Judge: Commission's findings on Lingam Clip can't be challenged

WEB EDITION :: Local News
.
KUALA LUMPUR (Dec 12, 2008): The High Court here today ruled that the Royal Commission of Inquiry's findings implicating six individuals in the controversial "Lingam video clip" cannot be challenged.

Datuk V.K.Lingam Justice Datuk Abdul Kadir Musa made the ruling when refusing leave to five of the six to seek a review of the commission's findings.
He accepted the preliminary objection raised by senior federal counsel Azizah Nawawi, for the commission, that the findings were not reviewable on the grounds that they were not a pronouncement of a decision and thereby did not affect the rights of the individuals or their obligations.

Abdul Kadir said the findings of the commission remained as "findings" and could not be construed as a decision to which an individual was entitled to seek a judicial review to quash the findings under Order 53 Rule 2 (4) of the Rules of the High Court.

He said the commission did not make a decision. Instead, it only conveyed its findings in a report and submitted it (a report) to the King on May 9, which was later transmitted to the government, which decided to make the report available to the public on May 20.

"Until May 19, 2008, nothing was known about the aforesaid findings of the royal commission as contained in the report. None of the said five commissioners ever made known their said findings either to any or all the five individuals or to the public," he said.

Abdul Kadir said whatever happened after the commission had submitted its report to the King was entirely beyond its (the commission's) control.

The five-member panel of commissioners, in their report, had found the video clip showing senior lawyer Datuk V.K.Lingam in a telephone conversation with former chief justice Tun Ahmad Fairuz Sheikh Abdul Halim over judicial appointment to be authentic.

The commission also recommended that appropriate course of action be taken against six individuals -- Lingam, tycoon Tan Sri Vincent Tan, Umno secretary-general Datuk Seri Tengku Adnan Tengku Mansor, former premier Tun Dr Mahathir Mohamad and two former chief justices Ahmad Fairuz and Tun Mohd Eusoff Chin -- for misconduct.

It found that there was sufficient evidence to investigate the six men for offences under the Sedition Act, Official Secrets Act, the Penal Code and the Legal Profession Act 1976.
Except for Mahathir, the other five filed for leave for a judicial review in an attempt to quash the inquiry's finding.

The commissioners -- chairman Tan Sri Haidar Mohd Noor, former chief judge of Sabah and Sarawak Tan Sri Amar Steve Shim Lip Kiong, retired Court of Appeal judge Datuk Mahadev Shankar, former solicitor-general Puan Sri Zaitun Zawiyah Puteh and Professor Emeritus Tan Sri Dr Khoo Kay Kim -- sat for 17 days to inquire into the 14-minute video clip and concluded its work Feb 15 this year.

Abdul Kadir also held that although it could not be denied that the five individuals were adversely affected in its natural sense by the commission's findings, they were nevertheless not so adversely affected within the context of Order 53 Rule 2 (4) of the Rules of High Court.
He disagreed with their proposition that the commission's findings were reviewable based on the New Zealand common law which construed "findings" as a decision within the ambit of Order 53.
The Malaysian courts should not import common law from other countries where the provisions of Malaysia's laws were different, he said, adding that if one wanted to import the interpretation of New Zealand's Judicature Amendment Act 1977 into Malaysian law, there must first be changes made to the Malaysian Acts.

Ahmad Fairuz and Eusoff Chin are appealing against the decision while the other three indicated that they may consider to appeal. -- BERNAMA

Hopes ride high for judicial reform in Malaysia

Submitted by Sahil Nagpal

on Fri, 12/12/2008 - 04:50.

Featured
Kuala Lumpur
Malaysia

Kuala Lumpur - With the emergence of several landmark court rulings this year, there is renewed hope among Malaysia's legal fraternity that the judiciary system, more often than not the object of scorn and ridicule, is beginning a long-awaited path to reform.
Years of controversies surrounding the judiciary have led to an all-time low public opinion of judges and the courts.

The first major crisis faced was 20 years ago in what is remembered as the Judicial Crisis of 1988, when ex-prime minister Mahathir Mohamad sacked six top judges from the Supreme Court following a series of clashes between the former leader and the judges.
Three of the sacked judges were eventually reinstated, but the crisis gave clear warning to other members of the judiciary to toe the line.

Public opinion of the judiciary suffered further when in 1996, a letter was circulated alleging judicial corruption. Government investigations later claimed to have found no proof of the alleged wrongdoings.
Observers believe that the 1988 crisis marked the end of judicial independence from the executive powers, and the start of a string of questionable judgments in high profile cases.
One such case was the trial of former deputy premier Anwar Ibrahim on charges of sodomy and corruption.

Anwar was sacked by his former mentor Mahathir in 1998, and subsequently jailed for sodomizing his former driver and then using his power of office to try and cover up his wrongdoings.

Anwar's supporters, as well as international and independent observers at his trial, criticized the manner in which the hearing was conducted and claimed there were several instances where the presiding judge appeared to have favoured the prosecuting government.

Anwar's sodomy conviction was later reversed, but only after he served six years in jail. His appeal against the corruption charge is still pending.

"The Judicial Crisis of 1988, that's where the rot started," said Ambiga Sreneevasan, the president of the Bar Council.

Last year, a videotape surfaced purportedly showing a veteran lawyer with links to top government leaders allegedly fixing the appointment of senior judges in a phone conversation with a former chief justice.

