mokhtar sidin

Court corruption alleged

By Richard Borsuk
Staff Reporter of THE ASIAN WALL STREET JOURNAL

This article appeared in the 31 Aug 1999 edition of The Asian Wall Street Journal.

Defense for journalist adds "inappropriate relations"

KUALA LUMPUR - A Malaysian lawyer who represents businessman Tan Sri Vincent Tan Chee Yioun helped write a court decision for a judge and "cultivated inappropriately close relations" with Malaysia's chief justice, a document submitted to the Kuala Lumpur High Court alleges.
The document is the proposed amended defense for an Asian Wall Street Journal reporter sued for defamation by two companies controlled by Tan Sri Tan. It alleges that the lawyer, Dato V.K. Lingam, placed the chief justice, Tun Eusoff Chin, in Dato Lingam's debt "notoriously." The defense document says the families of Dato Lingam and the chief justice went on a New Zealand holiday together in 1994.

In an "affidavit in reply" submitted to the court, the executive director of the two companies that filed the suit asked the court to dismiss the application to file an amended defense, which it described as "incurably defective."

In the High Court on Monday, Judge R.K. Nathan set a hearing on the application to amend reporter Raphael Pura's defense for Wednesday. Also, the judge rejected an application by Mr. Pura's lawyers for the judge to recuse himself from hearing the trial, which is scheduled to begin Monday. The defense lawyers contended the judge shouldn't hear the case because he had expressed opinions in another legal suit arising from the same magazine article that led to the suit against Mr. Pura.

In an Aug. 18 submission, the defense said there was a "real likelihood that a fair trial of the present action" couldn't be attained before the judge. But Judge Nathan said Monday there was "absolutely no need" to recuse himself, as the previous case has "nothing to do" with the suit against Mr. Pura.

Judge's ruling written by attorney VK Lingam

In July 1996, Insas Bhd. and Megapoli tan Nominees Sdn. Bhd. filed in Kuala Lumpur High Court a suit accusing Mr. Pura of defamation of Tan Sri Tan based on comments attributed to the reporter contained in an article published by International Commercial Litigation Magazine in London in November 1995. They seek damages of 40 million ringgit ($10.5 million).
In his defense against the charges, filed in September 1996, Mr. Pura stated he never made the comments that the British magazine attributed to him.

In the proposed amended defense, filed with the High Court last week, Mr. Pura's lawyers said he continues to deny saying what he is quoted as saying. It also says that if the words quoted in the magazine "in their natural and ordinary meaning mean that the reputation of Malaysia's justice system is falling and that the plaintiffs have been identified as contributing to that together with their lawyer . . . then the said words are true in substance and in fact."

The proposed amended defense discusses a libel proceeding brought by Tan Sri Tan, against M.G.G. Pillai, in which High Court Judge Dato Moktar Sidin awarded Tan Sri Tan 10 million ringgit. The document alleges that the 1994 judgment was "written in part by the plaintiff's counsel, Dato V.K. Lingam, and initially typed by the said Dato V.K. Lingam's secretaries, viz. one Jayanthi and Sumanthi." Further, the document claimed, the judgment was "corrected by the said Dato V.K. Lingam and the final draft dispatched" to the judge "on floppy disk."

According to the document, the lawyer placed Chief Justice Tun Eusoff Chin in his debt by getting their families to holiday together in New Zealand. The holiday involved flights together to luxury resorts in Queenstown and Christchurch, the document alleged, where Dato V.K. Lingam and the chief justice "posed for pictures with their arms around each other and with each other's families." The document said the defense will make copies of the photographs "available on further discovery."

Plaintiff's attorneys unhappy ...

In an affidavit to the court Aug. 28, Wong Gian Kui, the executive director of Insas and Megapolitan, criticizes the proposed amended defense on various grounds. The affidavit questions the submission of the proposal three years after Mr. Pura's original defense was submitted to the High Court, saying the "inordinate delay" in making the application has caused "serious detriment" to the companies that filed suit against Mr. Pura. It dismisses a statement by Mr. Pura's lawyers that the delay is attributable to the need to make comparisons and confirmation of the copies of documents to original documents. "A defendant does not take more than three years just to compare and confirm documents," the affidavit says.
Mr. Wong's affadivit contends that the proposed amended defense was filed "for the sole purpose of adjourning the already fixed trial date and to cause grave injustice and prejudice to the plaintiffs."

It says the lawyers for Insas and Megapolitan, during a hearing at the High Court, will demonstrate that the proposed amendments to the defense "in fact leads to new issues being raised by the defendant."

---------- Forwarded message ----------
Date: Sun, 05 Sep 1999 18:51:31 +0800
From: DAP MALAYSIA <dap.malaysia@pobox.com>
Reply-To: bungaraya@listserv.net-gw.com
To: bungaraya@listserv.net-gw.com
Subject: [BUNGARAYA] Eusoff Chin/Moktar Sidin: step down for full inquiry

------------------------------------------------

Speech (2) by Parliamentary Opposition Leader, DAP Secretary-General and MP
for Tanjong, Lim Kit Siang, at the 1999 DAP National Conference at Federal Hotel, Kuala Lumpur on September 5, 1999 at 10.30 a.m.:

Call for on Chief Justice Tun Eusoff Chin and Court of Appeal judge Moktar Sidin to vacate their judicial posts until they are vindicated by a independent inquiry as both have not responded to very serious charges affecting their integrity striking at the very root of judicial independence
==============================

Last Monday, the most serious allegations about judicial impropriety were alleged in court in the Asian Wall Street Journal (AWSJ) defamation case, when the international journal sought to amend its defence.

