by M. Bakri Musa

Regardless of the outcome of the Royal Commission of Inquiry on the “Lingam Videotape,” these public hearings have already given us a rare and instructive glimpse on the inner workings of our government at the highest levels, and of the caliber of individuals in such positions.

This is also clearly demonstrated by the commissioners themselves. Their individual impressive credentials notwithstanding, they are merely boys sent to do the job of men.

In forcing Prime Minister Abdullah to convene this Royal Commission, Anwar Ibrahim has done a great service to the nation. Malaysia owes a huge debt of gratitude to him, as well as to the son of businessman Loh Mui Fah for having the foresight to tape that infamous conversation in the first place, and to the anonymous individual who subsequently gave that tape to Anwar.

The alternative media, in particular Malaysiakini and Malaysia Today, together with various bloggers and members of non-governmental entities, helped ensure that the evolving scandal was not conveniently ignored by the government. The mainstream media were, as usual, irrelevant. They not only missed this most important story but tried initially to dismiss it.

Third World Proceedings

Not being physically present, I missed important details of the dynamics of the hearings, such as the demeanors and body language of the various participants. I have to rely on the alternative media, the various blogs, and personal communications from individuals present at the hearings.

A few years back I was a spectator at a medical malpractice trial in the brand new courthouse in Malacca. The judge and lawyers looked impressive; the lawyers solemn in their black gowns, the judge wise if not owlish in his robe and wig. Unlike the Malaysian courtrooms of yore, this one was mercifully air-conditioned.

Alas only the appearance was First World. Once the trial proceeded, the Third World mentality and culture oozed out. There was no court recorder or computers or overhead projectors. Consequently the judge was reduced to scribbling furiously, barely paying attention to the witnesses and lawyers. No wonder Malaysian judges are notorious for their delinquent written judgments; they are busy being secretaries! With no overhead projectors, valuable court time was wasted circulating important documents and exhibits.

This Commission of Inquiry apparently is no different.
In an inquiry of intense national interest, I would have expected the proceedings to be videotaped, and if not broadcasted live then at least posted on the website. Certainly the transcripts should be. Alas the Commission does not even have its own website.

Poor Staff Work

The Commission’s poor staff work was evident. The commissioners and lawyers relied too much on official documents and mainstream media reports. In questioning former Chief Justice Eusoff Chin no one bothered to present the damning evidence garnered through the investigative reporting of Malaysiakini.

If the Commission were a nefarious attempt to embarrass former Prime Minister Mahathir, then that too was a bumbling failure. The questioners were easily flummoxed by Tun’s repeated “I-do-not-recall” responses. They were either intimidated by Tun or simply incompetent. The Tun easily dismissed them, and with a smile to boot. They could not elicit anything substantive from him. Those commissioners forget that no one is obligated to make their work easier.

The Tun reduced DPP Nordin Hassan to a bumbling first year law student in a moot court. Nordin would have gained more if he had asked general questions on the Tun’s philosophy and mode of filling senior appointments instead of trying to force him to recall obscure details. If nothing else such queries would reveal how we ended up with a sleepy head like Abdullah Badawi as Prime Minister. It is really naïve for the prosecutor to think that Mahathir could recall (or try hard to) specific letters written six or seven years ago.

The omissions are equally revealing. There was for example, no criminal investigation to the leaked official letters.

There are a few illuminating moments related to the proceedings. The Star dutifully published a photograph of seven members of the Malaysian Youth Secretariat carrying placards mocking Mahathir for his repeated memory lapses. This is the paper that did not see fit to print pictures of the recent massive Bersih and Hindraf rallies. What do you expect from editors who are only too eager to receive directives from the government?

Naïve Inquiry

It is an axiom among savvy lawyers never to ask witnesses questions you do not know or anticipate the answers. This requires doing your legwork thoroughly. If you anticipate “I do not recall” responses, you should avoid asking specific details and instead relate some favorable events the witness might have done or said at the material time. He would then be more likely if not eager to recall the details. Only after that would you sneak in questions about the details of the specific material item. The witness would then appear sneaky if he or she were to claim loss of memory.

The commission has considerable authority including the granting of immunity and prosecuting those who perjure themselves (give false testimony). It should use that power to depose (get sworn statements) minor witnesses like Lingam’s brother and secretary, as well as the secretaries to Tun Mahathir and Eusoff Chin well ahead of the public hearings. In calling star witnesses like Eusoff China and Tun Mahathir prematurely, the Commission committed a major strategic blunder.

The Commission is now halfway through its public hearings. Like the earlier one on the Police Force, this one too will prove to be an exercise in futility. Prime Minister Abdullah will, as usual, form yet another committee to “review” the findings, and within a short time, all will again be forgotten.

Nonetheless we have learned much on how senior governmental positions are filled and the caliber of those appointed. That should embolden us in cyber world, alternative media and non-governmental organizations to continue holding those in authority accountable.