Malaysia’s great law pretenders

A crisis in the judiciary brings out the ugly side of lawyers

Ambiga Sreenevasan, Bar Council ChairwomanThere is a saying, “when elephants fight, the grass is trampled.” And so it has been for Malaysia’s disgraced judiciary in the last 20 years. Former premier Mahathir Mohamad in 1988 sacked three senior judges, including his Lord President of the Supreme Court, in an acrimonious fight for control of the law courts. Since then, judges have been relentlessly accused of impropriety and corruption. And the judiciary and lawyers are once again troubled by new charges of delinquent judges and politically brokered judicial appointments.

Mr Mahathir, 82, retired four years ago after 22 authoritarian years at the helm of the 13-state Southeast Asian federation that made him the country’s longest serving premier. Now recuperating at the National Heart Institute in Kuala Lumpur, Malaysia’s capital, after two serious heart surgeries, he has shown no remorse for the ills he has created for the judiciary all because he wanted judges to rule in his favour.

In 1996, twelve senior judges, including the former Chief Justice Eusoff Chin, were investigated and cleared of corruption and impropriety by the police and the Anti-Corruption Agency. The probe however focused on Syed Ahmad Idid, a senior judge, who published a 33-page poison pen letter that contained 112 charges against his fellow judges. Shockingly, the judges did not cite him for contempt. Instead, Mr Idid was unceremoniously forced to resign from office; and the judges carried on with their business seemingly oblivious to the scandal that they had been part of.

The latest judicial scandals have some parallels: At issue is an edited, grainy eight-minute video recording allegedly portraying a five-year-old mobile phone conversation between a Malaysian lawyer with powerful political and business connections and an invisible senior judge. They were said to be brokering judicial appointments. The judge’s voice was not heard; only the lawyer’s. Former deputy premier Anwar Ibrahim, who disclosed the video-clip at a press conference on 19 September, never identified the lawyer and the senior judge. But Malaysiakini, Malaysia’s online news portal, has identified the lawyer as V K Lingam and the judge as Chief Justice Ahmad Fairuz Sheikh Halim. Mr Lingam and Mr Fairuz have not denied the allegations.

Even if the allegations are false, Mr Fairuz and judges implicated in the phone scandal have not deemed it fit to defend their reputation and the integrity of Malaysia’s embattled judiciary by either resigning from their office or by charging Mr Anwar for contempt of court. Mr Anwar, the adviser of the opposition Parti Keadilan (Justice Party), spent six years in jail on corruption charges which he says were trumped up against him in 1999. Mahathir had sacked him from office a year earlier. He was at odds with Mr Mahathir on the handling of the 1997 Asian financial crisis which threatened companies of Mr Mahathir’s allies.

Judges are to be impeccable in the English legal system and noble traditions that Malaysia inherited as a British colony. Their slightest indiscretion or the slightest suspicion against them is enough ground for their resignation to defend their honour and the sanctity of the judiciary. But in Malaysia, egocentric considerations come first. Mr Fairuz, 65, does not like the prospect of losing his pension if he were to resign abruptly. He retires at the end of this month. And so his reputation and that of his bench can take a back seat. Likewise, the other judges who are near retirement.

Nobody disputes that Malaysia’s ignominious judiciary needs an urgent overhaul. Lawyers admit that for far too long, their bench has been scandalised by allegations of corruption, rigged trials, partisan politics and incompetent and lazy judges who procrastinate in writing their judgments. Mr Fairuz has been accused of favouring lesser and errant judges for promotion to high benches. He has denied this. But his quarrel with prime minister Abdullah Ahmad Badawi over two senior judicial appointments led to a seven-month stalemate with the King who approved them only when the posts finally went to the right judges. The King’s consent is needed under Malaysia’s complex system of appointing judges.

But it is not just the judiciary that is in trouble. The Malaysian Bar Council has also come in for criticism and condemnation. Lawyers are questioning the credibility of the Malaysian Bar, particularly their 35-member governing council, which represents 13,500 of them in 11 peninsular Malaysian states and the Kuala Lumpur Federal Territory. (Lawyers in the Malaysian Borneo island states of Sarawak and Sabah are represented by different law associations.)

