfaced on the Internet (see below), further suggesting an inappropriately close friendship between the Chief Justice and a lawyer who was representing bigwigs at that time before Eusoff’s court. Chin brushed aside the photo, claiming that their holiday schedules were purely coincidental. He maintained his claim, despite evidence emerging that showed that the two of them had flown on the same plane, in the same class, from Singapore to Auckland.
The decay was most widely evident in the conviction of Anwar Ibrahim on sodomy charges in 1998. Yet even after that, numerous opportunities arose for the Bar Council to right the wrongs of the past. In 2000, the Bar called for an extraordinary general meeting (EGM) to discuss the state of the judiciary and propose for Eusoff to be suspended in light of his numerous acts of corruption. Incredibly however, it was barred from doing so by two court decisions, backed by a statement from Tun Dr Mahathir that the EGM was “politically motivated”.
The byproduct of this descent is manifold. Foreign direct investment has tumbled from US$4.62 billion in 2004 to US$3.97 billion in 2006 (during the same period, Indonesia’s FDI grew 177% to over US$5.2 billion). Meanwhile, Malaysia’s ranking on Transparency International’s Corruption Perceptions Index dropped 10 spots from number 33 in 2002 to 43 this year.
And public confidence? The most important, if hardest to measure, index has never been lower. There exists a growing uncertainty amongst ordinary citizens as to whether they can get a fair trial in the courts. “The legitimacy of any institution depends on public confidence,” says Tunku Aziz. “And [over the years], the Malaysian judiciary has suffered a colossal blow to its reputation.”
Unsurprisingly, public reaction to the video has been strong, and appropriately loud. Many have demanded investigations into the allegations, along with a call for Ahmad Fairuz to be disciplined (the Chief Justice has refused to comment on the video, although Datuk Nazri Abdul Aziz have vouched that he is not the person on the other end of the conversation). On 25th September, Deputy Prime Minister Datuk Seri Najib Tun Razak announced that a three-man panel consisting of highly respected members of society would be formed to investigate the video’s authenticity.
It’s effort made, for sure, and the action was immediately recognised by the Bar as “an essential first step”. But how much it reveals the Government’s dedication to resolving this matter remains to be seen. The formation of a three-man panel with no legal authority or impunity leaves it woefully inadequate to make any substantial difference. And as PKR president Dr Wan Azizah Wan Ismail said in a statement to Malaysiakini, “How can a video that implicates members of the Cabinet be investigated by a panel appointed by and reporting to the Cabinet?”
More pertinently, a panel investigating the authenticity of a video conveniently skirts the real issue, i.e. an investigation into the authenticity of the content. The number of high-profile personalities namedropped by Lingam casts an ominous sense that bringing any one of them to justice will take months or years of complicated legal wrangling, not to mention a severe shuffle of the entire judiciary.
RISE OF THE BENCHWARMERS
Which is where the Malaysian Bar Council comes in. Many would expect the country’s lawyers to cower in embarrassment over this latest smudge to their already muddied vocation. Not so. Lawyers have stood up to correct the perceptions forged by a minority of rogue colleagues. “Good judges do not fear public scrutiny,” says Param. “Good judges fear the presence of crooked judges.”
First, the struggle has begun online. A petition addressed to the Yang DiPertuan Agong has been uploaded for Malaysian citizens to sign up. The petition has also been added to Facebook via a group called ‘Save the Malaysian Judiciary’, with a goal to obtain 5,000 signatures to present to His Majesty. On 6th October, an EGM is being called to once again to discuss the judiciary and whether any action should be taken on Lingam.
And then there was the march. On Wednesday 26th September, 2,000 lawyers—some from as far as Penang, Johor and Malacca—joined with members of the public to embark on a two-kilometre March for Justice, walking from the Palace of Justice to the Prime Minister’s Office in Putrajaya. Despite the presence of riot police, sudden downpour and the fact that many of those present had to walk an additional five kilometres because some of the chartered buses were stopped by police, the air of dogged defiance was evident. “When lawyers walk, that means there is something wrong,” Bar Council chairperson Ambiga Sreenevasan said in a speech that day. “We want changes in the judiciary.”
The group arrived at the Prime Minister’s Office around noon, and proceeded to hand two memorandums to the Prime Minister’s Department. The first memorandum calls for a Royal Commission of Inquiry to look into the contents of the video clip, and the second seeks to set up an Independent Judicial Commission made out of representatives from various independent parties, that will make recommendations to the Prime Minister regarding the promotion and appointment of judges (such a commission already exists in six Commonwealth countries). “The numbers on that day serve as a message to the Government,” says Lim. “We are very concerned; we want to see the Government take this seriously.”
The Bar’s involvement could not be more timely. That the video was released by an opposition party, fronted by a former Deputy Prime Minister, before general elections (rumoured to be announced by the end of the year) screams of artful but nonetheless snarky political maneuvering. Politicians on both sides of the fence remain the least trusted professionals in the world, and cries for justice can easily be drowned out by claims that releasing this video at this opportune time is no more than a cheap shot by equally conniving types. In other words, the video’s proponents are potentially no more trustworthy than the people they accuse.
But lawyers—now there’s another front altogether. The surfacing of the video gives the Bar Council an opportunity to do something tangible about the judiciary. The actions of Lingam and other rogue personalities have cast a darker shadow over the legal profession, but they have also prompted the Bar Council to fight back in defence of its name. “Do all members of the judiciary [deserve to] be tarnished by the same broad brush?” says Lim. “No. The majority… are honest, hardworking people.”
One wonders, can anything truly tangible emerge from all the proactivity? Demands for a full-fledged inquiry into and potential overhaul of the system are ambitious and perhaps unrealistic requests. Even a band of marching lawyers, despite serving as a symbol of solidarity in white and black, is not unheard of in this country, having appeared twice, first in 1981 to protest the Societies Act, and then in 1998 to support Anwar Ibrahim’s lawyer. In both instances, the end result was an inspiring public show of defiance, but little else.
Truth be told, not all lawyers are tooting the same horn. The upcoming EGM requires 2,000 members to be present to meet the required quorum; many are likely to sign their names, partake in the free food and then leave. And then there are those who frown at all the nationwide attention. “I was sick the day of the march,” says a contract lawyer who wished to remain anonymous. Quickly, a wry smile creeps on his face. “But I think if I wasn’t sick on that day I still wouldn’t have gone. There’s no point. Everyone knows that all this under-the-table business is going on. Why must they bring it out to the public?”
Like it or not, it has come out, and all eyes are once again on the Bar. And to their credit, the Bar fights. Its uphill journey promises to be one fraught with uncertainty, but it is fueled by the beckoning waves of dignity, and the fantastical ideal that Malaysia’s judiciary might one day exist independent from the government. “Judicial independence is not a right of judges,” says Param. “It is the right of the people, the consumers of justice. It is the lifeblood of democracy.”