Assuming a witness is not otherwise admitting that he is suffering from amnesia or Alzheimer diseases or senility, the ‘I don’t remember’ response is the witness’s way of saying to the questioner that the details that he is being questioned are of a nature not significant enough to have made an impression that survives the effluxion of time for memory retrieval, especially in relation to the importance of his work and the many other relatively more important things and events to remember.

The technical term of such a tactic of ‘I don’t remember’ is called ‘avoidance resistance’ by the witness.

The witness in all probability has been coached by his lawyer on how to use this strategy, the advantage of which to a question that one does not want to answer truthfully is to be non committal about a “yes” or a “no” and having to subsequently elaborate on either of them, and if the answer was not the truth, to be subsequently accused of, caught or proven lying.

On the other hand, although ‘I don’t remember’ is not favoured as good testimony, yet it elicits a certain measure of benefit of doubt that maybe the witness truly does not remember and therefore such a response becomes grudgingly an acceptable response in any enquiry.

So for the on-going RC enquiry, if the ‘I don’t remember’ tactic is going to be widely resorted to, the all important question is what can be done about it – and what are the counter cross examination strategies to tackle an evasive witness who pleads ‘I don’t remember’ when he does remember everything with crystal clarity?

That’s the challenge!

The first thing is not to stop questioning and move on after the witness said ‘I don’t remember’.

Questioners should be more persistent and not let such a witness get away with it.

After a ‘I don’t remember’ response, keep circling around the matter and the line of questions from a new angle. Wear the witness down by refusing to give up. Make it clear that the questioning won’t end until the questioner gets full, truthful, and complete answers in what he could remember about other related matters. Make the witness volunteer other related information to be used later to prove inconsistency. I am sure Anwar’s lawyer Puraven, Dzaiddin’s lawyer CW Wong, Bar Council’s lawyers Christopher & Ranjit are seasoned court room cross examiners with a bag of cross examination strategies to counter such evasive answer as ‘I don’t remember’ or ‘I don’t know’. :) In the public’s interest, don’t give such an evasive witness an easy time. What is at stake here is accountability of executive actions and decisions in general and the criteria of selection of judges in particular bearing on the all important issue of Independence of the Judiciary.

Actually Libra2, you have raised a very interesting issue.

I believe that lawyers/counsels like those representing independent witnesses like Anwar, Dzaiddin and the Bar Council have much latitude and scope to take evasive witnesses to task by relentless cross- examination.

They should do their duty as counsels fearlessly in the finest tradition of the Bar to ferret out the truth. Their client in this enquiry is the Malaysian public; the stake is the independence of judiciary!

If I were the lawyer, I wouldn’t be too concerned about doing my duty of questioning in more aggressive a manner.

I would argue with the Commissioners on why my questioning is relevant or ought to be allowed or continued.

If I were lawyer in continuous legal practice (as counsels for Anwar, Dzaiddin and the Bar Council invariably are) I have the advantage of being more in touch with the law on evidence and relevancy and the way of cross examination and therefore ought to have an edge in taking the Commissioners on and engaging them on these issues.

How far can the Commissioners take me on?

Besides Former Chief Judge of Malaya Tan Sri Haidar Mohamed Noor has been appointed chairman of the Royal Commission of Inquiry (“RC”) there are 5 other members : former Chief Judge of Sabah and Sarawak Tan Sri Amar Steve Shim Lip Kiong, former Court of Appeal Judge Datuk Mahadev Shankar, former Solicitor-General Puan Sri Zaitun Zawiyah Puteh, Academician-Historian Prof Emeritus Datuk Dr Khoo Kay Kim and Datuk Abdullah Sani Ab Hamid (director-general of the Legal Affairs Division in the Prime Minister’s Department) (as commission secretary).

One notes Khoo Kay Kim has no legal training.

Whilst the rest had, they are “out of practice” and in any case except for Haidar and Mahadev Shanker, the rest have not been active in the deliberations so far….(Aiyah can argue with and take Haidar on when it comes to law but one has to be more careful with Mahadev Shanker who is still very much in touch and pretty sharp judging from the way he questioned former chief secretary Samsudin). The saving grace is that Shanker is quite open and knows the game. From transcripts he appears to know clearer the difference between what is right or wrong, relevant or not relevant , and tends to give the cross examiners more latitude. My sense is that so far the other commissioners tend to take his lead as he seems the more capable in this field.

