“//…..Mahathir was downright wrong and irresponsible in pleading prerogative to refuse to answer questions why the recommendation of a Chief Justice who was most familiar with the best qualities of his brother judges was rejected….//” – YB Kit.

Being prime Minister, I can agree that it is TDM’s prerogative under Article 122B of the Federal Constitution to advise the Yang Di Pertuan Agong on appointment of Judges and that, subject to consulting Conference of Rulers required under Article 122B, he does not have to explain his decision to anyone.

Notwithstanding, the above the Lingam Video Clip episode has this unusual features :

a. According to NST report of 17th Jan “ former chief secretary to the government Tan Sri Samsudin Osman had testified earlier that former chief justice Tun Dzaiddin Abdullah had received a letter marked Rahsia (secret) dated Dec 5, 2001 (from TDM) approving the nomination of three individuals as High Court judges.

The three were secretary-general Datuk Heliliah Mohd Yusof, judicial commissioners Datuk Ramly Ali and Datuk Ahmad Maarop, while two lawyers who had also been recommended, Dr Andrew Peng Hui and Zainuddin Ismail, were rejected.” Commissioner Mahadev pointed out that only those privy to the letter, would have known about the two rejections. Mahadev said that “But the conversation suggests that the person talking on the phone possessed confidential information”. The question is how come VK. Lingam when allegedly discussing judicial appointments with former chief justice Tun Ahmad Fairuz knew about the rejections by TDM? Samsudin said that “we guard our information very closely on the issue of judicial appointments and promotions. Our security is very tight”. As TDM was besides Samsudin Osman/Dzaiddin the other person who knew about the rejection, this opens the question whether TDM could whether knowingly or inadvertently shared information of the rejection to anyone else that was conveyed to Lingam. Now TDM admitted that he had known Tan Sri Vincent Tan well “for many years”. And although TDM said that he only knew VK Lingam recently when he engaged Lingam for a case where Anwar Ibrahim sued him for defamation, it is however public knowledge that VK Lingam was Vincent’s lawyer for some time.

b. Same goes for CJ Dzaiddin’s recommendation of Malek Ahmad as chief judge of Malaya which was rejected by TDM : Two questions arise here : (i) what was the reason for rejection since Malek Ahmad was recommended by CJ Dzaiddin’in accordance to Artickle 122B of the Constitution? And (ii) how did V K Lingam know about this rejection that was marked Rahsia (secret)?

Because of these apparent inexplicable circumstances (which is just as consistent with allegations that there had been fixing and brokering of judicial appointments), the onus will shift and fall on TDM to explain and account satisfactorily to the public why fixing and brokering of judicial appointments with him, when he was Prime Minister, had not taken place.

TDM cannot or ought not to hide behind the veil of Executive prerogative and not account (and say he could not remember) under these seemingly inexplicable and anomalous circumstances that shift the onus of accountability to him on the questions above stated.

The events and his testimony reinforce the suggestion that we should have and institutionalise a Judicial Commission to appoint judges instead of leaving such an important function to the arbitrary discretion of one man, even if he were the Prime Minister.

Use Lie Detector Test.

This is in address of some issues raised in this forum.

1. First the question of usefulness of the Royal Commission on Lingam Tape (“RC”). Understandably some have reservations – how much would it cost in terms of public funds? What’s the benefit on balance when witnesses showed poker face and gave poor testimonies like “I can’t remember” most of the time? Some more, there are misgivings on suitability of one or two one RC members having regard to their career records with questions raised whether they should recluse themselves. Some more (to aggravate misgivings of RC’s skeptics, terms of RC narrow, with one or two commissioners trying, for the cause of relevance, to limit scope and field of questioning of witnesses and extent of disclosure; there are also allegations of some witnesses being let off easily and treated with ‘kids glove’ and why spouses/family members are not called to contradict husband’s testimonies…So what’s the use of enquiry? After all one said “the practice of fixing judicial appointments has long been an accepted practice. Lawyers would seek out their ‘favorite’ judges to hear their cases”.

2. I agree that many of the reservations and caveats expressed are legitimate. However I am of the opinion that it is premature and too soon at this juncture for us to adjudge or conclude the value of the RC and what good, on balance, it can bring us. After all, given the existing constraints, we the public were the ones who first clamoured for the govt to set up the RC in place of Haidar’s Panel of Enquiry and we should give it a chance rather than pour cold water on it.

3. My sense is that the Common Cause in purging the Judiciary off its taint is not lost, as yet, with the RC, based so far on the transcripts of what occurred in the hearing, which at this stage is still “fact finding” and calling of witnesses.

4. It is true that some questions were “kids glove” from predictably some questioners that we had doubts in the first instance whether their presence there was actually to facilitate the unraveling of the truth or to bury it. We might also suspect their impartiality having regard to their “career record”.

