Well be prepared that the other side (Govt) can always rebut Art Harun’s and YB Lim Kit Siang (“LKS)’s contentions with the following arguments:

In Art Harun’s case, he assumes that because judges are public appointments the CJ must adopt one of the two constitutional processes of charging the errant judges and having a tribunal try publicly the allegations/suspicions, and in not doing so and by asking the two errant judges to resign privately the constitutional process is impliedly thwarted.

This conveniently ignores the fact that the judge’s right to resign on his own accord (when faced with allegations) is also expressly provided for as the other constitutional option under article 125(2) of the Constitution; that the right to a Tribunal (to facilitate public understanding of what happened) is one that the judges only, rather than the CJ, can invoke as a condition before they are dismissed/sacked….which does not arise if they quietly accept the allegations and resign. To say that the CJ must proceed to Tribunal is equivalent to saying that the CJ has no discretion and must sack a judge (whether for incompetence or something more serious) even though the errant judges have the other option under the constitution to resign, if asked to. Is it not true that the errant judges have a constitutional option to resign which is deprived if the CJ proceeds straightaway to invoke a tribunal based on premises that he is sacking them, thereby giving them no object to resign? If there were any suspicions of matters graver than incompetence (say corruption) then that task is properly left to that of MACC, not CJ.

LKS’s main case against chief secretary is why he did not oversee and conduct an inquiry as to how the four Letters of Support could have been issued unlawfully by two previous transport ministers, and to take the necessary disciplinary actions against them.

The main assumption here is that the Letters of Support were actually guarantees, and being so, their issuances without Treasury/MOF’s prior approval prescribed by the Financial Procedure Act (“FPA”) were unlawful.

The reply to him will be this:

· Mention is made to “govt giving retrospective approval to the four illegal Letters of Support” which were guarantees. If they were in fact “illegal” guarantees (masquerading under the titles of letters of “support”) in the sense of contravening FPA, then they were void right from beginning which raises question whether they could be retrospectively ratified. Here the retrospective ractification is just a confirmation to honour letters of support as expected by the market in respect of such support letters.

· The letters of support were (in AG’s words) “tantamount” to guarantee (in effects in the sense the government would, on a moral obligation, honour them as it would in parallel case of a guarantee issued grounded on legal obligation) : tantamount to a guarantee is not the same as being by nature a guarantee. (I have extensively discussed this in postings #34, 37, 39, 40 2nd page of earlier thread “ Why didn’t AG Gani prosecute previous Transport Ministers Ling and Chan for unlawfully issuing 4 Letters of Support causing the RM12.5 billion PKFZ scandal?” and will not repeat them here.

If the Letters of Support, though “tantamount” to guarantees (in effects) were not, (by nature), guarantees and FPA not contravened, then their issuance would NOT be unlawful and LKS’s charge against the chief secretary based on assumption of their unlawful issuances will necessary lose its cogency.

//….chief secretary should conduct an inquiry as to how the four Letters of Support could have issued unlawfully and to take the necessary disciplinary actions against the culprits who have now landed the country with a RM12.5 billion PKFZ scandal….” – YB Kit

Sidik will reply by just saying that the four Letters of Support were not in legal sense guarantees and hence question of their being issued unlawfully without Treasury’s prior approval does not arise. In fact Chan Kong Choy has sought Queen Counsel’s Opinion to confirm this point which appears to be not inconsistent with AG’s opinion when he made clear to PAC, that these letters of support only ‘tantamount’ to the effects of guarantees in the sense that whether based on ‘support’ or ‘guarantee’, the government, in maintenance of its debt sovereign ratings and credibility, will honour them equally, without conceding at any time that the letters of support were techically in fact guarantees for their issuances by former ministers of transport to be in contravention of or unlawful by the Financial Procedure Act.

On the charge that there was “no serious follow-up to the relevant cabinet decisions, if they were in fact actual cabinet decisions”, only guarantees need prior cabinet’s or Treasury/MOF’s approval by the FPA whilst this may not be legally imperative in the case of letters of support.

As to the cabinet’s taking the subsequent decision (in the aftermath of the PKFZ scandal exploding in public realm) to treat the letters of support as morally binding and assume financial obligation thereof as if they tantamount to guarantees (ostensibly to maintain govt’s credibility with financiers and financial/bonds markets), would it be fair to reasonably expect Sidik, in his rank and position as chief secretary, to countermand or exercise oversight against and challenge the wisdom or unwisdom of such a decision made by the cabinet, ie. the govt employing him?

The main party responsible is the government itself (not its underlings) against which to raise this grievance – why commit so much public funds, honouring letters of support which are not conceded guarantees though treated as tantamount to guarantees on a project such as PKFZ that has already lost its raison de etre of commercial viability.

To respond to that one has to answer first what KDSB deputy chief executive officer Faizal Abdullah said about PKA’s suit KDSB to seek a refund of RM720 million in allegedly overcharged interest. “Is this a new leadership under PKA chairperson Lee Hwa Beng (who) tramples and revokes the laws of contract or agreement in Malaysia when necessary?…If so, who dares to take the risk to invest or to be appointed as contractor of PKA in future as the authority can anytime terminated the project or refusing to pay accordingly to agreement?” (Considering PKA is government agency Faizal Abdullah’s challenge is directed obliquely at the Government of Malaysia – who would dare do business with its agency.) Reference – Malaysiakini’s report titled “ Kuala Dimensi: Is PKA reneging on its contract?” uploaded on Sep 19, 09 7:22pm.

There are broader issues involved here – “why is the government acting as if they privately own the country” per KL John. It is because of the concept of Malaysia Inc (started in TDM’s era) and raises broader but critical issues (relevant not only here but elsewhere) of the extent by which government should itself involve in business; the clear and present dangers of abuses happening with mega projects of questionable viability being awarded without open tender to incompetent cronies, of opportunities being deliberately created to help raise political funds and also personal enrichment of politicians in power, of how under feudal patronage system, assets and resources of a nation are harnessed to help finance the ruling parties/politicians to maintain power and perpetuate themselves indefinitely, no matter that they lost majority votes, and so and so on. Until these critical issues relating to the system are addressed, taking to task individual players like ministers or chief secretary is peripheral, and offers no solution, and the problem of depleting/wasting public finances and concomitant political corruption will continue unabated.