INTRODUCTION

Just when the dust had begun to settle on his previous and unfortunate misadventure, a naked attempt to throw Malaysia into chaos and seize government in the ensuring confusion, Anwar Ibrahim appears once more to have gravely miscalculated his moves, demonstrating a mercenary ‘the devil may care’ attitude in his unquenchable lust for power. If there is one thing that will forever characterize Anwar’s contribution to Malaysian history it is this. He will be remembered as the man who never failed to waste or squander an opportunity through his own vanity and his unwavering belief in his own infallibility and invincibility. Hitler too suffered from that same complex.

The sheer audacity of Anwar’s putsch this time is only dwarfed by enormity of the arrogance of the man’s ignorance. Using an outdated apocryphal document he calls Video Korupsi Tun Datuk Fairuz dan VK Lingham, (“Video”) Anwar seeks to revive his faded jaded personal and his political reputation and leadership ambitions with a sensational policy free campaign.

THE VIDEO (Video Korupsi Tun Datuk Fairuz dan VK Lingham)”

What the Video is proof of is nothing more than a documentary footage of an Indian male, even if that Indian male is VK Lingham, engaged in a monologue over a telephone.

To Anwar it purports to be a record of proof of an act of corruption in recording what he asserts is a private conversation between the Chief Justice of Malaysia and a lawyer (identified in the video as VK Lingham) conclusively therefore also proof of corruption against the judge and Lingham.

There is no dialogue. We hear no one else. The Video is evidence of and proves nothing more than just that. Perhaps just a little more. That the Anwar camp has no regard for the privacy of individuals, nor regard for the law is evident in his actions nor is there any indication that Anwar understand the law or how it works.

What surprises many around the world and yet seems oblivious to a sector of the Malaysian community, the Malaysian legal fraternity and their Human Rights Advocates (at least that’s what they prefer to be portrayed as) if that’s not stretching credibility too far, is the failure of these two groups to comment on, or to challenge this glaring defect in this egregious document, the Video in support Anwar’s claims of proof of corruption against the judiciary in Malaysia.

*CORRUPTION AND JUDICIAL MISBEHAVIOUR

*Like the word corruption, judicial misconduct and judicial misbehaviour has no universally defined meaning. Instead each of these terms can be applied selectively in any given set of circumstances.

At its weakest, it is used to define a morally or socially unacceptable or questionable form of conduct to make it sound so reprehensible as to deserve legal sanction.

It should be noted that regardless of the jurisdiction, a majority of jurists and politicians in common law countries would not be in favour of any statutory definition of what constitutes removable misbehaviour , misconduct, incapacity or what divides removable misbehaviour from non-removable misbehaviour in the case of judicial misconduct.

However worthy such an endeavour might be in principle, it would seem to be a near impossible and impractical exercise due to the difficulties in identifying and defining the offence in this area.

For example, there is widely held opinion amongst internationally renowned jurists and academics that the term misbehaviour or misconduct as far as judicial officers are concerned should be used in a way that meets the ordinary definition of those terms and should not to be restricted to misconduct in office or to conduct of a criminal nature.

A considerable degree of leeway is thereby offered for debate and interpretation as to what constitutes misconduct and as to whether, in any particular case, it constitutes a “hanging offence”.

It will be recalled that the Commissioners in the Lionel Murphy affair, (Lush, Blackburn and Wells) were to some degree in unison about notions such as

• conduct judged by contemporary standards which casts doubt on a judge’s suitability to continue in office;
• conduct which, being morally wrong, demonstrates the unfitness of the judge to continue; and
• behaviour which represents a serious a departure from the standards of proper behaviour by the judge that it must be found to have destroyed public confidence in the judge.

Perhaps the last of these categories as propounded by Lush, Blackburn and Wells is what Anwar was alluding to. But the manner in which he presented his case and his credentials as the future leader of Malaysia behind the veneer the tapes leads to more questions being asked about Anwar’s credibility, his capability and his character (his character is an issue when he attacks the character of his opponents).

World renowned legal commentator and professor of law, Tony Blackshields of Macquarie university Australia, notes that in the Federal context, (applicable in the Anwar tapes question (my opinion)), “Misbehaviour is essentially a political rather than a legal notion”.

It was further argued or submitted in the Lionel Murphy matter that the distinction between criminal and non-criminal behaviour is not necessarily going to be very helpful.

For example, while a conviction for a lower or medium level drink driving offence or a minor assault may not be regarded as sufficient for the removal of a judicial officer, non-criminal behaviour such as persistent failure to produce timely judgments or repeated serious rudeness to litigants and/or lawyers could be.* ( *adapted from the Sallman Paper 2005)

Anwar did not allude to any of these notions or suggestions but instead went on a whim to cling on to an outdated piece of questionable but sensational document suggesting a desperate action by a desperate man.