It is true that (under Commission of Enquiries Act), the commissioners can punish any one in “contempt” by a fine not exceeding RM100 (this is chicken feed!) or to imprisonment for a term not exceeding three months. (This is nothing lah, doesn’t mean they dare to sentence you to max 3 months! )

Section 14 of Commission of Enquiries Act defines an act of contempt as any act of disrespect or any insult or threat offered to the Commissioners or any of them while sitting in Commission or at any other time and place on account of his proceedings in his capacity as a Commissioner.

However, arguing (even vehemently) with the Commissioners on the relevancy of or more latitude for questioning is one’s duty as counsel and by no means constitute “insult or threat” offered to the Commissioners constituting contempt!

At the end of the day we cannot control what the Haidar led RC would recommend to govt based on RC’s findings; we also cannot control how the govt would act on RC’s recommendations.

No that is not our focus – what the RC or Govt decides because we cannot control their decision.

The main value of the highly publicised RC Hearing then is what skeletons the hearing could ferret out and expose to light of day from the closets of power for public knowledge, here and now!

I therefore call on all counsels to do their duty fearlessly. Don’t let the witnesses to be evasive and get away by “I can’t remember”. It makes a mockery of the RC : no point of having it when all crucial witness for 90% of their testimonies say “I can’t remember”!
No skeletons will come out and the closet remains close, so what’s the point of the RC at great public expense?

“Those who know Lingam do not need convincing” -undergrad2 .

On the flip side of the coin, the other moral to be drawn by those who serve and benefit from Power, discretion is imperative esp in todays word of camera phone/recording, CCTV, Internet. It does not pay to be boastful even in the guise of marketing one self for being “well connected”. You’d notice 2 top Judicial men & even the PM were dragged into the enquiry because of one man.

As I said earlier the RC, for whatever it is worth, hinges on what is exposed to the public in its proceedings. We can’t bank on what the RC eventually recommends; neither can we bank on what the govt would do on its receipt of RC’s recommendations. (Status of 125 recommendations by royal commission on police is an example of our problem). So whatever good or bad from the RC instituting such a public hearing is here and now. The time of accountability for these guys, albeit limited, of their past actions should begin now. Grill them properly.

When asked whether he was the man in the video, Malaysiakini reported VK Lingam said: “It looks like me, it sounds like me.” He said he would not go beyond this until the original video clip was produced. Why is he pussyfooting around like this? He could not even say “yes” or “no” looking at the video. Reminds me of Clinton saying that fellatio was not sex!

How is this reconcilable with what is next reported of what he said : “Lingam also denied that it was Ahmad Fairuz – who later became chief justice and retired two months ago – was the person on the other end of the telephone line. “I don’t know WHO I WAS SPEAKING TO but certainly I WASN’T speaking to Ahmad Fairuz because I never had his mobile number and he didn’t have mine either.” Isn’t this an admission that he was the one in video clip?

Real loyar buruk’s talk! Think everyone is an idiot or what!

//But you gotta understand what other defense is left to him except to deny it was him…. The incriminating nature of the contents of his conversation is so serious that he may not be able to provide an explanation without incriminating others and as to the existence of a conspiracy// – Undergrad2. //The issue is that of identity. The authenticity of the video is central to the issue of identity// – BlackEye.

I agree that that he has no other defense except to question the authenticity of the video, central to the issue of identity – and the case against him.

Many within the profession already knew the close relationship he had with judicial top guns.

Though that may be irrelevant and unproven, even commissioners appear skeptical at the bare faced denial of the undeniable. Based on transcripts Mahadev Shankar already gave cue that the commission would save a lot of time if Lingam could provide direct answers.

Shankar said he “was perplexed” because Thayalan had suggested on Monday that the clip and transcript could have been doctored.

On issue of authenticity, Mohd Zabri Adil Talib, a senior digital computer forensic analyst with Cybersecurity Malaysia, charged by ACA to analyse the video frames as to whether there were tampering or editing, already gave scientific evidence that the clip contained no sign of editing. Voice identification conducted in Madrid, Spain last week also confirmed that it matched his voice.

Businessman Loh Mui Fah gave direct evidence that he was the one talking on the mobile phone. Loh’s son Loh Gwo Burne gave evidence that he too was present and was the person who videotaped a telephone conversation by Lingam. It is not hearsay. Their testimonies were not shaken at all when cross examined by Thayalan, Ligam’s lawyer.