Although the amended defence was subsequently disallowed by the High Court R. K. Nathan, on technical grounds, the contents of the unsuccessful amended defence had been made public and published in the mass media, and as such, it has become a matter of great public interest as it has a direct bearing on public confidence on the independence and integrity of the judiciary.

The Asian Wall Street Journal, in its issue of August 31, 1999, gave a report on the proposed amended defence, as follows:

"In July 1996, Insas Bhd. and Megapolitan Nominees Sdn. Bhd. filed in Kuala Lumpur High Court a suit accusing (AWSJ reporter) Mr. (Raphael) Pura of defamation of Tan Sri Tan (Vincent Tan Chee Yioun) based on comments
attributed to the reporter contained in an article published by ernational Commercial Litigation Magazine in London in November 1995 and seeking damages of 40 million ringgit ($10.5 million).

"In his defense against the charges, filed in September 1996, Mr. Pura stated he never made the comments that the British magazine attributed to him.

"In the proposed amended defense, filed with the High Court last week, Mr. Pura's lawyers said he continues to deny saying what he is quoted as saying. It also says that if the words quoted in the magazine 'in their natural and ordinary meaning mean that the reputation of Malaysia's justice system is falling and that the plaintiffs have been identified as contributing to that together with their lawyer . . . then the said words are true in substance and in fact.'

"The proposed amended defense discusses a libel proceeding brought by Tan Sri Tan, against M.G.G. Pillai, in which High Court Judge Dato Moktar Sidin awarded Tan Sri Tan 10 million ringgit.

"The document alleges that the 1994 judgment was 'written in part by the plaintiff's counsel, Dato V.K. Lingam, and initially typed by the said Dato V.K. Lingam's secretaries, viz. one Jayanthi and Sumanthi.' Further, the document claimed, the judgment was 'corrected by the said Dato V.K. Lingam and the final draft dispatched' to the judge 'on floppy disk.'

"According to the document, the lawyer placed Chief Justice Tun Eusoff Chin in his debt by getting their families to holiday together in New Zealand. The holiday involved flights together to luxury resorts in Queenstown and Christchurch, the document alleged, where Dato V.K. Lingam and the chief justice 'posed for pictures with their arms around each other and with each other's families.' The document said the defense will make copies of the photographs 'available on further discovery.'"

These are very serious allegations which, if true, strike at the very roots of judicial independence and integrity, and I am very surprised that there had been no response from either Chief Justice whether there had been "inappropriately close relations" between him and Datuk Lingam as to place the Chief Justice in Dato Lingam's debt "notoriously" or from Datuk Moktar Sidin.

DAP calls on Tun Eusoff Chin and Datuk Moktar Sidin to vacate their judicial posts until they are vindicated by an independent inquiry as both have not
responded to very serious charges affecting their integrity striking at the very root of judicial independence.

The silence of the Attorney-General, Tan Sri Mohtar Abdullah to the very serious allegations of judicial impropriety against the Chief Justice and a Court of Appeal judge is also very surprising, as he should be the last person to stand on the legal technicality that the proposed amended defence had not been disallowed but to proceed to ascertain as to whether there is truth or otherwise in the allegations made by the Asian Wall Street Journal
reporter.

-
Lim Kit Siang -

Joint Statement by NGOs on 15th Sept 1999 in Petaling Jaya
Malaysian Judiciary in Question

Recent events are underscoring the continuing political crisis in the country and the continued loss of confidence in the key political institutions of our country. We, the undersigned organisations, wish to draw attention to three recent such events in the last few days, and urge immediate action with regard to them.

Allegations of corruption in the judiciary

The first of these events is the recent expose' in the High Court in the Insas Berhad v. Raphael Pura case that, in an earlier case before another High Court in December 1994, the judgement delivered by YA Justice Dato' Moktar Sidin (now sitting as a judge of the Court of Appeal ) in that case awarding a total of damages of RM10 million to the plaintiff Tan Sri Vincent Tan for libel was written in part by counsel for the plaintiff Dato V.K. Lingam. The Defendant was a well-known journalist M.G.G. Pillai. The proposed amended defence of Raphael Pura said the judgement was typed in the lawyer's office, corrected by him and the final draft forwarded to the judge concerned on floppy disk. The proposed amendments also said that a copy of the draft judgment bearing amendments in the lawyer's handwriting would be provided to the court. These statements in Raphael Pura's proposed amended defence were made to raise a defence to a claim of libel by Insas Berhad with regard to a published statement that "Malaysian justice was up for bid".

The proposed amendments also included allegations that " the same lawyer Dato VK Lingam cultivated inappropriately close relations with the Honourable Chief Justice of Malaysia Tun Eusoff Chin whom he has placed in his debt notoriously, inter alia, by getting the said Honourable Chief Justice and his family on a New Zealand holiday together with his family from 22.12.94 - 30.12.94. The amendments also spoke of photographs of both families during this holiday at expensive ski and fishing resorts in New Zealand.

The amendments were unfortunately refused by the High Court last week. This means that for the moment these issues cannot be investigated at a trial.