But I must say we should not generalize. For example RC’s commissioner Mahadev Shanker’s questioning of former chief secretary Samsudin Osman was sharp, pointed and relevant. Also no one should ignore the fact that not only govt appointed RC’s commissioners are allowed to question.

There are several interested parties and their lawyers present who are independent of govt and who are allowed to grill the witnesses. For examples Tun Dzaiddin’s lawyer Wong Chong Wah (senior litigator and partner in one of KL’s oldest and successful law firm), Bar Council’s lawyers Christopher Leong and Ranjit questioned TDM/Tun Eusoffe Chin. There are other lawyers present ready to get into action – eg Wee Choo Keong who is pressing for Lingam’s brother Thirunama Karasu to testify which the RC can delay but cannot afford denying him that opportunity. I would say that not just Malaysians but the whole world is watching this high profile public enquiry.

Yes, it is ultimately govt’s call based on RC’s findings to determine whether it wants to take action and what action to take. But govt cannot stop facts from emerging in such an enquiry where independent parties and their lawyers have opportunity to participate! Yes also some in the hearing may try “damage control” to prevent certain facts from emerging. But there are also others present balancing them to ferret out the truth within parameters of RC’s frame of reference.

5. It is to soon to make the call – on the verdict whether RC is of use or no use – because other key witnesses (eg Anwar, Thirunama Karasu, Vincent Tan & Fairuz) have yet to give their testimonies. Of course some witnesses would be inspired by TDM’s “I can’t remember” strategy but invariably some beans will spill…..As taikohtai quoted Mark Twain “If you tell the truth you don’t have to remember anything”. Even an inveterate deflector of issues/pointed questions like TDM could make a slip by volunteering info (eg he knew Lingam only recently in 2003) that painted himself in a narrow corner, vulnerable to future contradiction/rebuttal.

6. At the end of the day, it is the aggregate of testimonies from all witnesses coming out to the light of day (facilitated by questioning by lawyers for independent parties) that counts; it is these testimonies which have to be weighed in relation to consistencies and inconsistencies and their probative value and the credibility of various witnesses. The scope by which our govt could operate to contain damage is subject to what is ultimately revealed in the RC hearing in which attempts by its sympathizers to contain certain facts from surfacing may not necessarily succeed.

7. We should wait and see what happens then. It is not right at this juncture to involve and call anyone’s wife or children as witneses with the view of having them testify against and incriminate husband and father. That’s not right to undermine peoples family unity by such means when we have other methods – eg what lawyer Wee Cho Keong does in trying to get the RC to hear the testimony of Thirunama Karasu. So far, Mahadev Shanker only deferred RC’s consideration of the request till after Eusoffee Chin’s testimony. He did not say “No”. I can’t conceive how he can say “no” to Thirunama Karasu or any other witnesses coming forward to give relevant information. The RC would destroy its own credibility to reject such applications. So when there is such a public enquiry one cannot really be sure what’s going to surface now and in the near future. On balance I would think that the RC enquiry is, so far, a good thing or the best thing available given existing realities and constraints. It justifies its costs in public expenditure. Even if certain unsavoury aspects of Judiciary are alleged as common knowledge, and common place, what the RC eventually does may, in the public mind, help shorn or strip off official pretensions or claims to the contrary.

Looking beyond the immediate excitement of the RC’s proceedings into the broader spaces of the nation’s future, there is really basis for optimism.

The crux of the malaise afflicting country in different forms is the wholesale rejection of Meritocracy in everything we do.

The politicians in power have denigrated Meritocracy in favour of race and religion as a basis for considering appointments of official and important positions which determine the fate of the nation.

The problem is that these bunch of ruling politicians cannot be evicted by ballot box because, by the ballot box process, sections comprised of the majority voters support their policies based on race and religion and abhor the mere mention of the word “meritocracy”.

They have insecurities that they will lose out where merits are introduced. That is the bane of ouir national destiny. Until such mindset is changed there is but only one way the country will go – down the chute.

The biggest battle is the one for the hearts and minds of the majority esp- in rural heartland – race/religion or meritocracy? If it’s the first (race/religion) continuing to next millennium, then the country (just like diarrhea in food poisoning) will have to get very much worse before it gets better (which btw may take eons).

Even if the RC does its job professionally, ferret out the fact of corruption in Judiciary, nothing really changes without meritocracy.

The reason is plain to see. For a judge to assert independence consistent with the highest judicial traditions, he must first of all be a person of merits – merits in terms of knowledge of the law, pride of his profession and its tradition, pride in his own integrity and what he could contribute in terms of legacy of his life’s work for the community he serves.

But when a judge is selected and sits there not on the merit principle, then what criteria is left for apointing him?

