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