Chief Justice, Tun Ahmad Fairuz Sheikh Abdul Halim has allegedly denied that he was the person that senior lawyer V.K. Lingam was talking to in the now infamous 8-minute Lingam Tape on the perversion of the course of justice concerning the fixing of judicial appointments, court judgment and getting a Tan Sri award.

I chose the term “allegedly denied” as there is no proof that Ahmad Fairuz had actually denied that he was the person Lingam was talking to in the Lingam Tape, especially as some 24 hours earlier Ahmad Fairuz had in “black-and-white” through his special assistant Arleen Ramly written to Malaysiakini to give a two-paragraph “No comment” response to its earlier fax inquiry.

The Minister in the Prime Minister’s Department, Datuk Nazri Aziz claimed that Ahmad Fairuz had called him to deny that he was the one talking to Lingam.

Nazri’s claim is full of holes.

Firstly, how is Nazri sure that it was Ahmad Fairuz who had spoken to him by phone and not an impersonator. Has Nazri got proof that Ahmad Fairuz had denied?

Secondly, why did Ahmad Fairuz make such a denial when 24 hours earlier he had directed his special assistant Arleen Ramly to fax a two paragraph “No comment” letter on the Chief Justice’s letterhead to Malaysiakini?

Thirdly, isn’t Ahmad Fairuz capable of issuing such a denial himself and isn’t he aware of the doctrine of Separation of Powers among the Executive, Parliament and Judiciary by conducting himself in such an improper and subservient manner, subordinating the Judiciary to the Executive?

Fourthly, why didn’t Ahmad Fairuz issue the denial in the first 72 hours of the expose of the Lingam Tape by Anwar Ibrahim on Wednesday, especially as he had met the Prime Minister, Datuk Seri Abdullah Ahmad Badawi both on Wednesday and Thursday night, seated at the same table, at the Istana and the Chief Secretary to the Government’s fast-breaking functions respectively?

Fifthly, what was the purpose of the photographs of Ahmad Fairuz and the Prime Minister seated at the same table on both consecutive nights prominently published in the New Straits Times and Utusan Malaysia?

Is it to send the message that Ahmad Fairuz has the full backing of the Prime Minister, regardless of the nation-wide outcry and outrage over the Lingam Tape?

Sixthly, what is the credibility of Ahmad Fairuz’ alleged denial through Nazri? Is its believability as abysmal as Ahmad Fairuz’ earlier alleged denial through Nazri of his proposal to abolish English common law and replacement by Islamic law – which is zero?

On 5th September 2007, Nazri replied in Parliament to my earlier speech criticizing Ahmad Fairuz’ call for the abolition of the common law system and favouring its replacement by Islamic law system as being most unbecoming of the highest judicial officer of the land sworn to defend and uphold the Constitution and the Merdeka social contract.

Ahmad Fairuz had made such a call when opening a seminar on the thoughts and academic works of the late Tan Sri Ahmad Ibrahim on August 21, which made the front-page headline in the Utusan Malaysia the next day.

I had pointed out that if the former Lord President Tun Salleh Abas could be indicted and sacked for, among other things, disregarding the secular basis of the Malaysian Constitution and advocating Islamisation of Malaysian legal system, shouldn’t Ahmad Fairuz similarly be referred to a Judicial Tribunal for a similar offence?

Nazri tried to give a very “slippery” reply. He gave a flat denial that Ahmad Fairuz had ever made such a call for the abolition of the common law system saying that the Chief Justice’s speech made no such mention whatsoever.

An exchange between DAP MP for Bandar Kuching , Chong Chieng Jen and Nazri on the New Economic Policy issues which Chong had earlier raised gave me an opportunity to do an immediate Internet search from my notebook in the Chamber and I was able, when Nazri resumed his reply, to point to newspaper reports of the Chief Justice questioning the need to use English Common Law after 50 years of independence and the ensuing furore of reactions to Ahmad Fairuz’ call, particularly from the Malaysian Bar.