Against all this, even he admitted that the person in the clip looked like him and sounded like him. Lingam himself testified that “I don’t know WHO I WAS SPEAKING TO but certainly I WASN’T speaking to Ahmad Fairuz because I never had his mobile number and he didn’t have mine either.” This is an indirect admission that he was the one on the phone in the clip.

Politician and lawyer Wee Choo Keong has already applied for Lingam’s brother, V. Thirunama Karasu, to appear as a witness. Wee told Royal Commission that “Karasu’s testimony is relevant to show the close relationship between V.K. Lingam and (former chief justice) Tun Eusoff Chin.” Probability is that RC would not deny Karasu his day in the hearing to implicate his brother.

There are many other lawyers representing parties independent of govt waiting in the wings to grill him. For examples Parti Keadilan Rakyat and Anwars Lawyers (M. Puravalen, Oh Choong Ghee, Ravindra Nekoo and Yusmadi Yusoff}, former chief justice Tun Mohamed Dzaiddin Abdullah’s lawyers Wong Chong Wah and Khoo Guan Huat, Loh’s lawyer Americk Singh Sidhu, and Robert Lazar, Yeo Yang Poh, Christopher Leong, Ranjit Singh and Razlan Hadri.
representing the Malaysian Bar. Then there are lawyers Chan Weng Keng, Haris Ibrahim and Lim Fang Say appearing for three non-governmental organisations yesterday — Aliran Kesedaran Negara (Aliran), the National Human Rights Society (Hakam) and Suara Rakyat Malaysia (Suaram). Is he going to survive cross examination and appear credible in the end?

As a legally trained person, I can understand that he would use every technical rule in the book to try get off the hook.

At the same time a man like him should also know when the evidence is overwhelming, when to cut loss, and when further effort to save ones skin along the lines of challenging authenticity/identity is denying the undeniable and defending the undefensible, and its just not going to work, and that being the case he must weigh the options to evaluate whether it is worthwhile to take a different track than the course presently pursued that makes the hearing a compounded farce and invite nothing but further ridicule and public calumny unto oneself.

Of course I can’t speak for him, and he’s not me.

Speaking of what different track (mentioned in preceding posting), if I, hypothetically, were placed in similar position, evaluating the evidence arrayed against me, I would just own up, salvage whatever left of the tattered honour left in the name of Accountability along the course of Dr Chua Soi Lek.

I ask: What’s the worse that can happen? What crime have I committed?

The only thing is a severe breach of professional ethics and the worse that can happen is disbarrment and being struck off the rolls.

But by now I should be wealthy enough not to depend on law practice for a living. I would even challenge the Bar Council if I were struck off the Rolls. I would argue a suspension, fine would be proportionate punishment to such a severe breach.

Afetr all, the breach of ethics here is not one like cheating clients or absconding with their monies where the dishonesty requires that I be imediately struck off the Rolls as a lawyer.

Yes to be friendly with judges and help them get their promotions through influence, is professionally unethical by lawyers’ standards but, besides lawyers standards being often hypocritical (eg no discount rule), the act of fraternising judges is not morally reprehensible by normal human standards of people, trying to do well for themselves by ingratiating judges. The peers who judge me harshly are the very ones who may not have qualms to ingratiate themselves with judges if they had an iota of chance. Let’s not be hypocritical about that.

I would think it is normal for a practising lawyer – except for those with the highest of professional honour – not to turn down opportunities to be close to Judiciary or Powers-that-be.

It is for the Judge and the Powers-that-be to keep the distance and if that were not possible, at least not to be compromised by such closeness. The onus is more on those holding public office to maintain propriety.

Be that as it may, if the lawyer is found in breach of professional ethics (which is distinct from and not to be compared with other acts of moral turpitude and criminal nature like committing CBT of one’s clients funds), so be it, be a man to face the music especially when weighing pros and cons of evidence there is no way to wiggle out of the tight spot and the tightening nose of evidence. At least try to capitalise on Accountability, a precedent set by Dr. CSL. As often said, the offence is not in the doing but in getting caught.

My only concern is “corruption” under ACA for judicial fixing. his is serious. But is this easy to prove?

Now supposing I favour a certain a judge. If Powers-that-be canvass for my opinion who should be promoted, and I state I think so and so is capable. Is it a crime of corruption that the Powers-that-be respects my opinion and happens to decide according to my recomendation?

There is no corruption involved unless there’s evidence in another direction – that there is conspiracy to fix outcome of hearings before court. But that’s another story.

My earlier posting is awaitinmg moderation and hence has not appeared.

goggle to NST Online, it should update every day.