It is our view that these are very serious allegations involving corruption which warrant an immediate and public inquiry into the conduct of both Dato Mokhtar Sidin and Tun Eusoff Chin. Regrettably no such inquiry has been commenced either by the judiciary or the government to date. The allegations have and will continue to cause public concern with regard to the independence and integrity of the judiciary in Malaysia and warrant a detailed fact-finding exercise conducted with full transparency.

Since the sacking in 1988 of Tun Salleh Abas, the former Lord President and highest judge of the country, the independence of our judiciary has been questionable. In recent years, a number of cases including the Vincent Tan suit against M.G.G. Pillai, the Ayer Molek Rubber Company case MBf Holdings Berhad v Wee Choo Keong case, the selective prosecution and subsequent conviction of Lim Guan Eng, the politically motivated prosecution and conviction of Anwar Ibrahim have demonstrated the lack of independence on the part of the judiciary.

We call for an immediate Royal Commission of Inquiry to be set up to investigate these recent allegations involving Dato Mokhtar Sidin and Tun Eusoff Chin and to also propose suitable measures to restore public confidence in the judiciary.

Jailing of Murray Hiebert

The second event is the jailing of the journalist Murray Hiebert for contempt of court for his article on the case of Datin Chandra Sri Ram, wife of Court of Appeal Judge Datuk G. Sri Ram, against the International School of Kuala Lumpur for dropping her son from its debating team. Hiebert's article entitled "See you in court " was treated as scandalising the judiciary and lowering the integrity of the judiciary earning him a six week jail sentence, reduced on appeal from the original three month sentence imposed by the High Court.

We express our utmost concern with this jail sentence which is a blow against freedom of expression in Malaysia. The written analysis of Hiebert would appear to be well-within the purview of permitted criticism and comment on the judiciary. The comments by him appear almost mundane when compared with the kind of trenchant criticism leveled against the judiciary in many democratic countries and accepted in the spirit of democratic expression.

We would urge the Malaysian judiciary to note that as an institution it is not above criticism and ought to be able to tolerate a degree of criticism. We are of the view, especially in the wake of the Anwar trial, that public confidence in the judiciary is waning and its integrity under question. A reaction of this nature to public criticism can only worsen the public image of the judiciary.

The alleged poisoning of Anwar Ibrahim

Last week on Friday, it was disclosed in the High Court in the trial of Dato Seri Anwar Ibrahim, the former Deputy Prime Minister, that medical tests showed his body to have very high levels of arsenic measured as 230 microgrammes per gram creatinine compared to the usual levels in adults of 3 - 17 microgrammes. He immediately alleged a politically motivated attempt to poison him.

The allegations raised by Datuk Seri Anwar Ibrahim and his lawyers with regard to his poisoning again raise huge questions with regard to the integrity and independence of key institutions such as the police and prisons. The guarantee of his physical security, as well as of any prisoner in the custody of the police and prisons, is a fundamental human right. In the case of Anwar Ibrahim, who is treated by Amnesty International and local human rights groups as a political prisoner, his physical security is also directly connected with the integrity of the conduct of political affairs of this country.

Whilst the Home Minister Datuk Abdullah Badawi may have ordered an immediate investigation, it is unclear who will handle this investigation - the police, prisons or both. Our earlier experience with the inability of the police to conduct an effective investigation into the assault on Anwar Ibrahim necessitating the setting up of an judicial commission of inquiry leaves us with little confidence in the outcome of the Minister's instructions.

We believe that a Royal Commission of Inquiry made up of selected members of the judiciary who have a reputation of independence will be required to ascertain the truth. In the meantime we are dismayed that there is no serious attempt to be completely transparent about the state of Anwar's health or the treatment he is undergoing for the high levels of arsenic found in his body. We call for full and immediate transparency by the government.

Released on:
15th Sept 1999

--------
List of Endorsers of Joint Statement

1. ABIM
2. Alaigal
3. Aliran
4. All Women Action Society
5. Borneo Resources Institutes Malaysia
6. Centre for Orang Asli Concerns
7. Community Development Centre
8. Democratic Action Party
9. ERA Consumer
10. Gerakan Democratic Belia dan Pelajar Malaysia (DEMA)
11. IDEAL Times
12. International Movement for a Just World
13. Jawatankuasa Sokongan Peneroka Bandar
14. Jawatankuasa Sokongan Peneroka Bandar (Johor)
15. Jemaah Islah Malaysia (JIM)
16. Labour Resource Centre
17. Parti KeAdilan Nasional
18. Parti Islam SeMalaysia
19. Parti Rakyat Malaysia
20. Parti Sosialis Malaysia (pro-tem)
21. Persatuan Sahabat Wanita
22. Pusat KOMAS
23. Selangor Chinese Assembly Hall (Youth Section)
24. Society for Christian Reflection
25. Suara Warga Pertiwi
26. Suara Rakyat Malaysia
27. Sustainable Development Network Malaysia
28. Tenaganita
29. Kuala Lumpur and Selangor Youth Graduate Society
30. Women's Development Centre

---------------------------------
15th Sept 1999

Usul Kenyataan Akhbar Bersama
oleh Badan-badan Bukan Kerajaan (NGOs)

Peristiwa-peristiwa yang berlaku sejak kebelakangan ini telah menambahkan lagi krisis politik di negara ini dan terus menyebabkan kehilangan keyakinan terhadap institusi politik yang penting di negara ini. Kami organisasi yang bertandatangan di bawah, ingin menarik perhatian terhadap tiga peristiwa berkaitan baru-baru ini, dan menggesa tindakan segera diambil terhadapnya.