The Bar Council’s reaction to the phone scandal, according to many lawyers, has been “uncomfortably hasty”. Without questioning the legitimacy of the video recording and as lawyers are wont of saying, “without giving the accused the benefit of a doubt”, it called for an emergency meeting to discuss the damning video-clip just hours after Mr Anwar exposed it at a press conference. The Bar has yet to summon Mr Lingam to its disciplinary board although it has announced with much fanfare that it will do so. News reports say the Anti-Corruption Agency has already questioned Mr Lingam after he returned to Malaysia from the US two weeks ago.

Many lawyers, who form the silent majority of the Malaysian Bar, are angry with Ambiga Sreenevasan, their president. They were to pass a vote of no confidence in her at an extraordinary general meeting scheduled last Saturday (6 October). The EGM has however been abruptly and ostensibly postponed pending the outcome of a government-sponsored three-member independent inquiry into the video-clip affair, accordingly to Ragunath Kesavan, the Council’s vice-president.

This is not the first time that the Bar Council has frustrated lawyers by cancelling an EGM. On 8 September, the Bar Council shockingly announced that it would not call an EGM to “re-affirm the supremacy of the Federal Consitution and the application of the Common Law”. More than 80 per cent of the 513 lawyers voted for the EGM in an on-line poll conducted by the Bar Council. They have been worried by the Chief Justice’s call to replace English Common Law with the Islamic Syariah. The Council’s reason for cancelling it is “…the current situation did not indicate that the government would proceed with it.” Lawyers say the Bar Council has ignored that the Attorney-General supports the Syariah and the government has said that the English Common Law should be abolished in stages.

This, lawyers say, is an example of how their Bar has been all too willing to compromise with the government. While it is laudable for the Bar to press for a royal commission to investigate judicial impropriety, it has never condemned the inquiry panel or questioned the integrity of the inquirers. Instead, lawyers were shocked when Ms Sreenevasan welcomed the powerless panel, whose legality is questioned, and described its members as being “of the highest integrity” on the day she led an illegal lawyers’ protest “march”.

By all accounts, about 1,000 lawyers, whose number was swelled to 2,000 by opposition supporters, walked or strolled five kilometres from the Palace of Justice to the prime minister’s office to present two memoranda demanding judicial reforms to the premier knowing full well that Mr Abdullah was abroad. The prime minister was in New York attending a UN General Assembly meeting on 26 September that marked the world’s body 50th anniversary.

The Bar Council’s detractors are quick to condemn Haidar Mohamad Noor who heads the panel as “unsuitable and unacceptable” to carry out the inquiry because he had acted contemptuously of Malaysia’s highest court when he was its registrar. He had hidden the seal of the Supreme Court to prevent the court from hearing a crucial application during the 1988 judicial crisis. Mr Haidar had also ruled in Mr Lingam’s favour in a libel case at the Court of Appeal. Lee Lam Thye, another member of the panel, which has no police power but is tasked only to check if the video recording is genuine, is a political turncoat. A former stalwart of the opposition Democratic Action Party, Mr Lee is a social activist with no legal training but who has been more of a public relations man for the government’s social programmes. The other member is Mahadev Shankar. His critics say Mr Shankar’s only fault is that he was elevated to the bench of the Court of Appeal in 1994 by Chief Justice Eusoff Chin who headed a judiciary which was for the very first time publicly scandalised by allegations of corruption and rigged trials.

The “march” by lawyers was also a farce, according to critics. It was hastily called and its initial militancy quickly degenerated to a “walk” and then to a “peaceful stroll”, according to a circular to lawyers issued by Edmund Bon, the chairman of the Bar Human Rights Committee, on the eve of the “stroll”. So, it was not surprising that riot police, armed with batons and shields who turned up at Putrajaya, Malaysia’s administrative capital, did not use tear gas, water cannons and gun-fire to break up the illegal protest march of lawyers and government opponents as they did recently to an electoral reform rally in Trengganu state. A public gathering needs a police permit. But the Bar never asked for one. The police did not arrest any of the protesters. Critics say, the police were there to ensure a “peaceful stroll” as envisaged by the Bar Council which had taken pains to assure the Malaysian government that it would be so. Thus, a standoff between the riot police and a busload of lawyers was just all for show, they say. “In the end, the Bar Council was humiliated,” says a lawyer. “The prime minister sent his political secretary, a junior official, to receive the Bar’s memos from Ms Sreenevasan.”