Sure there is criteria of race and religion. But people competing for the same position also have the same race and religion. So what extra does one have?

Well one is connection to Power. One tells Power “give me the job” and I’ll do your bidding in all cases where Power has an interest.

OK job is given & position secured. How to execute the job of judge when one has no merits? Surely “show” of doing judicial work must go on.

Solution simple :

Delay writing judgments. Not just due to laziness or other better things to do but simply don’t know how to write!

But what about those in remand languishing in jail waiting for one’s written judgment for appeal? Solution : Get other judges to write and one just say “I concur” “I concur”….

Once upon a time we had the likes of Eusoffe Abdoolcader on the bench to help write erudite judgments for those who could not write (and often could not even think). Now no more of such specimens on further onward march of political appointments based on race, religion, creed and political affiliation rather than merits. So how again?

Solution : get friendly lawyer in private practice on the side to give legal authorities, advise and sometimes help write one’s judgment.
Its Cut and Paste job.

Now lawyer here is very willing to help to put judge in obligation. Can’t blame lawyer who is not holding public trust position. He can fetch a better fee from clients, telling them, “sure, I can win this case” because he knows the right judge will be fixed to hear his case. He does even need to know the law that well – as Anwar once sarcastically said once, a good lawyer is one who knows the right judge!

The situation is ‘lagi more “win win” ‘ if the lawyer with whom one collaborates has direct or indirect access to powers that-be.

Through him you could get Powers-That-be to give you the top position. Need his help because one has no merits to commend oneself and neither is the Power-that be interested in merits. Subservience and compliance to dictates of power is more valued.

Through the connected lawyer, one can get one’s own cronies and gang to also fill up and move up hierarchy of Judiciary. Then one’s control over the 3rd branch of government – Judiciary – is complete. Everything boleh from then on.

Decision can be given any way one’s lawyer friend wants it, for whatever consideration, because one’s ‘gang’ within judiciary beholden to one for their positions will do one’s bidding.

In turn one prostrates and does the bidding as Powers-that-be or broker lawyer wants it, quid pro quo, and everyone happy with the way the patronage system works.

From that hypothetical situation outlined of how corruption sets in, isn’t it true that the first Cause of Corruption and Mother of all Causes for the country’s steady decline is the fact that persons appointed to the top of whatever positions running the country (whether Judiciary, Ministries, Civil Service, Uniformed Services, GLCs to even Schools) are appointed on the basis of every other reason (patrtonage, conection, race, religion, creed) OTHER THAN MERITS?

When you put merits as lowest in priority how can the country be run meritoriously? Singapore’s performance surpassing us is because the government embraces Meritocracy – and Excellence. There can be no other standard in substitution.

The intractable problem is that there are an overwhelming majority, whose numbers are increasing, that are prepared to pay the price of having third and fourth rates leaders and administrators and judges and countenance the nation’s decline just so that Merits and Excellence are pushed to background, and take not the priority place of race, religion, creed and political affliliation.

Therein lies, ultimately, the root of the problem, that is not resolved and cannot be resolved.

There is no point in being frustrated with “lawyers or lawyer wannabes here” who are “happy to restate again and again the confine of the constitution, never mind all these have given us little hope and avenue for change” because fundamentally there are only two courses of action : one either upholds the Constitution on the premise that this is a society based on the Rule of Law & Democratic election/Ballot Box (even if true, the voice of majority is not always the voice of equality or justice and the Majority could use voting majority to marginalise or oppress the Minorities) or the other way is to ignore and disregard the Constitution which second other way is akin to the Revolutionary’s Way (which some say is to descend to violence and anarchy). For that other way purports to claim higher moral considerations over the Constitution and unjust laws made from it. It is the way that says the Constitution and laws are oppressive, so lets flout them (like Hindraf). It is the way that denigrates and looks down on piecemeal negotiation and actions that supposedly leads to no where and no justice. It is a way of the impatient that wants to tear the whole political system and fabric down wholesale to be replaced by an Utopian blueprint. It is the call of Ernesto Che Guevara; the way of Robespierre in the French Revolution that led to the Reign of Terror; the Lenin’s way that led to the Russian Revolution, the way of LTTE separatist Tamils in Sri Lanka and those of Mindanao Muslims in South Phillippines and that of Castro. To be fair, some revolutions in history have brought good and justice – like the American Revolution against the yoke of British Colonialism or that of the Indians by Gandhi’s Civil Disobedience against British colonialism.

All revolution involves some degree a call to arms and begets violence in return. Under present civilised norms and international law people taklk of democatic evolution and change – not revoluntary change disregarding Constitution and law. Read Karl Popper’s book on “Open Society and its Enemies” for more on this two conflicting approaches and their dangers.