Tuduhan Rasuah dalam sistem kehakiman

Kejadian pertama adalah pendedahan di Mahkamah Tinggi, dalam kes Insas Bhd. Vs. Raphael Pura. Di dalam kes ini keputusan telah diberikan oleh YA Hakim Dato' Moktar Sidin di Mahkamah Tinggi yang lain pada Disember 1994 (kini bertindak selaku hakim di Mahkamah Rayuan) di mana ganti rugi sebanyak RM 10 juta diberikan kepada plaintif Tan Sri Vincent Tan bagi libel yang telah ditulis oleh peguam bagi pihak plaintif Dato V.K Lingam.Pihak. Defendan adalah wartawan terkenal M.G.G. Pillai. Usul pembelaan baru Raphael Pura mengatakan keputusan telah ditaip di pejabat peguam plaintif, disemak oleh beliau dan draf terakhir diberikan kepada hakim berkenaan dalam bentuk disket. Usul pembelaan itu juga mengatakan bahawa salinan draf keputusan yang mengandungi pembetulan oleh tulisan peguam akan dikemukakan di mahkamah. Kenyataan ini dalam usul pembelaan baru Raphael Pura telah membolehkan pembelaan diutarakan terhadap tuntutan libel oleh Insas Berhad yang berkait dengan kenyatan yang diterbitkan iaitu "Malaysian justice was up for bid".

Pembetulan yang diusul juga termasuk tuduhan bahawa peguam yang sama Dato V.K. Lingam telah mengadakan hubungan rapat dengan Yang Berhormat Ketua Hakim Malaysia Tun Eusoff Chin di mana beliau telah menyebabkan Tun Eusoff Chin terhutang budi , dengan membawa Yang Berhormat Ketua Hakim Negara dan keluarganya ke New Zealand untuk percutian bersama keluarganya sendiri dari 22.12.94 - 30.12.94. Pembetulan ini memperkatakan tentang gambar-gambar kedua-dua keluarga pada masa percutian ini di resort memancing ikan dan ski yang mahal di New Zealand.

Malangnya pembetulan ini tidak diterima di Mahkamah Tinggi minggu lepas. Ini bermakna untuk ketika ini isu-isu tersebut tidak boleh disiasat dalam perbicaraan ini. Pada pendapat kami tuduhan ini sangat serius yang melibatkan penyelewengan yang memerlukan penyiasatan segera dan terbuka ke atas perlakuan Dato' Moktar Sidin dan Tun Eusoff Chin. Malangnya juga tiada penyiasatan sebegitu dijalankan oleh badan kehakiman atau pihak kerajaan. Tuduhan-tuduhan sebegini akan menimbulkan kecurigaan di kalangan orang ramai terhadap dan kewibawaan sistem kehakiman di Malaysia dan memerlukan suatu penyiasatan yang terperinci yang dilakukan dengan ketelusan sepenuhnya.

Sejak pemecatan Tun Salleh Abbas dalam tahun 1998, bekas Lord Presiden dan Hakim Tertinggi negara, kebebasan kehakiman sentiasa dipertikaikan. Sejak kebelakangan ini beberapa kes termasuk kes Vincent Tan melawan M.G.G. Pillai, kes Ayer Molek Rubber Company, MBf Holdings melawan Wee Choo Keong, pendakwaan terpilih dan penyabitan Lim Guan Eng, pendakwaan bermotif politik dan penyabitan Anwar Ibrahim telah menunjukkan kurangnya kebebasan kehakiman di negara ini.

Kami menggesa, Suruhanjaya Penyiasatan Diraja dibentuk dengan segera untuk menyiasat tuduhan-tuduhan berkaitan dengan Dato Mokthar Sidin dan Tun Eusoff Chin dan juga untuk memberi cadangan yang sesuai untuk memulihkan semula keyakinan orang ramai terhadap sistem kehakiman negara.

Hukuman Penjara terhadap Murray Hiebert

Peristiwa kedua ialah wartawan Murray Hiebert dipenjarakan bagi kesalahan menghina mahkamah kerana artikelnya mengenai kes Datin Chandra Sri Ram, isteri Hakim Mahkamah Rayuan Datuk G. Sri Ram melawan International School of Kuala Lumpur kerana penyingkiran anaknya dari pasukan debat sekolah. Artikel Hiebert yang bertajuk "See you in court" dikatakan menghina kehakiman dan merendahkan kewibawaan kehakiman menyebabkan beliau dipenjarakan selama enam minggu, iaitu pengurangan hasil rayuan daripada tiga bulan penjara yang dijatuhkan oleh Mahkamah Tinggi.

Kami mengemukakan kebimbangan kami ke atas hukuman penjara ini yang merupakan penafian terhadap kebebasan bersuara di Malaysia. Penulisan analisis Hiebert boleh dikatakan sederhana jika dibandingkan dengan kritkan yang lebih mendalam yang dibuat ke atas kehakiman di negara demokrasi yang lain yang diterima dengan semangat demokratik.

