Mahadev Shanker said “Don’t throw the stones at us until we have finished our enquiry…”

This is strange, to say the least, because it is the so-called Special ‘Independent’ Panel of 3 who invite the stones to be thrown at it by openly admitting “We have no power to administer oaths, no power to compel witnesses to come forward, no power to commit anybody for contempt, no power to protect witnesses ” which was highlighted on the front page of New Straits Times of 4th October – an admission that establishes its inherent limitations to ferret out and ascertain the truth of the video clip, since obviously Shanker’s declaration of conscience, good faith and honesty would not suffice in view of (1) Haidar’s chairing such a panel in spite of being allegedly implicated in the ignominious judicial crisis in 1988 of which his best rebuttal was only “I don’t want to enter into an argument. There is no point, there is no end to it” and (2) Haidar’s saying that the Panel had no plan to call the principal actor of the drama, Lingam, to testify before it whether the video clip was authentic!

If there was an attempt to white-wash the scandal at damage control, the appointment of such a “toothless” panel – that even declares publicly its own limitations in getting evidence and thus constraints at ascertaining the truth at the outset – is a joke and farce of considerable proportion.

It would have been a better pretext for the government to advise the Yang di-Pertuan Agong to appoint a Royal Commission and try to emplace in such a Commission, members of some public credibility who either are UMNO members (eg Datuk Said Ibrahim or Tun Musa Hitam) or who, at the very least, are not anti-establishment or have any antipathy towards the ruling party.

Come on lah, the wide powers given under S. 29(c) 1997 (as amended) of the Anti Corruption Act 1997 were supposed to facilitate the ACA’s officers to investigate officials or persons suspected of have committed corrupt acts within purview of the Act and NOT their whistleblowers and informers!

It is true that forensics can establish authenticity of such a clip even if the maker of it and the circumstances surrounding its making are not known. But this would not give the entire true picture. It is also the first rule of evidence giving that when a piece of evidence is presented, especially one that creates grave consequences, the maker of it should (unless he is dead or not around or there exist other compelling reasons why he should hide away) come forth to confirm that he was the one who made the evidence and explain the circumstances surrounding it in greater detail. Now if there is immunity granted, there’s no compelling reason to hide away. All this has nothing to do with the other aspect – the necessity to investigate, interrogate and take statements at the same time from those implicated in such a videoclip. They cannot be spared just because they are well connected or hold high office because the conventional wisdom, often repeated by our leaders (even if some of them may not mean it) is that no one is so high to be yet above the law. To give the impression that one is hounding the whistleblower and sparing the high and mighty is to invite public distrust in the investigative methods and the motives behind and the administration of law and justice in general.

Actually the relevant section for immunity under our revised Anti Corruption Act (as mentioned by Anwar himself) is section 53(3) which provides that every person required to give evidence under the Act “who, in the opinion of the court, makes a true and full discovery of all things as to which he is lawfully examined, shall be entitled to receive a certificate of indemnity under the seal of the court stating that he has made a true and full discovery of all things as to which he was examined, and such certificate shall be a
bar to all legal proceedings against him in respect of all such things”.

‘What is the Panel investigating here?? Infringment of copyrights and piracy??’ – that’s a good question.

Mahadev Shanker being former Court of Appeal Judge naturally thinks in terms of law relating to evidence, which he had said before as – though strictly not applicable to the panel’s deliberations – forming a guide. To him, the ascertainment of authenticity of video tape clip would require its maker to come forward with primary evidence to say, “yes I made it”.

If you think about it, to video tape and catch on camera someone engaged in conversation about fixing judicial appointments (in his house) is not the same as doing the same thing to unsuspecting ladies in the toilet or bath! The latter is an offence but the former is not. It is not as if its something captured in the course of work in the office whether private or government sector in which Employment Contract or General Orders or official Secrets Act has been breached. Also the one who did the video clipping might be an audience but certainly not an accomplice to the judicial fixing and position broking (assuming the latter is crime, which itself is a matter of contention). If it was a kind of investigative journalism for disclosure for public interest, then why not disclose it then in 2002 rather than now? Was there blackmail? There is no suggestion. In fact the excuse for delay is (1) then it was TDM at helm, no regime change yet and (2) clip was to assist Anwar in his predicament if he required it in his court appeals. Also if mere filming attracts some offence like for example sedition for undermining public confidence in the judiciary, it will be the ordinary police – and not ACA – moving in to look for the whistle blower and threatening persons harbouring him. The whistle blower is not implicated in corrupt acts per se but just filming/video clipping a possible corrupt act taking place conducted by others. So why does the ACA move in? Here the Government will be able to argue, with some force, that the ACA moves in because it is genuinely investigating whether (1) video clip is genuine and (2) if so whether there is corruption implicated in events caught in clip, and that (3) all criticisms that ACA moves in to harrass whistleblower and push the issue of judicial fixing under the carpet are therefore baseless.