On the face of repeated complaints where proof is readily available from the record and the bar, for persistent failure to produce timely judgments or repeated serious rudeness to litigants and/or lawyers for which there is ample proof, Anwar would have been better submitting these as examples of misconduct rather than a feeble sensational video to make his case then fall on his sword.

PROOF VERSUS PUDDING –
PROCEDURAL FAIRNESS AND INADMISSIBLE EVIDENCE-

If this is Anwar’s and Elizabeth Wong’s idea of proof of corruption (as opposed to inadmissible and uncorroborated evidence) and proof of the truth to their assertions, then that video unfortunately purporting to show Anwar’s good wife engaging in an intimate encounter with a white male in a hotel room, (an Australian or American journalist according to the commentary) a video which once did the rounds of the internet when Anwar was imprisoned, is by these same standards he now applies to Fairuz and Lingham, evidence of his wife’s infidelity and his party’s immorality if not by implication then at least expressly so. She was once their president.

That video of Anwar’s wife (which it purports to be) which no one should condone for what damage it does to unsuspecting individuals in the exercise of their private rights, cannot be proved to contain anything factual or of public benefit without the benefit of an open trial and testing of that evidence. Such is an example of the dangers of cheap entertainment and an immoral stunt to defame being submitted as proof.

Anyone who supports such a stunt without the benefit of a proper investigation, procedural fairness and conclusive proofs of the assertions made is equally at the very least morally culpable.

THE MALAYSIAN LEGAL PROFESSION

Clearly Malaysian lawyers have a credibility problem if they do not unequivocally condemn Anwar’s pernicious theatrics. In remaining silent observers and indolent spectators on the sidelines in the face of such an unprecedented assault on the judiciary, the dignity of the office of the Chief Justice and the courts, they are guilty of a gross dereliction of their duty as officers of the courts.

Politics and political biases should not interfere with such a duty. It is a duty they must discharge impartially as is expected of them. Lawyers by their training are expected to be forensic and detached, not partial and biased. The law cannot operate fairly in an environment where fairness, truth and merit are casualties whilst mediocrity and bias are the criteria for justice to prevail. This is an assault on the competence and integrity of the entire legal system which includes lawyers as its largest constituent component.

Lawyers ought to know that it is for the courts (and that includes them as officers of the courts) to dispense justice rather than for an individual like Anwar to dispense with justice with their tacit support in pursuit of a purely personal and political objective.

What’s also perhaps more disturbing in this affair is the lack of discussion or argument about those critical legal issues of evidence, probity, political and moral integrity that will eventually impact on all of us if Anwar gets his way with government which the Malaysian bar appears to have conveniently ignored with their silence.

AN EXTREME OF THE EXAMPLE OF PROFESSIONAL INCOMPETENCE

Consider the following proposition in the light of the position the Malaysian bar has adopted in this affair.

The ultimate statutory sanction against a human being in Malaysia is the death penalty. It applies to persons who are found in unlawful and unlicensed possession of firearms as well and more notably it applies to persons in possession of drugs of dependence such as marijuana, cocaine or heroin.

In the absence of the expected outrage on pressing legal issues raised by the Video, an outrage which has yet to manifest itself from the Malaysian bar, one can only wonder as to how many Malaysians who dangled on the end of a hangman’s noose paid that ultimate price for the incompetence or ignorance a Malaysian legal practitioner acting in their defense.

This Video purporting to show VK Lingham engaging in a conversation with Chief Justice Fairuz is designed to bring the reputation and credibility of the bench and the courts of Malaysia into disrepute. Lawyers must remember that the bench is made up of persons from their esteemed ranks.

Anwar’s actions in this particular instance constitutes the offence of contempt of court. A politically bankrupt exercise designed to smear individuals he does not like with his contumely against an elected government of the day through a cowardly act of the most sinister sort, has neither legal nor moral basis.

Interference by breaching the privacy of an individual through use of untested perhaps even manufactured evidence which Anwar relies on in support of his vain belief that he is the only worthy contender for the office of Prime Minister of Malaysia, is reflective of the extent to which a delusional narcissistic Anwar will go in pursuit of his ambitions at the expense of others.

Anwar demonstrates an embarrassing inability to distinguish fact from fiction, evidence from proof or a clear understanding of the law. Anwar demonstrates a level of culpability, recklessness and reinforces the fact he is clearly a man with little regard for the law or the constitution.

A totalitarian blackmailer is more likely the character he proves himself to be in this unfortunate episode, having further gone on the record to make the claims that the judiciary is corrupt based on a suspect video and his discredited word.

