The question: is it scandalous that Tun Ahmad Fairuz had not come out publicly to personally and categorically issue a denial of his involvement in the Lingam Tape scandal?

Lord Denning once said, “ It is the right every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in the court of justice. They can say that we’re mistaken, and our decisions erroneous, whether they’re subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication”.

Since then it has been a common law precept that in the interest of the dignity of the administration of justice and prevention of undue influence in litigation, it is generally considered undesirable for a judge to respond to criticism of his own actions by appearing in the news media. A judge is expected to be “above the fray” unaffected by the dust of conflict and controversy in the public arena, so to speak. It is for the other independent stakeholders in the administration of justice like, for example, the Bar Council to defend a judge’s conduct, criticized.

Fairuz is, paradoxically, relying on this common law precept as a camouflage for his silence; he has depended on (in our YB Kit’s words) “Datuk Seri Nazri Aziz to bat for him and claim that Ahmad Fairuz had phoned him to deny that he was the one talking to Lingam”.

I don’t think that the Denning’s common law policy of judges keeping silent and staying above public controversy applies in this particular instance to exonerate Fairuz from the need of a direct vigorous public denial.

The reason: The policy that a judge should not respond to public criticisms only applies to public criticisms of the way a judge conducts himself or makes judicial decision in court as part of a day’s work in court. A judge cannot be seen to be arguing with the public how he sifts the evidence, determines the facts, applies the laws and arrives at his judgment or else there will be chaos. That is why Lord Denning spoke of criticisms that “we’re mistaken, and our decisions erroneous, whether they’re subject to appeal or not”.

Now the controversy of the video clip has nothing to do with an onest day’s work in court! It has everything to do with what goes on behind the scenes after the day in court, in the privacy of private conversation from the home, on a subject, not about whts going to happen tomorrow, but what should happen about judicial appointments in months or years from then, and how a person close to the Executive could help broker these appointments! This is, with all due respect, a different ball game!

And the so-called stakeholder on whom a judge relies to vindicate his conduct was not the independent Bar or the Bar Council but a senior member of the administration/executive!

Surely the very considerations underpinning the ethical restrictions against the judge’s engagement in public controversy – ie. to uphold the integrity of judiciary and prevent executive interference – are themselves immediately subverted when a spokesman for the Executive came out to speak on behalf of a judge in defence under such circumstances!

The allegations behind the video clip seriously undermine public confidence in the principle of judicial independence.

If there are limited instances in which it would be most appropriate for a judge to break silence, to respond directly against such allegations in order to restore public confidence in the institution of judiciary, it will be this occasion that Fairuz should rise up to but until today has unfortunately failed to do so.

To the extent that he has not dispelled the onus of public allegations, Kit is making entirely fair comment to say he has forfeited the right to seek an extension of office even for one day.

It would be scandal compounding on scandal for the administration to grant such indulgence.

Nor should it foolishly be ever attempted.

The Rulers are unlikely to consent to such extension, assuming their views are constitutionally required to be canvassed for such an extension.

Besides, many Malaysians will have none of it, suspecting that an extension under the cloud of a scandal only vindicates the truth of allegations relating to the video clip that it is “pay back” time!