Kami ingin menggesa badan kehakiman Malaysia mengakui bahawa tiada institusi yang berada di luar kritikan dan harus menerima kritikan hingga ke suatu tahap. Kami berpendapat keyakinan orang ramai terhadap sistem kehakiman berkurang dan kewibawaan dipertikaikan terutamanya dengan perjalanan perbicaraan Anwar. Reaksi sebegini terhadap kritikan awam akan lebih memburukkan lagi imej sistem kehakiman terhadap orang ramai.

Tuduhan Meracun Anwar Ibrahim

Jumaat lepas, semasa perbicaraan Datuk Seri Anwar Ibrahim, bekas Timbalan Perdana Menteri, di Mahkamah Tinggi telah diberitahu bahawa ujian perubatan telah menunjukkan badannya mengandungi arsenik pada paras yang tinggi iaitu 230 mikrogram per gram kreatinine berbanding dengan paras biasa bagi orang dewasa iaitu 3 - 17 mikrogram. Beliau dengan segera mendakwa terdapatnya motif politik untuk meracun beliau.

Pendakwaan yang dikemukakan oleh Datuk Seri Anwar Ibrahim dan peguam-peguamnya mengenai keracunannya sekali lagi mengemukakan persoalan yang luas yang berkaitan dengan kewibawaan dan kebebasan institusi penting seperti polis dan penjara. Jaminan terhadap keselamatan fizikalnya sama seperti banduan lain di bawah jagaan polis yang merupakan tahanan politk menurut Amnesty International dan kumpulan hak asasi manusia tempatan, keselamatan fizikalnya juga berkaitan langsung dengan kewibawaan pengendalian hal-hal politik dalam negara.

Walaupun Menteri Dalam Negeri, Datuk Abdullah Badawi, telah mengarahkan penyiasatan segera diambil akan tetapi ia tidak jelas bahawa siapa yang akan menjalankan penyiasatan ini - polis, penjara atau kedua-duanya. Pengalaman kita sebelum ini telah menunujukkan ketidakmampuan pihak polis untuk menjalankan penyiasatan yang efektif terhadap kecederaan Anwar yang menyebabkan pembentukan Suruhanjaya Penyiasatan, telah menyebabkan kita mempunyai keyakinan yang rendah hasil daripada arahan pihak Menteri.

Kami percaya bahawa Suruhanjaya Penyiasatan Diraja yang dianggotai oleh ahli-ahli kehakiman terpilih yang mempunyai reputasi kebebasan diperlukan untuk memastikan kebenaran. Sementara itu, kami berasa kesal kerana tiada usaha yang serius yang telus mengenai keadaan kesihatan Anwar atau rawatan yang diterima oleh beliau kerana kandungan arsenik yang didapati padanya. Kami menggesa ketelusan yang penuh dan segera oleh kerajaan.

---------- Forwarded message ----------
Date: Fri, 07 Apr 2000 11:49:21 +1000
From: Bala Pillai <bala@m...>
To: sangkancil@l...
Subject: [sk] Judicial Corruption, not Defamation Damages, Is The Problem

Dear Sangkancilers,

IMHO this message didn't make it due to routing hitches in Malaysia then.
Apologies if it is a duplicate.

cheers../bala
bala@m...

---------- Forwarded message ----------
Date: Tue, 4 Apr 2000 08:25:42 +0800
From: "M.G.G. Pillai" <pillai@m...>
To: Sang Kancil <sangkancil@l...>
Subject: Judicial Corruption, not Defamation Damages, Is The Problem

The minister in charge of law, Dato' Rais Yatim, and the new president of
the Malaysian Bar, Mr Sulaiman Abdullah, decry the Malaysian judiciary's
recent practice of punitive defamation damages, often higher than for loss
of life and limb. But they sidestepped the contentious issue of judicial
corruption to which the Chief Justice, Tun Eusoff Chin, as head of the
judiciary, acquiesced, by acts of ommission and commission. Judges are
sidelined not for incompetence but for not being loyal enough. Those not
are handsomely rewarded, especially if they hand in judgements -- as in the
attempted political destruction of He Who Must Be Destroyed At All Cost --
that He Who Thinks He Is Lord Of All He Surveys want. If the former deputy
prime minister could be jailed for misusing his authority, so should the
Chief Justice for misusing his. The runaway defamation awards on spurious
legal grounds is one side product of the general corruption -- if a citizen
commits a fraction of what the Chief Justice, he could be guaranteed to
spend the rest of his life in Sungei Buloh; there is one resident there
who understands that better than anyone else in Malaysia. What Dato' Rais
and Mr Sulaiman Abdullah should spread their focus wider than the tunnel
vision through which they view the problems within the judiciary.