One of the memoranda calls on the government to set up a Judicial Appointments Commission apparently to be modelled on the one of the United Kingdom to ensure judicial independence in the appointment of judges who are beyond reproach. Yet, it was only in late August that Ms Sreenevasan, without seeking the majority views of lawyers, quickly welcomed the appointment of Zaki Azmi, a controversial lawyer with a tarnished past, to the highest court.

Mr Zaki, 62, whose late father was one of Malaysia’s Chief Justices, was never a high court judge. So, his appointment to the Federal Court is an astounding departure from convention. Until his elevation to the bench, Mr Zaki was the legal adviser to the dominant ruling United Malays National Organisation (Umno). He had vast financial interests in many high-flying Malaysian corporations.

Two years ago, Mr Zaki resigned from the Umno disciplinary committee saying that his integrity was in doubt after an acrimonious divorce from his second wife of three months whom he had secretly married at a textile shop to hide the marriage from his first wife.

Sisters in Islam, a Malaysian activist group that promotes the rights of Muslim women, condemned Mr Zaki at the time of his divorce and accused him of deceit, evasion of marriage responsibility and disrespect for the family, law and religion.

It raised the question: “What can Malaysians expect when leaders of our community display such blatant lack of deference to the integrity of family life and the institution of marriage?”

Mr Zaki, however, has changed his mind about his lack of integrity and he now sees himself as the next Chief Justice, following his father’s footstep, when Mr Fairuz retires on 1 November.

The Bar Council, of course, will welcome him as Malaysia’s top judge of questionable repute.

“He is of the right temperament and experience,” Ms Sreenevasan told Malaysiakini. “As far as the bar is concerned, we think it is a great honour that one of our members have been elevated.”

Therefore, the exposé of the video recording by Mr Anwar has all been shadow play, according to lawyers who say that it has overshadowed behind the scenes manoeuvring by Mr Abdullah to appoint Mr Zaki as his proxy to replace Mr Fairuz.

The question is: Will the King consent to Mr Zaki’s appointment as Chief Justice of Malaysia?

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10 Responses to Malaysia’s great law pretenders

  1. Kunta Kinte says:

    Malaysia-Today, probably because of its current “close links” to Dr Mahathir Mohamad and his standard, did not break the news of the video-clip that pictured V.K. Lingam brokering deals on judicial appointments even on Sept 20, a full day after the clip was exposed.

    A content analysis points to the other person being Ahmad Fairuz, although this may prove to be inconclusive.

    I find Jonathan Tan’s talk about the Bar EGM fixed for Oct 6 being postponed to avoid a no-confidence motion against Bar President Ambiga Sreenevasan to be totally mischievous.

    For the information of Jonathan:

    (1) The Bar EGM was to be called by the Bar Council. Its postponement was tactical since the three-man panel had yet to publish its report and so the Oct 6 date was premature.

    (2) The Walk for Justice was held on Sept 26, and not Oct 26, as Jonathan Tan claimed.

    (3) The online poll is never binding on the Bar Council. It is just an indication of how Malaysian Bar members feel on an issue.

    (4) The Bar Council is not the same body as the Disciplinary Board. The DB exists as a separate body. Membership of the DB has also been questioned because many lawyers seem to be appointed and re-appointed way past their use-by date.

  2. Kunta Kinte says:

    Malaysia-Today, probably because of its current “close links” to Dr Mahathir Mohamad and his standard, did not break the news of the video-clip that pictured V.K. Lingam brokering deals on judicial appointments even on Sept 20, a full day after the clip was exposed.

    A content analysis points to the other person being Ahmad Fairuz, although this may prove to be inconclusive.

    I find Jonathan Tan’s talk about the Bar EGM fixed for Oct 6 being postponed to avoid a no-confidence motion against Bar President Ambiga Sreenevasan to be totally mischievous.

    For the information of Jonathan:

    (1) The Bar EGM was to be called by the Bar Council. Its postponement was tactical since the three-man panel had yet to publish its report and so the Oct 6 date was premature.

    (2) The Walk for Justice was held on Sept 26, and not Oct 26, as Jonathan Tan claimed.

    (3) The online poll is never binding on the Bar Council. It is just an indication of how Malaysian Bar members feel on an issue.

    (4) The Bar Council is not the same body as the Disciplinary Board. The DB exists as a separate body. Membership of the DB has also been questioned because many lawyers seem to be appointed and re-appointed way past their use-by date.

