In a criminal trial in court, th accused must put forward his version of the story during the prosecution’s case so soon as he has the opportunity to do so. If he keeps quiet about his line of defence or his version of the story and puts forth his version only after the prosecution’s case, when he is giving his evidence during the defence stage, then the law says that the judge is entitled to come to the conclusion that the accused has concocted a lie after hearing the evidence.

Here, though it is not a court per se, common sense must also prevail. Lingam must make a stand whether the man in the video is him or not. If his stand is that the man is not him, then he sticks to that line of defence and not say that he did not say this or that or that he may have been drunk. His counsel should have put Lingam’s version so soon as practicable but he did not despite being asked to state Lingam’s stand early in the proceeding.

If his stand is that the man is him, then he can have other lines of defence with that as the underlyIng premise. For example, he could say that he was only bragging to Loh and that there was in fact no one at the other end of the phone. He could even argue that the video has been cut, sliced and spliced together so much so that the truth has been distorted. Of course he has to have evidence of what he says, though the standard of proof may not be as high as that imposed on the prosecution.

The point is that he is now not committing himself to a certain stand or a certain line of defence and he is even saying that he has to wait for the results of certain tests on the video that are now being carried out to even admit or not whether the man in the video is him. It is like he is saying – right now I do not know my story…I can only know or complete my story after I have obtained further evidence.

He is clearly at a loss as to his stand and is waiting for some favourable evidence before he comes up with a story, his version of what had happened or his answer to the allegations. He is an unreliable witness, concocting a story along the way.

The truth should be immediately clear to him – either it is him or it is not him. If it is not him, then be singlemindedly unwaveringly clear about his stand that ‘that was not me at all!’. If it is him, either the video depicts the truth or it has been compromised. If it is the truth, he can still say that he was showing off to Loh. But even if he was showing off, the question remains – how did he get such accurate official secrets? If it is compromised, then prove it.

By being ambivalent in his stand, he has no creditability left as a witness and his evidence should be disregarded. In fact, if he is patently lying, the RC should stand firm with its powers to take punitive actions.

So what happens now? Even a dog must be given his day. So, just let him carry on what he is doing now; the more he says, the more his creditability as a witness goes down the drain. At the end of the day, The RC’s decision should be to reject his evidence outright and not consider any of what he had said or testified.

The RC has to come to a conclusion whether this man is in fact Lingam. The evidence of the Loh father and son team should be sufficient. Was he a man with knowledge of Official Secrets or was he a fortune teller of almost 100% accuracy in prediction? There is no evidence so far that he is a fortune teller. Hence, he had access to top secret information only ‘privy’ or available to TDM and the CJ then. Discredit Eusoffe Chin’s explanation / evidence of coincidence upon coincidence and of his lack of substance to be a judge for his inability to even brush off a pest of a lawyer, etc, the RC should be persuaded that Lingam has a close association with the top judges and by that the inference is clear that he was in a position to broker appointments and promotions of judges. With the kind of official secrets that Lingam was able to divulge and with his close association with judges etc, it is a fair inference to draw from the video and what Lingam said that he was in fact brokering the appointment and promotion of judges.

There is no need to pinpoint any culprit. We need only a conclusion that the judiciary is not well and that appointments and promotions were being ‘fixed’ by people like Lingam.

Then after that, perhaps the RC should recommend e.g. some changes in the appointment and promotions of judges, to rehabilitate or nurse back the judiciary back to what it should be.

If that is the end result, the RC would have served its purpose of exposing what has all along being denied – that the Judiciary is filled by people not based on the merits, that the PM, at least TDM, did not bother to pick the best and most honourable legal mind to be the head of or to be in the Judiciary thus culminating in the present malaise of the Judiciary. Following on that finding, we would be able to argue for a change in the system of appointment and promotion of judges.

The first thing or issue to tackle after this is the predicted appointment of Zaki to be the head of the Judiciary.

Sorry, it should be ‘credibility’ rather than ‘creditability’.

Jeff, I wonder if you are a lawyer. You awed me with your comments which I have been following. You have a very incisive mind and I hope to be able to meet you in person. There should be more Malaysians like you.