I also referred to the comment of another Minister in the Prime Minister’s Department, Dato Dr. Abdullah Zin who advocated that “the proposal to use Syariah Law to replace English Common Law in court proceeding should be studied thoroughly first” and that of the Prime Minister that the proposal deserved study — all evidence that a flat denial that Fairuz had made the call for the abolition of the common law was just not acceptable or credible.

Nazri blamed reporters and their poor quality reporting for the mistake. However, when I asked why no correction had been made by Ahmad Fairuz for close to two weeks of the public controversy over his call, Nazri said Parliament was the best forum for the explanation and he made one startling claim:

“Hari pertama perkara ini keluar, Ketua Hakim telah menghubungi saya untuk menyatakan bahawa itu merupakan statu perkara tidak benar yang dituliskan dalam akhbar. Saya tidak menyalahi beliau kerana dengan izin I have got bad experience juga dengan surat khabar. Apa juga yang kita nafikan yang dilaporkan mereka, tidak mendapat tempat yang sama seperti mana mereka telah melaporkan sehari sebelum itu sebab credibilitynya. Saya rasa, pada saya, it is a waste of time.”

I found subsequently that Nazri’s reply was not truthful as he himself was reported in Utusan Malaysia on 24th August 2007 as supporting Ahmad Fairuz’s call for abolition of the common law system, as follows:

Beliau (Nazri) berkata sebagai pemegang jawatan tertinggi dalam bidang kehakiman, Ahmad Fairuz sudah tentu lebih arif terhadap perkara tersebut.

Sehubungan itu, beliau menyokong saranan yang dikemukakan oleh Ahmad Fairuz supaya rujukan kepada Common Law dimansuhkan daripada undang-undang sivil diMalaysia.

“Saya percaya Tun (Ahmad Fairuz) mempunyai asas dan tahu apakan jenis perubahan yang ingin beliau lakukan terutama yang berkaitan dengan cadangan ini (mansuh common law),” katanya kepada Utusan Malaysia di sini hari ini.

This Utusan Malaysia report of 24th August 2007 debunked Nazri’s claim that Ahmad Fairuz had contacted him the very next day the report of his call for the abolition of Common Law appeared in the media to tell him that it was incorrect — as Nazri would not have gone public to endorse Ahmad Fairuz’ call as reported by Utusan Malaysia.

Up to now, Ahmad Fairuz had never denied or confirmed Nazri’s denial that he had ever called for the abolition of the common law although he knew that the public controversy over his call is still raging on — with the latest article supporting him by Dr. Wan Azhar Wan Ahmad, Senior Fellow/Director of the Centre of Syariah, Law and Science, Institute of Islamic Understanding, Malaysia (IKIM) in the Star on 18th September 2007 entitled “Time to Malaysianise common law system” while the Bar Council website forum on the subject had attracted 68 comments.

This is why I say that if the credibility of Ahmad Fairuz’ denial through Nazri with regard to the Lingam Tape is the same as his earlier alleged denial through Nazri of his proposal to abolish English common law and replacement by Islamic law, then it is of total zero value!

If Ahmad Fairuz is not prepare to personally make a categorical denial with regard to the Lingam Tape and to take the necessary steps to clear his name, then the public must conclude that there is something very rotten about the judiciary and justify questioning his competence and fitness to continue as Chief Justice.

Ahmad Fairuz’ term as Chief Justice expires at the end of next month. He had caused one constitutional deadlock when his nominee for Chief Judge of Malaya was objected by the Conference of Rulers for eight months until it was withdrawn.

Is he going to be the cause of another constitutional crisis over his application to extend his tenure as Chief Justice after October 2007? And is a third constitutional crisis in-the-making over the nomination of the next Chief Justice after Ahmad Fairuz?

The Cabinet on Wednesday must act in the best interests of the nation to restore national and international confidence in the judiciary to its heyday before 1988 — and not allow the development of a twin crisis, both constitutional and judicial.

The Cabinet must cut the Gordian Knot on Wednesday — set up a Royal Commission of Inquiry into the Lingam Tape and the judicial scandals since 1988 and the establishment of a Judicial Appointment and Promotion Commission to ensure that the Prime Minister gives proper regard to accountability, transparency and meritocracy on all appointments and promotions of judges to uphold judicial independence, impartiality, integrity and meritocracy.