Mr Justice Moktar Sidin, now of the Court of Appeal awaiting and preferment
to the Federal Court, colluded with that eminent lawyer who goes on
holidays with the Chief Justice, Tun Eusoff Chin, and the Attorney-General,
Tan Sri Mohtar Abdullah, Dato' V.K. Lingam, the plaintiff's lawyer, in the
Vincent Tan v M.G.G. Pillai & Ors libel case to frustrate justice by
quantifying general damages, which need not be proved and awarded at the
judge's discretion. This went against the body of legal opinion and Common
Law principles, but the aim in that case was to warn the press and
journalists not to look too closely too closely into how business men make
their money. One article in the magazine in question detailed how Tan Sri
Vinent Tan took over a company in dubious circumstances; the writer
apologised in court for his temerity to detail it but Tan Sri Vincent
adopted the same techniques of insider knowledge and questionable practices
in a series of deals that involved a company called Kestrel, of which a
Sibling was chairman,in the takeover of Hospital Pantai, a case that now
attracts attention by regulatory authorities -- and not just in
Malaysia. The case was rushed through, Mr Justice Mokhtar delivering
judgement which Dato' Lingam helped draft and edit, as alleged in an
affidavit which the High Court, in another defamation action, would not
admit, six months to the day after the write was filed. Tan Sri Vincent
Tan demanded general damages of RM20 million, not in pleadings but from the
witness box, the sum made of spurious assertions from the witness box, and
Mr Justice Mokhtar obliged him with RM10 million, of which my share was to
RM2 million.

Until then, Malaysia followed the Common Law principle of not quantifying
general damages, awarded at the discretion of the judge; if the plaintiff
claimed financial loss, he sought special damages, which he then had to
prove. When the plaintiff is, as in this case, a business man, the stand
of proof of financial loss is stricter. Tan Sri Vincent came to court with
witnesses or proof of any kind for his libel action but got what he
wanted. The Court of Appeal dismissed my appeal, and when the Federal
Court allowed my leave to appeal to it, the Chief Justice promptly ensured
that he would sit in all leave applications. The five-man court allowed for
the appeal was reduced to three and delayed one year. Tun Eusoff refused
to step down or increase the court to the earlier five judges. The appeal
was heard in January 1998, but judgement is not delivered 27 months
later. This in itself is sufficient grounds for Tun Eusoff to be brought
before a judicial tribunal for possible dismissal. It is clear the
judgement is delayed so that Dato' Lingam or his brother can obtain libel
damages running into millions of ringgit for their clients. Only then, I
am convinced, would judgement be delivered.

The Federal Court is in a dilemma, as Mr Suleiman pointed out in his
comments, for the decision on the M.G.G. Pillai appeal would determine if
the creative Bolehland principle of quantifying general damages in
defamation actions should become the law of the land. The overriding issue
here is the judicial corruption that makes the judiciary the laughing stock
not just in Bolehland but elsewhere in the world as well. Dato' Lingam's
Rasputin-like influence upon the Chief Justice, which led to him awarded
damages of hundreds of thousands of ringgit in a disciplinary action
brought by the Bar Council, highlights much of what is wrong in the
judiciary. Besides, could not those who settled defamation cases for
millions for fear of having to pay more should it go to court now sue for
the return of funds if the delay in delivering judgement in the Pillai case
is to ensure a settlement on onerous terms? When a judge is promoted for
compromising judicial independence, as Mr Justice Mokhtar is, and when the
Chief Justice keeps quiet when another High Court judge is accused of
plagiarism, as Mr Justice Malik Ishak was recently, by a Singapore judge,
it questions the very foundations of the administration of justice in this
country. The quantum of defamation damages is but a small part of larger
corruption.

M.G.G. Pillai
pillai@m...

The Full Text of Anwar Ibrahim's Address During His Appeal on the Judge's Decision to Disallow the Defense from Calling the Prime Minister to Court to Testify at His Second Trial
I respectfully am applying to this court for your Lordship Tun Eusoff Chin, the Chief Justice to disqualify himself from hearing this appeal.

The essence of a fair trial is that the proceedings including appeals thereafter are conducted by a competent, independent and impartial tribunal established by law. This principle is enshrined in international law and practice, and the Malaysian Constitution.

Ref: UN Declaration of Human Rights (Article 10), further elaborated in the Covenant on Civil and Political Rights (Article 14(1)).

In Valente vs. The Queen (1988) 2.S.S.R.673

The Supreme Court of Canada set out the distinction between impartiality and independence. It described impartiality as a "state of mind or attitude of the tribunal to the issues and the parties in a particular case" whereas independence focussed on the status of the court or tribunal in its relationship with others particularly the executive branch of the Government. The Court asserted that the traditional objective guarantees for judicial independence must be supplemented with the requirement that the Court or tribunal be reasonably perceived as independent. This additional requirement was deemed necessary to ensure not only that justice is done in individual cases, but also of ensuring public confidence in the justice system." The Court added:

"Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation, It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees."(p.689)

The applicable test for recusal as laid down by the appellate courts of Australia, Canada, U.K. and recently reiterated by the Constitutional Court of South Africa is as follows:

"...The question is whether reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour, and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs and predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds in the past of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial."(President of the Republic of S. Africa and others vs. S. Africa Rugby Football Union and others 1999 (4) SA147)

It is not for the Judge called upon to recuse to say that he will be independent or impartial. It is how a reasonable objective and informal person will perceive.

I am conscious of the presumption that judicial officers are impartial in adjudication disputes. I am equally conscious of the principle that the onus is upon me to rebut that presumption by adducing urgent and convincing facts.

My application for recusal are based on the following grounds:

1. I have ample evidence to show that the CJ craved for an additional six months extension, to ensure that no action would be preferred against him, and to ensure that I fail in my appeal. I am also privy, then as DPM, to the fact that the ACA had prepared a preliminary report against the CJ in 1998 over corruption.

