Deal with the rot, not the tape 亟需糾正的腐化司法制度 (Malaysiakini 9 Oct 2007)

Deal with the rot, not the tape
M Bakri Musa Sep 28, 07 11:41am
If Chief Justice Ahmad Fairuz has any sense of personal honour and professional integrity left, he should resign immediately. If Prime Minister Abdullah Ahmad Badawi has even the slightest responsibility for leadership and moral duty to the citizens, he should not extend the Chief Justice’s contract, due to expire this October. If the Malaysian Bar Council has any credible principle of societal obligation and self-policing ethics of a profession, it would disbar the lawyer making that phone call shown in the infamous video clip exposed by former deputy premier Anwar Ibrahim.

Alas, judging from past performances, expect none of these. That is the unfortunate reality of Malaysia today. What remains then would be for the King to withhold consent for extending Fairuz’s contract, thereby precipitating an unnecessary and distracting constitutional crisis the nation could ill bear.

The Bar Council had an emergency meeting, but instead of initiating the necessary disciplinary proceedings on the involved lawyer (which would definitely be within its power) it decided instead to march at Putrajaya and hand a petition to the prime minister demanding for a Royal Commission. Next those lawyers would be demonstrating on the streets. So Third World, a la Pakistan! I would have thought those smart lawyers would have concocted some novel legal theory on which to sue the government into action.

Meanwhile Abdullah Badawi was “disappointed,” not at the explosive contents of the video but the fact that it was released. Wake up, Mr Prime Minister! The rot is the Malaysian judiciary, not the taping. If Abdullah does perk up from his slumber, he would probably order the arrest of Anwar Ibrahim!

Chief Justice Fairuz, taking a leaf from the prime minister’s notorious “elegant silence,” issued a terse, “No comment!” It was neither elegant nor silent; instead it was ugly and spoke volumes.

Motive for taping
The quality of the recording is such that it is unlikely to be a fake. With today’s forensic capabilities, it would be foolish for anyone to even attempt this. The lawyer concerned was speaking on his cell phone, meaning, there will be the inerasable digital trail. My monthly cell phone bill details my outgoing and incoming calls. Because of the quality, the video could not be shot surreptitiously as with a cell phone a la the earlier “nude ear squat” episode. Besides, such a device was probably unavailable back in 2002.

The intriguing question then is why the taping was made in the first place. Dispensing with the most common and obvious reason – stupidity – I posit a few.

One is that basic human emotion: vanity. The bragging rights of accumulating the next million after you have already acquired a few declines very rapidly. You need some other trophies, like an embellished royal title or additional wives (for Muslims). If you already have those, or cannot acquire them, then the next intoxicating fantasy would be to be a kingmaker, or fancying yourself as one.

For a lawyer to be able to brag that you could “handle” senior judges must be the ultimate high. If also considerably enhances your ability as rainmaker. Years later in your old age, your skeptical grandchildren might attribute your boasts to nothing more than the rambling of a senile mind, unless of course you have the video to prove it!

Closely related to vanity is arrogance. Humility is when you could manipulate the nation’s judiciary and have the quiet satisfaction; arrogance is when you flaunt it. This lawyer Lingam was certainly flaunting it!

Alternatively, I do not put it below this shyster to put on this monologue with an imagined targeted senior judge at the other end, a la Lat’s old cartoon, and then purposely “leaked” the tape out. It would certainly be a headline grabber. As for a motive, rogues are known to do this to each other when they have a falling out. There is one quick way to check this: examine the tape to determine when it was manufactured.

The last possibility is that this could be an insider’s job, perhaps an employee’s scheme to get even with his or her boss just in case he would get nasty in future. Knowing how law firms’ employees are treated in Malaysia, this is a real possibility.

No remedy
After much delay and amidst speculations, Abdullah finally appointed, apparently at the Ruler’s insistence, Justice Hamid Mohamed as President of the Court of Appeal, and Justice Alauddin Sherif as Chief Justice of Malaya. The two are highly regarded for their integrity as well as for being apolitical and independent minded. No wonder they were not Abdullah’s initial choice!

Abdullah also appointed a private lawyer Zaki Tun Azmi directly to the Federal Court. He was on Umno’s “Money Politics” disciplinary board. Lately he was known more for dumping his young Thai bride (his second, third, fourth?) and then asking her to burn their wedding certificate that was issued in Southern Thailand. Such personal integrity! The surprise is that the Council of Rulers consented to the appointment.

Perhaps Zaki Azmi was Abdulalh’s ideal choice for a future Chief Justice. That would of course reflect on Abdullah.

The rot in the judiciary predates Abdullah. However, he had the opportunity to reverse the trend or at least stem the decline with these new appointments, but as with the massive electoral mandate he received in 2004, he squandered it.