Jeffery and Darkhorse, I am fully that the proceedings before the RC is unlike a criminal trial. What I am saying is that Lingam should have taken a stand and the RC should make him take a stand or else he would have the liberty to concoct and manipulate his evidence through time to fit his agenda and his story.

The other thing I am saying is that since the RC has been formed and has started its task, though we all have our reservations about its intent and objectives, we have to make the best out of it. After all, it is the first of its kind to look into the malaise gaining momentum in the Judiciary.

So, at least, if for nothing else, it starts an enquiry of the mind as to the source of the rot, the whole exercise is not wasted.

Mahathir has told us how cavalier a way important and high ranking judges were chosen. It was all his prerogative.

Eusoffe Chin has informed what kind of or quality of a Chief Justice Mahathir had selected as the head of the Judiciary. A judge who cannot even rid himself of a lawyer who wanted to tag along with him on a family trip overseas.

Lingam tells us what kind of lack to reverence for the truth can a person of such stature show. He can go before a RC and contends that the person in the video looks like me and acts like me but I am not admitting it is me. Of course, I agree with Jeff that he has to cover himself from possible criminal prosecution and therefore we have to understand why he is not a bravura like CSL. But I was indirectly expressing my dismay and disappointment about how his way of testimony may set further backwards the state of the country – the culture of deceit and denial.

A Minister can go to the witness stand and say someone else must be drunk and sweep everything under the carpet and say that his floor is clean. Everything and everyone high up in the Malaysian society seems to have a way out of scandals and dishonourable conduct.

I am very, very flabbergasted but still with a still mind, I am asking what good can come out of all this wayang kulit?

At least to tell the common people that not all is well. In fact, most things are not well at all in Malaysia! At the same time, it is not going to help if all are shouting about the unwellness without some sober guys explaining that despite all the shallowness in the display of gallantry and despite all our disappointment, some good has been produced. Some forward motion has been initiated.

I am concerned about the possible appointment of Zaki as the head of the Judiciary. Even if nothing of significance happens to Lingam or the other people mentioned in his telephone conversation, I am thinking that if the RC concludes that there is a rot or irregularity in the system of appointment and promotion of judges, and proposes or recommends that the whole machinery and machination of appointment and promotion to high judicial offices ought to be overhauled for the sake of the wellness of our nation, not all would have been lost in this RC charade.

And I am saying it is a charade not because I doubt the sincerity or integrity of the Commisioners but more in respect of the RC’s restricted or limited frame of reference. And what does Badawi prove to me all this while when the RC is in progress? Nothing. I think his mind is all engaged in winning the next GE. Same for people like Ong Tee Kiat, Samy Vello, Nazri etc. Are they watching the progress of the RC proceedings? Are they concerned about the rot in the Judiciary which hits at the mind and soul of Malaysians and Malaysia? Are they concerned that the evidence so far elicited from Mahathir and Eusoff Chin which tends to show that lack of regularity and seriousness in or shown to the Judiciary which is the material for lack of confidence in and the ingredient for jokes about our Judiciary?

I am hoping that the RC would conclude that Lingam is an unreliable witness for not having taken a stand as he would have to if he had been before a criminal court. I am saying that the RC should adopt the common sense approach accepted in a criminal court since time immemorial.

I am hoping against all hope that this RC would initiate something positive to rehabilitate and nurse back the Judiciary to the days of Suffian, Azlan Shah and Salleh Abas. I am hoping that the RC would stop the trend of political appointments of half-baked Chief Justices who rules on and strikes out cases based on the inadequacies of margins in a pleadings or who messes up the land law in Malaysia in the tail-end of his judicial career by such absurdity as Bonsem’s case, or who talks in the air about a Malaysian common law based on Islamic law or sends delegates to study about implementing the civil law system to replace our common law or who has no qualms sitting in a Tribunal to sack his immediate superior.

I am passionately against the political biasness of judges just because they are beholden to politicians who appoint or support their elevations. I am against the appointments and elevation of judges based on any criteria other than that of merits, integrity, ability and legal prowess and a strong sense of justice, fair-play, fairness and impartiality. I am against any attempts to cow judges to submission to and dependence on and gratitude to the powers of the Executive.

I am against half-baked, half-committed, cheap and “tidak apa” judges.

But I am sober enough to know that all these reversals take time and effort and I am hoping that this RC for what it is worth is able to contribute to the reversal.