Undoubtedly, there were precedents to the extension what is exceptional in this case is that it was given amidst public knowledge of the CJ's misconduct. And with the issue of the tribunal being pursued and the issue of corruption left hanging, would the CJ dare cause the displeasure of the PM? Particularly so, when I have been appealing to the courts not to allow itself to be used to legitimise political persecution!

In early August 1998, the CJ called on me at the Treasury, initially to express his sympathies and concern over the scurrilous and malicious allegations against me. He then accused a Cabinet Minister and a lawyer of smearing his reputation. He further mentioned to me that the Attorney General was disturbed that the said lawyer had claimed that he would be recommended by me to replace the AG, Tan Sri Mohtar Abdullah. I denied. The following when I met the CJ at Parliament House, I noticed a distinct change in his demeanour and was rather cold and aloof. I gathered later that something was amiss after he was summoned a few times by the PM. It was later confirmed that the PM had decided to dismiss and prosecute me and that the CJ was incorporated into the scheme. This is a major cause of apprehension to me.

2. It is now public knowledge that certain improprieties have been leveled against the CJ. The allegations, together with photographs and other documentary evidence are widely disseminated through the Internet and the alternative media. A serving Minister, when questioned about the CJ's conduct described it as "improper". The revelations about the CJ's family holiday travel to New Zealand with lawyer Dato VK Lingam's family in late 1994, compounded by his attempt to dismiss the episode as "coincidental" in contrast to the facts revealed in the Bowman Report exposed the discrepancies and contradictions and have brought into question the CJ's conduct and credibility. Rule 3(1)(d) of the Judges' Code of Ethics reads:

"conduct himself dishonestly or in such manner as to bring the judiciary into disrepute or to bring discredit thereto ..."

The Constitution provides under Article 125 (3) that a judge could be removed on ground of breach of the Code. The Prime Minister makes a representation to the Yang diPertuan Agong to appoint a tribunal. In the meantime, Article 125(5) stipulates that the judge concerned could be suspended from his office pending the tribunal hearing.

Dato V K Lingam's name surfaced earlier when I presented the preliminary report on Perwaja to Parliament in 1996. In the Price Water House's report, the fees paid for legal services were considered exorbitant and "questionable" coming to millions. The CJ was known to have made critical comments on my announcement. I chose to ignore the comments, not being aware then of his close association with Dato VK Lingam.

A Cabinet minister and a lawyer met the PM and me separately to allege the CJ of the improprieties. Accordingly I advised them to report to the Anti Corruption Agency. I did not initiate the investigations as alleged by the CJ.

Incidentally, attempts by the Malaysian Bar Council to deliberate on the conduct of the CJ and recommend the setting up of a tribunal was evidently frustrated and derailed through a select judicial process providing a restrictive interpretation of Article 125 and 127 of the Constitution.

We had one of the best judiciaries in the Commonwealth, or in this part of the world. However, under the CJ's leadership, it has deteriorated to such a level further eroding public confidence. Even when I was Minister of Finance, the Bar, Bank Negara and the Treasury informed me of several feedbacks from foreign investors and local businessmen, as to their loss of confidence in the Malaysian judiciary. Many of the international contracts now contain clauses that in the event of any dispute or litigation arising from these contracts, the parties involved will not resort to Malaysian courts, but instead subject themselves to arbitration, usually in a foreign forum. The appraisals and concerns expressed on these issues by me in appropriate forums with the Bar, Bank Negara and the cabinet were viewed with contempt by the CJ.

The appeal of MGG Pillai and others in the Tan Sri Vincent Tan case reveals serious improprieties in the part of the CJ. Arguments in that appeal was heard by the Federal Court presided by the CJ on January 12, 1998. Judgement was not delivered until July 12,2000 - more than two and a half years later. Rule 3(1) (f) of the Judges' Code of Ethics provides as follows:

"inordinately and without reasonable explanation delay in the disposal of cases, the delivery of decisions and the meeting of grounds of judgement."

The reason given by the CJ was flimsy, i.e. that the delay was because the judges could not agree on the quantum! (The Star - June 7,2000) However, when judgement was in fact delivered, one of the three, namely Justice Chong Siew Fai, had already retired on July 3. The single judgement written by the CJ was delivered in open court by the Senior Assistant Registrar.

It is also relevant to note that the earlier High Court Judgement was delivered by Judge Dato Moktar Sidin. Revelations on how the judgement was written in part by Dato VK Lingam shows the extent of the decadence among some members of the judiciary.

The CJ was apparently impervious, sitting in the same MGG Pillai appeal when the counsel who argued for the respondent Tan Sri Vincent Tan was Dato VK Lingam, perceived as his close friend. The CJ ought to have voluntarily recused himself from hearing the appeal. Subsequently in another case where Dato Lingam appeared for one of the parties, the CJ recused at the request of the Bar Council when the holiday photographs were produced.

The CJ reached his age of retirement on June 19, 2000, and Dato Sri Dr. Mahathir had dismissed any possibility of making representations for a tribunal. (1) But most amazing amidst public consternation about the CJ's conduct, he extended the CJ's term of office for another six months, suggesting that:

"we have the need to see that everything is in place before he leaves."(2)

(1) See star June 14,2000

(2) NST June 17,2000.

Is my appeal on the agenda: "to see that everything is in place"? This perception that the CJ has become more beholden to the Prime Minister is pertinent. There is reasonable apprehension to the effect. All along my defence has consistently seen that the malicious and fabricated charges, inter alia, has been that there was a political conspiracy at the highest level to dismiss, persecute and vilify me with Dato Seri Dr. Mahathir as the maestro.