The ensuing outrage caused the government to form a Royal Commission of Inquiry into the videotape contents. The probe revealed that the process of judicial appointments was open to manipulation by the executive branch and private citizens.

Pledges of reform by the current government under Prime Minister Abdullah Ahmad Badawi have been largely met with cynicism as critics say the lack of political will to clamp down on the corruption is the major hindrance.

"Reform is not just the question of the integrity of the judiciary. It also includes the issue of competence. How do we select our judges?" said human rights lawyer and constitutional expert Malik Imtiaz.

"The judiciary doesn't only need to be free from influence, but also the appointment process has to be set apart from the executive powers," Imtiaz said.

"I'm not wholly sure there is the political will to carry this through," he said.
However, even critics have acknowledged that several landmark rulings this year alone may signal a long-awaited return to judicial integrity.

On November 5, a court decided to release a controversial internet blogger who had been jailed without trial on allegations that his anti-government writings were a threat to national security. The court ruled that the government acted unconstitutionally.

The ruling was hailed by the legal fraternity and rights activists as a sign that the country's judiciary was not serving as a tool of the government.

"At a time when public confidence in the independence of the judiciary has taken a beating and when promised reforms have yet to take place, the decision gives hope that our judiciary has acted and will act with courage, integrity and independence when the liberty of an individual is threatened by the arbitrary use of power," said Ambiga.

In late November, the High Court overturned the conviction of human rights activist Irene Fernandez, whom the government accused of false reporting that illegal immigrants were sexually, physically and mentally abused in Malaysian detention centres.

Despite the fact that the acquittal came after a 13-year battle, the ruling was hailed as another milestone in judicial independence.

"There's always hope," said Imtiaz.

"As long as there are people who believe in the sacred institution of the judiciary, there will be hope." (dpa)

Aliran Media Statement : Stop harassing peaceful citizens: Go after the criminals

Aliran is appalled at the determined effort of the police to stop a peaceful campaign mounted by Jerit to raise awareness on issues such as food shortages, environmental problems, draconian laws and the financial crisis. In a unique way, Jerit is highlighting these very important issues affecting the great majority of our citizens by getting two teams of cyclists to “Ride for Change”.
Both these teams took off simultaneously – one from Johor Bahru and the other from Alor Setar on 3rd December 2008. It would have taken them 16 days to reach Kuala Lumpur on 18 december 2008 where both the teams would converge and proceed to Parliament House to deliver a six-point memorandum to Prime Minister Datuk Seri Abdullah Ahmad Badawi and Opposition Leader Datuk Seri Anwar Ibrahim.


Why are the police in a frenzy to frustrate this attempt in such a serious manner? Why is this endeavour by peaceful means viewed as if it posed a threat to the peace of the nation? Why so many police personnel and vehicles are used when crime is so rampant and needing urgent attention all over the country?

What is bewildering is the fact that in spite of having informed the Inspector-General of Police Musa Hassan of this “Ride for Change” programme, these harassments, intimidations and arrests have taken place on a daily basis in a routine manner. There has also been an allegation of sexual assault which resulted in the breasts of a participant being groped. The police as an institution have not lived up to the expectations of the public as a moral guardian looking after our safety and wellbeing.


People are wondering why can’t the police put in as much enthusiasm and determination in going after the criminals who have become the bane of society with crimes escalating to a worrying levels. Snatch thefts, murders, house-breaking, robberies, kidnappings, rapes, etc have become daily occurrences in our country simply because the police are no longer perceived as being effective in combating crime. Why is the police hell-bent in wanting to stop this peaceful campaign which is undertaken on behalf of the people and for the good of the people? Where is the threat and who is being threatened by this endeavour that is aimed at compelling the Barisan Government to focus on the real issues affecting the rakyat instead of indulging in politics to perpetuate their power.


So many police reports have been lodged with regard to corruption, abuse of power, violations of human rights, disregard for rule of law, etc but why have the police not displayed as much enthusiasm in trying to solve all these grievances? So far 23 arrests have taken place involving the team from the South and 53 arrests involving the team from the North. Each occasion those arrested were taken to police stations for statements to be recorded and particulars to be checked before being released. This has resulted in a lot of time being wasted which could have been devoted to fighting real criminals and curbing crime.


It is very unfortunate that the police are being perceived as the tool of the ruling party in the way they conduct themselves. They seem more intent in going after dissidents and social activists to ensure the power of the BN rather than tackling crime and criminals to make the country safe for the ordinary citizens.. This police conduct is definitely not acceptable to the people in a democracy. We are going through, in the words of the Greek poet, Aeschylus, “one of the periods of hope and endeavour which now and again light up the dark pages of history.” Clearly there are Malaysians who will not be brow-beaten to submission but will on the other hand stand up for justice and what is right. These brave cyclists will complete their journey on behalf of the people and the memorandum will surely be delivered to the Prime Minister and the Leader of the Opposition on 18 December 2008.

If the police resort to brutal means to stop this endeavour which provides hope for change, then we will have to ensure that there is a change in the government in the next general election to put a stop to this unhealthy behaviour of the police and teach the BN a lesson that there is a limit to their undemocratic rule. The dark pages of history will not dominate our lives forever.

P RamakrishnanPresident11 December 2008.