October 31, 2009
The Lingam Charade ends at Judiciary’s Expense
by Daniel Albert
October 29, 2009
The refusal by the Attorney-General’s Chambers to take any further action or proffer charges against any of the six named individuals involved in the Lingam video clip fiasco has received scathing criticism from the public – and rightly so.
This pre-mature attempt to close official investigations into this matter is an affront to the judiciary and a slap in the face to us all.
The refusal to prosecute in effect means that the implications of blatant judicial manipulation and improper interference surrounding this affair, which were reinforced by the findings of the Royal Commission, will be left to linger and fester without any finality or conclusion.
Despite the public fury stirred by the contents of the video clip, no basis or reasons were given for the AG’s decision. Only a blanket statement was offered to the effect that investigations into the affair had failed to turn up sufficient evidence to bring charges.
So smug are our government officials and leaders that despite the decision going completely against the findings and recommendations of the Royal Commission, no attempt has been made to provide any further explanation or give reasons for their decision to the rakyat.
It is significant that the findings of the Royal Commission were not merely made by lay individuals devoid of any knowledge of the law. The panel was headed by a former Chief Judge of Malaya and also included a former Chief Judge of Sabah and Sarawak, a former Court of Appeal Judge and a former solicitor-general. The panel was not only highly proficient in the law, but in addition, possessed valuable experience in the workings of the judiciary and AG’s Chambers.
Their specific findings that there was “sufficient cause to invoke the Sedition Act 1948, the Prevention of Corruption 1961, the Legal Profession Act 1976, the Official Secrets Act 1972 and the Penal Code against some of the principal individuals involved” would therefore have been made with a thorough understanding of the application of these laws and the requisite burdens and standards of proof entailed in invoking these laws.
Identities of witnesses not shrouded in secrecy
It is also significant the entire process that led to the commission’s findings were transparent and open to public scrutiny. The identities of the witnesses called were not shrouded in secrecy. Neither was witness testimony extracted behind closed doors by unknown means. Evidence presented was adequately tested by a host of lawyers that represented the interests of all parties concerned. The quality of the inquiry conducted and the evidence obtained as a result was apparent to all.
Over and above all this, what is of utmost significance is that there was basis provided for the findings of the commission. The reasons for their findings were detailed in a report that was disclosed to the public. The conclusions and recommendations made were justified with their interpretation of the evidence obtained.
All this adds credibility to the findings of the commission; a quality sorely lacking in the AG’s decision. What investigations were carried out? Were they sufficiently thorough? What was the outcome of these investigations? What kind of legal expertise were used? Surely, the rakyat is entitled to such answers. It is absurd that a matter of this significance is now being swept under the carpet in such cavalier fashion.
Should we be surprised by such action? Sadly, no. The manner in which this matter had been dealt with, from the very start, was indicative of the fashion by which it would be concluded.
When the video clip was first disclosed, whilst the rakyat were livid at the contents of the clip, our then prime minister instead chose to warn those that reported the video clip that action will be taken against them if the allegations that surfaced as a result of the video clip were proven untrue.
Calls for a royal commission were immediately rejected. Instead, a cabinet appointed panel was instead set up. The legal basis of this panel was vague and it was unclear if the panel had the necessary powers to conduct a proper fact-finding inquiry.
Thereafter, the focus was skewed towards identifying the maker and source of the video clip; the contents were made secondary. Curiously, whilst their identities were fastidiously pursued, all mention of the lead actor and his likely conversation partner was carefully avoided by the authorities. Continued calls for a royal commission to be set up fell on deaf ears. The entire time, the de facto law minister had the gall to maintain that the matter had been blown up and there was no crisis within the judiciary.
A royal commission was only set up after almost two months of unabated public outcry and more footage of the video clip revealed – and even then, the terms of reference of the royal commission were exceedingly confined.
Whilst the motivation for such conduct is open to speculation, it is clear that the integrity and sanctity of the judiciary has taken a back seat. As opposed to immediately making every effort to fully investigate the allegations surrounding the video clip and thereafter undertaking the appropriate remedial measures to restore the integrity of the judiciary and public confidence, there have been concerted efforts to play down and where possible avoid the issue all together. Avoiding the issue does not resolve the issue. This however is a solution our leaders seem quite content with.
Scant regard for judicial institution is nothing new
This scant regard for the judicial institution is sadly nothing new. This willingness to prostitute the judiciary has been consistently demonstrated time and time again by our leaders. The integrity and independence of the judiciary is simply not a priority. In fact, it does appear that many of our politicians perceive a strong judiciary as plain trouble.
These sentiments have manifested in the form of continued attacks by our leaders on the judiciary. Attacks, whether by means of controversial appointments and removal of judges or ousting the court’s jurisdiction so that certain governmental action is beyond judicial scrutiny, have undeniably led to the continued erosion and decline of the judicial institution and the state of affairs present.
It was against this backdrop that the Lingam video clip was disclosed. Hence, the public distrust and immediate presumption that many of the allegations surrounding the video may be credible. The hue and cry that ensued and demands for the video clip to be thoroughly investigated was understandable. Had the video clip been disclosed against a backdrop of a strong independent judiciary with a sterling track record, perhaps the AG’s decision, given without reason, would be easier to swallow.
And at what costs is this to the rakyat? Most significantly, the decline of our judiciary has resulted in its inability to function as an effective watchdog on the executive and legislative.
The doctrine of separation of powers dictates that all three organs of the state (executive, legislative and judiciary) act as watchdogs on each other to carry out a process of ‘check and balance’. This is a safeguard to ensure that none of the organs abuses its constitutional power or oversteps its mandate. The reality however is that because the composition of the legislative (Parliament) and executive (government) overlaps and both organs are effectively controlled by the prime minister, the process rarely is effective. This emphasises the role of the judiciary.
Ills of corruption allowed to fester
This failure of the judiciary to carry out this process has allowed avoidance of accountability and transparency in the country’ governing. The ills of corruption, abuse of public funds and excesses of power have been allowed to fester and become constant features in our political landscape.
The disclosure of the video clip presented a golden opportunity to our leadership reform the judiciary; to clean up everything that was wrong and perceived to be wrong with the judiciary and start afresh. Sadly, this now looks unlikely.
It is clear that unless and until there is sincere political will for reform, things will not change. We, the rakyat, must provide the impetus for that change in political will. We need to make clear to our leaders, regardless of political divide, that a strong judiciary is a priority and we will accept nothing less. It is for this very reason we cannot allow this matter to be put to sleep quietly.