Some media like Malaysia Kini and the legal profession on the other hand willingly and irresponsibly assist Anwar to muster a misguided public in manufacturing consent.

WHY ANWAR’S ACTIONS ARE INEXCUSABLE

As a politician with a considerable degree and wealth of experience in the intimate workings of government and a long career of having dealt with the law and government at the highest levels, his smear and defamation of the bench is inexcusable, unforgivable, deliberate and without proper cause.

If this were the rantings of an uneducated rural Malay, an Indian plantation labourer or a common Chinese Malaysian whom many believe have an in built anti Malay bent anyway, then the making and publishing of such defamatory material, labeling it so confidently as evidence of corruption could be tolerated and to some extent excused.

However when presented so confidently as proof by someone of Anwar’s perceived caliber, his mischief is criminal, deliberate, seditious, treasonous, reckless and criminal.

Here is an individual who so readily points the accusing finger of corruption, malice and inequity towards his colleagues, his partners in crime with whom he once shared a common goal, acting as a repository of the trust of Malaysians.

A WOLF IN SHEEP’S CLOTHING?

The obvious question on everyone’s lips is, how come Anwar remained so deafening silent when the ISA and all other forms of ‘undemocratic behaviour’ during his time in government was inflicted on so many? What makes Anwar so believable now? especially with his reckless and unlawful defamation of the office of the Chief Justice of Malaysia without reason cause or proof apart from his personal desire for revenge?.

Anwar’s attempts to convince us his ‘road to Damascus conversion’ occurred sometime during the currency crises in 1997 and that he is now a changed man for the better is less than convincing in light of this unfortunate episode in his political life. The 16th of September has now come and gone. It is history like he is fast becoming himself.

Where is the evidence if not the proof of Anwar’s sudden change? or is Anwar suggesting that the moment he left parliament for the last time everything went pear shaped and corrupt and therefore suddenly worthy of his contempt for the nation which gives him license to defame his opponents with impunity? Or is he perhaps suggesting something else to us, such as perhaps, he was himself complicit in that culture of corruption he suggests existed whilst he was in office, but that the real offence committed by the government of the day was that he was not placed in charge of the till?

A MAN UNDER SEIGE

Except for his coterie of rabid fanatics, ignorant legal advisors and sycophantic admirers, it is hoped he will be made an example of for what he has now done by his reckless childish behaviour in thwarting any real opportunity by those committed to exposing real corruption and undemocratic behaviour wherever it occurs.
Sadly Anwar has lost any semblance of credibility that may have existed within him as a residue of his last disastrous adventure, with this farcical, deliberate tarnishing of the reputations of either Fairuz or Lingham.

Indelibly stamped across his feeble attempts to grab power again through anarchy is the clear absence of statesmanship. Brinkmanship maybe, but where is the cause or principle?

If the judiciary is corrupt, then let due process prevail. The general suspicion is that too many within the legal profession themselves find this ‘expose’ too close for comfort which is why their silence is deafening.

The more pressing problem is the question of whether members of the legal fraternity in Malaysia have the requisite skills or levels of competence to prosecute or bring a successful action against those they ‘suspect’ of corruption without revealing a tainted hand.

Anwar has tarnished the image of Malaysia’s courts and its judicial institutions to an extent it can only be remedied by locking him up after an open trial and throwing away the key, bad back or otherwise.

He deserves to be reminded that the quality of evidence he accused the Mahathir government of relying on at his trial, labeling it unfair, tainted, manufactured and inadmissible is now the very same quality of evidence he relies on to defame his targets. Anwar cried for procedural fairness during his trial. His recent actions demonstrate an acute lack of understanding of that concept.

In his own words and by implication of what he conveyed at his recent press conference, Fairuz is in his cross hairs for revenge because Fairuz he claims was part of a ‘conspiracy’ to destroy him.

That’s not good enough a reason to hold the nation and its political and legal institutions to ransom. Or is it fair game in pursuit of a larger political objective? Clearly the nation and its people are dispensable commodities where Anwar’s political ambitions are concerned.

AN EXPRESSION OF FATE OR A FATEFUL FATAL EXPRESSION

No conspiracy was needed to destroy Anwar except a conspiracy of truth, fact and the law. Considering Anwar’s demonstrated abject , unmitigated ignorance of politics and law and his contempt of the law, the judiciary or the liberties of individual citizens whether these be VK Lingham or Fairuz , Anwar needs no enemies to fail. He shoots himself well in the foot and is self destructive enough for others to let him engineer his own demise again. If Anwar does not take his foot out of his mouth soon he may well commit political suicide as well.