    (5) Your contention that the lawyer numbered only 1,000 and the other thousand was made up of Opposition activists is disputed. You know you are in no position to give further and better particulars. I put it to you that there were more tha 2,000 marchers, including activists from the NGOs.

  3. juslo says:

    on the Royal Commission:

    if i were AAB i would go ahead n set up the RC, bcos all these rots happened during his predecessor’s watch – ahmad fairuz was appointed by TDM, “on the advice of vincent tan after consulting vk lingam”, so even if there’ll b a lot of scandals being exposed as a result, AAB wont b affected – TDM would.

    so, politically, it doesnt really strike at AAB directly if anything scandalous were to b uncovered by such RC. his recent appointment of 2 senior judges were apparently well-received by many (not least according to u, Jonah), including the rulers. so, as far as his ‘track record’ in senior judicial appointments goes, it’s still acceptable, unlike his antics in all other aspects of his administration.

    so, he should take this opportunity to strengthen/rescue his now almost forgotten image of ‘the reformer’. revamping the whole judicial branch of the government might even win back a lot of critics for him, despite all the ‘no action’ on the ’20 vip corruption files’…

    with election coming, setting up a RC would to a very large extent reignite people’s hope in him like what happened when he just took over before the last election.

    AAB – r u listening????? (wake up, it’s getting late…)

    ————————————————————

    on ms sreenevasan,

    how come our lawyers have elected such a loose cannon as leader?? or maybe she just likes to act like a dictator n dislikes consultation??

  4. sinomalay says:

    Dear Jonah,

    I posted this comment on the Malaysia-Today site which I think should appear here because it is a comment on your article.

    The article presents a fair reporting of what is happening in our country that pleases nobody. The problem with the local news media and bloggers are that the former is pro government and the latter is anti government. There is no one who takes the middle ground. Even Malaysiakini plays the adversary of the government. It is high time that we have bloggers like Jonah of Broadside Malaysia.

    Jonah has raised some pertinent questions which the Bar Council, its president and their supporters have not answered:

    1) Why did the BC call for a Royal Commission and not condemn the so-called independent panel?

    2) Why didn’t the BC and its president question the integrity of the panel members who, history shows, have a questionable reputation?

    3) The March or walk or stroll was supposed to present memos to the PM. Why was it held when they know that the PM was away?

    4) Why has the BC called for a Judcial Appointments Commission to ensure transparency in appointing judges who are impeccable in character and at the same time welcomed Tan Sri Zaki Azmi’s appointment as Federal Court judge, radically by-passing convention and other more capable senior judges when Zaki’s reputation is questionable on record?

    6) Why hasn’t the Bar expressed its reservation to the likelihood that Zaki may be made the Chief Justice?

    As far as I understand in the appointment of judges, whether in Britain, USA or India, a person whose character is suspect, no matter how minute, will not be even considered for any judicial post because judges are supposed to be of impeccable character.

    Why has the BC and its president compromised with the government?

    And the BC and its president have conveniently avoided discussion of the appointment of the next Chief Justice. The president only made a half-hearted statement late yesterday buried underneath a topic on the non-existence whistleblower Act only after Broadside Malaysia highlighted the issue. This shows how little importance the BC and its president accord to the appointment of the Head of the country’s judiciary.

    The BC and its president are not beyond reproach. They are not only accountable to the 13,500 members who elected them and who they represent but to the 26 or 27 million Malaysians who look to them for legal recourse and the judiciary for justice.

    If any of you here have a conscience, can you say the Malaysian Bar is not at fault? Let’s put aside our prejudice and political inclinations and think for one moment as right-thinking citizens of this country.

    Salam

  5. sinomalay says:

    I posted this comment on Malaysia-Today website on the article, ‘Obession with whistle-blowers indicates authenticity of Lingam tape’ with reference to the following statement:

    [Nazri warned that “a probe into the clip will come to nothing if the whistleblower does not come forward to verify its authencity.” He added that if the witness failed to appear, “we can conclude that they are lying”.]
    ==========================================

    This is my comment:

    As Jonah said in the article, Malaysia’s Great Law Pretenders, http://broadsidemalaysia.wo…, the present judicial scandal parallels the one in 1996. Instead of investigating those implicated in the judiciary, the government at that time were investigating whether the 112 charges in the poison pen letter were true and they wanted to know who was the whistleblower. Syed Ahmad Idid finally admitted that he was the whistleblower. What happened? He was castigated, forced to resign, called a liar, because the police and ACA said there were no truth in his allegations. The judges including CJ Eusoff Chin were cleared of Syed Ahmad’s allegations.

