Let’s evaluate the main issue here, ie. how Tun Ahmad Fairuz’s departure will impact on the relative positions of the government to sweep matters under the carpet vis-à-vis the calls by Civil Society, the Malaysian Bar and a significant portion of the Malaysian intelligentsia for judicial reform based on the premise of an existing judicial crisis that is neither resolved or defused by Fairuz’s retirement.

Let’s further assume that the government will take the following course: in 5 days time, Haidar Panel would complete its finding ie no witness means tape authenticity is not established. To buttress that, maybe Cyber Security Sdn Bhd would certify the 8 min Clip examined by it is not authentic.

To take this course the government faces a major obstacle. The Haidar Panel/ Cyber Security are basing their findings in a week’s time based on an edited 8 out of a 14 minute video clip. This means that Datuk Seri Anwar Inbrahim (DSAI)/PKR are still in greater control of this shadow play with the powers-that-be. One can’t make a determination of the inauthenticity of a video clip based on 8/14 part of it! The other side controls the timing of when to release the 6/14 portion of this clip and how damning is the disclosure of 6/14 is unknown by the government for so long that it has not got a hold on that! Obviously DSAI will release it once election is called! And he might get foreign forensics to contradict the local findings on issue of authenticity. Then what?

The government also banks on the fact that no matter how damning the disclosure of the 6/14 of the video clip is, it will not detract from BN/UMNO’s electoral support. (This remains to be seen). But so far the government’s logic is that it is fanciful to talk of judicial crisis when the average Malaysian, or at least 80% of the electorate have never heard of the Rule of Law, much less the independence of Judiciary based on Baron de Montesquieu’s theory of separation of 3 branches of government in his Spirit of the Laws (1748). So what adverse impact could this “disquiet about our judiciary over the past few years” that Sultan Azlan Shah spoke about possibly have on the BN’s electoral popularity? That is why de facto Law Minister, Datuk Seri Nazri Aziz obliquely countered HRH’s statement by telling reporters later that the erosion of public confidence in the judiciary is a matter of perception. “That’s their perception which may not necessary be mine. What is (meant by) ‘public’? Does it mean 1,000 to 2,000 people or the whole nation? We respect opinions but the government has its own perception so we agree to disagree,” he said.

Nazri however may have forgetten the other fact – that the 80% majority, whilst effective in delivering the electoral votes, have less impact on general public opinion that in turn may influence the 80% views. It is the vociferous and articulate 20% minority comprising the stakeholders of the Justice System – the Civil Society, Opposition Parties, the Malaysian Bar Members – that are effective in influencing public opinion. It is trite that all changes in any society are generally led by the vocal minority than the silent majority. Whether a “crisis” exists within Judiciary depends on whether this educated and articulate group, which knows most of matters pertaining to the administration of Justice, perceives there is a crisis. It is not whether the 80% perceive there is a crisis as they neither know nor care much, in constitutional terms, of the meaning and implications of Rule of Law or Judicial Independence! It may well be a grave miscalculation to underestimate the influence of this minority group and to treat their demands and grievance with disdain and nonchalance. One does so at one’s peril.

It would be safer to accommodate the concerns of this group half way if not all the way. So far the allowing of Fairuz to fade away under a cloud of scandal is not enough : to pacify this group even half way, there must be a transparent and independent determination whether the events of judicial fixing were true or not. And this can only be done with the establishment of a Royal Commission appointed by the Yang Di-Pertuan Agong under the Commissions of Enquiry Act, 1950 and reporting directly to His Majesty with full powers to subpoena witnesses and offer immunity of testimony. To keep on denying a Royal Commission in preference towards a toothless Haidar Panel is to engage in a shadow play that persistently reinforces the concept that the government is more interested in preserving the reputation of its current or past tainted judicial officers that the concerns of the rakyat for justice that must invariably come from independent judges.

Hopefully, such a concession to a Royal Commission will pave the way to a smoother eventual confirmation of Tan Sri Zaki Tun Azmi as Chief Justice in 6 months time, desired by the Powers-that-be. (It is understandable that the Powers are of a cast of mind that our top judge must reflect the appropriate balance to be kept between majority concerns for independence/ability and government’s concerns that he is at least not anti establishment – so Zaki would be a comfortable choice.) The objections against Zaki’s appointment (past legal advisor to UMNO and domestic problems) are valid but they can still be managed and overcome if the Royal Commission is conceded.

I think what basically concerns the government is that once such a Royal Commission is established, it may not be able to control its findings. If its findings confirm that the courts are/were indeed packed by some persons beholden to the Executive in exchange for appointments, it will open the Pandora box of public demands for an immediate overhaul and revamp of judicial appointees and constitutional amendment favouring the establishment of Judicial Commission to appoint judges in lieu of selection being vested only with the PM on CJ’s advice with the formality of Rulers consent.

This is something that they are not prepared to give up control of.
This is where the intractable tussle lies.

Civil society, opposition and members of Malaysian Bar are, by majority, of the position that in order for the Executive to be stable, fair, predictable and principled, it must stop its interference and influence over the judges of the land who are the only safeguard for justice and fair play to be meted to the Rakyat – both between themselves inter-se as well as between government and citizenry and their rights.

This is where the crux of the ultimate issue lies ….