Many are advocating for an independent Judicial Commission to deal with judges’ appointments and promotions. I disagree. Judges and the judiciary generally must be accountable to the public. While I would not have judges be elected, as in some jurisdictions in America, the current system with judges appointed by the prime minister and consented to by the Council of Rulers is a good substitute. There is no point wasting time and effort tinkering with the current system.

What is needed instead is for the prime minister to be wise in his appointments and to open the field as wide as possible. In America, federal judges are nominated by the President and then consented to by the Senate, after a public confirmation hearing. If the president were stupid enough to nominate someone equally stupid, the Senate would not hesitate to deny the confirmation, after the appropriate public humiliation of the hearings. Additionally, the Bar Associations, legal scholars, and editorial boards would never shy from voicing their opinions.

The prime minister cannot abdicate his responsibility in selecting judges. If Abdullah needs guidance (he obviously does!), I suggest that he reads Lee Kuan Yew’s memoirs. If he finds the volumes too thick and tedious, I can help Abdullah by referring him to the relevant few pages.

Waiting from directive
Elsewhere I commented on the intellectual and experiential insularity of Malaysian judges. They are almost exclusively drawn from the civil service, with minimal or no outside experience in academia, private sector, or elsewhere. They follow directives only too well.

I was stunned that Chief Justice Fairuz, when confronted with the evidence that he had promoted judges who had been delinquent with their written judgments, would write to the prime minister instead of handling the issue himself. Presumably Feiruz was awaiting arahan (directive) from the prime minister. So much for his appreciation and understanding of the concept of separation of powers!

That more than anything reflects the caliber of Fairuz. Don’t get me started on the quality of his legal writings and commentaries!

In the end it does not matter what system you have if those responsible for selecting our judges do not do the job responsibly. The rot in our judiciary is not with the system but with the personnel. The system has produced such judicial luminaries as Tun Suffian and Raja Azlan Shah. It could do it again.


《當今大馬》07年10月9日 晚上8:09
如果首席大法官阿末法魯斯還存有任何個人榮譽和職業操守意識,他應該立刻辭職。如果首相阿都拉對自己的領導和道德還負 有些許責任,他不應該延長首席大法官即將在十月期滿的合約。如果大馬律師公會對社會還負有法律上的義務,以及自我監督的專業,在前首相安華公佈公佈臭名昭 彰的林甘影片之後,他們將會取消林甘的律師資格。

唉,從過去記錄來看,不要期望這些,這是大馬無可奈何的現實。延長法魯斯的合約是國家經不起的憲法危機—這突如其來的憲法危機是不必要且令人困惑的, 現在只好等最高元首拒絕延長法魯斯的合約。




以該影片的錄音品質來看,那不可能是假的。以現在的偵察技術來說,任何嘗試這樣造假的人都很愚蠢。涉案的律師用手機撥電話,意味著將有不可刪除的通話記錄。我每個月的手機帳單清楚標示撥出和接聽紀錄。以該影片的品質來說,這不可能像是早前在我國發生的“裸蹲案”(nude ear squat)事件那樣被偷拍的。再說,在2002年或許也沒有那樣的儀器。







經過一番拖延和猜測當中,以及在王室統治者的堅持之下,阿都拉終於委任哈密莫哈末(Hamid Mohamed)法官爲上訴法庭主席法官和阿拉勿丁沙裡夫(Alauddin Sherif)法官爲馬來亞大法官。這兩位大法官的道德感和不涉及政治的獨立作風,向來備受尊崇。難怪他們不是阿都拉最初的選擇。

阿都拉也委派一個私人律師查基(Zaki Tun Azmi)到聯邦法院。他是巫統“金錢政治”的紀律委員會。他最近比較有名的事情是和一個年輕泰國小妾(不知道是第幾個小妾?)離婚,聽說他還要那小妾把他們在泰南簽署的結婚證書付之一炬。這種個人道德!令人訝異的是,統治者委員會竟然批准該項委任。




現在迫切需要的事情反而是首相委任法官時要放聰明一點,並且盡可能開放競爭。在美國,聯邦法官由總統提名,然後在公共聽證會之後,參議院才會批准。如果總統很笨,委任一個跟他一樣笨的人選,參議院在經過公共聽證會的聽證和公開羞辱之後,會毫不猶疑地拒絕批准該提名。另外,律師公會、法學學者和輿論也不會羞於表達他們 的意見。





如果有權遴選法官的人沒有盡責,到頭來不管我們擁有什麼制度都是枉然。我們的司法制度並沒有腐化,腐化的是當中的人事。這制度曾經培養出司法界裡非常傑出的人物,例如敦蘇菲安(Tun Suffian)和阿茲蘭莎蘇丹(Raja Azlan Shah),現在當然也可以再度出現司法泰斗。

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