    So, what is going to make the present scandal any different?

    As Jonah pointed out, the lawyers, in particular the Bar Council, have to be blamed. As one lawyer questioned in her comment on the Malaysian Bar website: “Are lawyers really standing up for Justice?” All the “hoo ha” so far is all for show and for nothing. If the BC is serious in wanting a cleanup of the judiciary, it should immediately convene an EGM and,

    1) demand that the CJ and the judges implicated resign immediately;

    2) demand that the PM set up a tribunal to impeach the CJ and the judges if they do not resign;

    3) get the Disciplinary Board to issue a show cause letter to Lingam giving him seven days to show cause why he should not be disbarred;

    4) demand that the next CJ must be a person of impeccable character;

    Why has the BC not done this? Why has the DB not done anything yet?

    Our local news media and the majority of our bloggers have not highlighted this. The local news media are more interested in supporting the government. The bloggers are more interested in running down the government.

    Come on, the BC is at fault. Lawyers have themselves to blame if they remain the silent majority and allow the BC to play its game of hyprocisy. We all know why, don’t we? Every lawyer out there would like to be in Lingam’s or Zaki’s shoes: powerful and filthy rich. Many of them still have mouth gapping at the RM12 million fee that Perwaja Steel paid Lingam for being its legal adviser. The PM with his multi-billion ringgit grandiose investment development projects can dish out rich conveyaning work to lawyers. Every one knows this. So, nobody wants to get on the wrong side of the PM — except a few who openly oppose the government in politics and human rights activities.

    Salam,

  6. Eddie Law says:

    Great news reporting! I have linked you to my site in a post.

  7. […] when she talked about how Malaysian Bar reacted (including holding a peaceful match) against the 1988 judicial crisis. We were shown with the slides in which lawyers were matching around the then Federal Court […]

  8. Stumbled upon your blog a week ago and decided to come back. Not for the articles you write, but for how you write them, really amazing stuff you’re doing here, i like how you put information into the articles which makes it much more easier to read and much more interesting of course. Keep up the good work!

  9. GetToThePoint says:

    For all the ills the Malaysian judiciary is facing, the Bar Council (BC) is, to a very large extent, responsible. The society at large, or at least those who have heard of it, consider it as very impotent, divisive, braced with petty quarrels, extensively money-minded, etc, etc.

    The present President seems to be quick-to-gun, shooting blindly and wildly at the wrong targets for the wrong reasons. She stands ridiculed in jumping the gun on the standing of the panel appointed to investigate the Lingam tape saga. As it later became apparent, it was a toothless and evasive “mark-the-time” group that never had credence from day one. Then she goes blah, blah, blah heaping accolades on the appointment of Zaki as a Federal Court judge, who had, on his own admission, lacked the integrity and credibility to head any impartial positions when he was cited for his misadventures in his personal life through the alleged mishandling of his second marriage related matters.

    While I would not comment on how the Bar views her views and comments, she had obviously become a liability to the general public, as the govt (opportunism) seems to endorse her views as that reflecting of the public.

    In a casual survey among 100 streetwise respondents that I had carried out, only 2 heard of the Bar Council. While I would not go as far as labeling the BC as an exclusive and elite club of junkies, it would seem that it is out of touch with the common man. If it had not been pussy-footing, our judiciary would not have gone to the doldrums as it is today. That the pathetic state of the judiciary is an observed and generally accepted view is no doubt, much blame has to be assigned to the BC.

    Championing rights – maybe of a selected few or its own members but when it comes to the common folks, well let them walk on the streets and do their homework to know the reality (perhaps, they know already) instead of their show-off march to the Palace of Justice.

  10. Gina says:

    This is all very well. But most of these “judges” were also guilty of practising “developmental law” i.e. subverting the very letter and spirit of the Constitution to stay on the right side of the Govt as well as to promote Malay primacy. Time to sack all of them and re-employ only the clean ones. Then bring Mahathir and his cronies to trial if there is any evidence against them. If not it will be time to shut up and get on with life.

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