Anwar reinforces the proofs and the truth behind his conviction for sodomy to the extent that, the standards of proof established at his trial was far higher than the standards of proof he is able to establish to prove the culpability of Fairuz and Lingham in the commission of such a grave offence as judicial corruption.

For a politician having experienced both of the extreme examples of what the law may dish out to the unwary when abused, he still seems terribly ignorant, careless and quite clearly indifferent to the seriousness of his charges against his victims and appears clearly not to have learned his lesson.

DOCUMENTARY EVIDENCE AND HEARSAY

In legal proceedings it is generally accepted that there must be a subject matter for determination, and some immediate right, duty or liability to be ascertained by a court.

In order to establish that there is a prima facie case (ignoring for the moment the magnitude of the offence complained of) due process and reference to established legal practice should be the first course of action.

Anwar may like us to believe that he is being chivalrous by his behaviour. His actions though appear to belie a somewhat sinister, cavalier attitude and design for what is by his own admissions a campaign of retribution en route to his ultimate destination, the office of prime minister.

Anwar appears to be totally naieve about the dangers of relying on video recordings (second hand hearsay ) ( a case of sex lies and videos or is it life imitating art?) purporting to show what is clearly uncorroborated ‘evidence’ of proofs that the events complained of occurred. This most unfortunate outburst by him will be the root cause of his downfall again.

In such a vain attempt to grab power through sensation and unsubstantiated, uncorroborated claims of corruption, it may be useful for Anwar to examine the reasons why courts in common law jurisdictions do not allow for the admission of these types of evidentiary material to be used against an accused save in exceptional circumstances and even then only where permitted by law.

The law of evidence and the common law provides adequate studies of the dangers of second and third hand hearsay evidence against an accused especially if in uncorroborated documentary form.

THE BABE FACTOR

People may recall the popular animated film Babe. Babe is an Oscar winning film depicting a pig, ducks and other barn animals speaking effortlessly in English with flawless lip sync, seamless edits and the unmitigated use of computer graphics.

The film cleverly uses animals in animation to reinforce a cryptic moral message so convincing to its audiences. It also provides the most compelling contemporary evidence of why the use of such material as the Video can be dangerous when presented as unimpeachable evidence of proof of his assertions.

With the advent of computer film technology now available in “off the shelf” software to anyone desirous of creative or damaging mischief, anyone with half a brain can concoct what Anwar relies on for his very conclusive statements about the Judge and Lingham. That is not to suggest that Anwar concocted this Video.

The point is that it is possible for someone with the necessary tools to create such a Video. The US continually uses it to discredit its enemies like Osama Bin Laden.

THE LESSON

If a pig could speak and a horse argue (which by the way many young Americans interviewed after the film said, they believed possible, citing the example of a parrot speaking human languages even if only by repetition) then surely Anwar’s base intelligence should have told him that applying the same medium to his mischief carrying his evidence as proof, it is also equally possible to produce the same result he now relies on in this tape he presents as proof of corruption.

This is precisely the reason why competent courts do not and are under a duty not to admit such evidence without proper cogent corroborative supporting proofs.

THE DANGER THAT IS ANWAR

For Anwar to stoop so low is final reinforcement of the dangers of ever having him in parliament let alone as a future Prime Minister of Malaysia. He cannot be trusted to distinguish fact from fiction, he has very poor choice of legal advisors and has now been dragged into a final act of self destruction through political suicide driven by desperation of his own incompetence and ambition. (foot in mouth disease).

If he were ill advised into this perfidious act against his nation, he has a duty to at least to dismiss his entire legal team and his political advisors immediately he discovers the futility of pursuing this stunt with its dire criminal implications for him. It has far reaching consequences for his personal and professional reputation and whatever may be left of his political integrity.

Anwar demonstrates a characteristic beneath contempt for what he has done or attempted to do to Lingham and to Fairuz regardless of what one may perceive of both these individuals privately. He demonstrates a terribly immature and unstable personality devoid of the statesmanship qualities one would expect of a would be political leader.

It is widely hoped that he will contain his vanity, uncontrollable anger and desire for revenge in order to re establish his credentials and redeem himself once again to convince that he is what Malaysia needs (like a hole in the head at this time).

In parting, someone should perhaps introduce Anwar to this verse:
“The heights to which great men have leapt were not achieved in sudden flight. But they whilst their companions slept were toiling upward in the night”

Harvard and George Washington University may also for their part wish to take time out for some introspection. Their hasty willingness to bolster their jaded reputations with the hype associated with awarding unmeritorious honorary professorships and doctorates to people like Anwar and others for purely politically expedient reasons will only enhance their reputations. Bad reputations that is.

Gopal Raj Kumar
Australia