In any event, the CJ should not be sitting in any new appeals during the extended six months. Though Article 125 (1) does not expressly say so, yet the purpose of the short extension is to enable the judge concerned to complete any unfinished business like outstanding judgements, and not to be assigned any new cases including appeals.

The CJ on a number of occasions found my remarks on the judiciary objectionable and abhorrent, and strongly protested to the Prime Minister. My decision to keep the rapport with the Bar Council, personalities such as Param Curnaraswamy; some of the speeches including with reference to the LIm Guan Eng case, and the access given to some senior Judges, including Judge Syed Ahmad Idid and Judge Dr. Visu Sinnadurai were regarded with contempt. My statement was seen as a personal attack on him and it angered him enormously.

In his first meeting with me as the DPM, I strongly urged him to accept the overtures from the Bar Council. Unfortunately, the CJ chose to adopt the confrontational politics inherited from Tun Hamid Omar. Be that as it may, that should not preclude my having meetings with representatives of the Bar to listen to their proposals and grievances.

I submitted to the PM and the Cabinet that Param Cumaraswamy, UN Special Representative is entitled to immunity from legal process during the course of his omission under the UN Convention on Privileges and Immunities. The CJ disputed this in a memo to the PM which was subsequently sent to me. Obviously the CJ had prejudiced Param's case and deplored my so-called intervention. Admittedly, I intervened at the personal request of the UN Secretary General, Kofi Anan. And this was conveyed to the Cabinet on 3rd December 1997. I alerted my Cabinet colleagues that Param's interview "Malaysian justice on trial" merit scrutiny. And by prolonging the issue, and by subjecting to the CJ, would seen untenable and an embarrassment to the Malaysian judiciary. Understandably, I was overruled by Dato Seri Dr. Mahathir. But, its most unbecoming of the CJ to cast aspersions and anger against me for expressing my views to the PM and the Cabinet.

In late July, 1998, Dato Seri Dr, Mahathir informed me that the CJ and the AG met him and denounced my speech in London as an attack on the AG's Chambers and the judiciary. I was mindful and circumspect of the sensitivities but I did relate to the students my predicament having to explain the decision on the Lim Guan Eng case, the solution being legal and judicial reform. The PM further intimated to me the CJ's extreme displeasure for what he perceived as personal attacks against him and undermining his authority.

The CJ should not have objected to my meeting Judge Syed Ahmad Idid. He sought an appointment prior to his retirement; i.e. after investigations over his controversial open letter was completed. But these were serious allegations of corruption, abuse of power, and misconduct or the CJ and some members of the judiciary. In retrospect, looking at these complaints, many of the allegations contained therein appear to have been substantiated.

In another case, one of the most qualified judges in the country opted to resign rather than be subjected to the CJ's victimisation. I had personal knowledge of the alleged victimisation through uncouth disciplinary methods and occasional transfers to Muar and finally to Tawau. Again I intervened and intimated the Prime Minister. Unfortunately, the CJ was adamant and the judiciary's last Judge Dr. Visu Sinnadurai who had such impeccable credentials. Judge Dr. Visu had earlier written a Memorandum on the Judiciary including Proposals for Reform in the Judiciary. The memo was a confidential document to the PM and myself and the DPM. The memo to the PM was submitted through me and I indicated my support to most of the proposals. Unfortunately, being anathema to reforms, and seeking a judiciary that works in cohort with the executive, the memo was detested by both the PM and the CJ.

The Memo/Report emphatically states that the "Malaysian Judiciary appears currently to be in a state of turmoil..." The Report enumerated Tun Eusoff Chin's demeanour, alienating the Bar, verbal exchange of challenges in the Press, citing for example the Ayer Molek case being "something was amiss in the Judiciary." (see extract of a Report on the Judiciary, on Eusoff Chin pp.11-13)

The Report attributes the blame to the CJ for aggravating the loss of public confidence in the Judiciary. "It even appears that the appointment of Judges to the High Court in the past few years were made not in accordance with the Federal Constitution insofar as there had been no prior consultation with the Chief Judge, at least of Malaya." As such only people known to be close to him, as cronies were appointed or promoted. A Judge with questionable integrity, and in the wake of negative representation from the Bar was promoted to the Court of Appeal.

Incidentally, this was the same Judge that I sought to disqualify from hearing my case at the Court of Appeal. Judge Dato Moktar Sidin retired to recuse himself even after my insistence of his clear impartiality and bias due to the deferment of his appointment to the Court of Appeal as a result of my meeting with the Rulers. In the pre-council to the Rulers Conference, the issue of alleged corrupt practice of Judge Dato Moktar was brought up. Subsequently the PM dismissed the allegations without investigation being carried out and facilitated his appointment. The CJ took it as a personal challenge that his recommended candidate was objected to.

The Report states, inter alia, "senior Judges are not promoted either because, it is said, the Prime Minister does not approve of them, or because of quota, or even on the ground that such persons are unsuitable as being 'anti-establishment.'" Other related issues were also highlighted, for example that "the Courts have arrogated to themselves the law making function", usurping the powers of the Chief Judge on transfers, distribution of cases, etc., and the fact that the "Judiciary is now rife with clashes of personalities, with less time for the development of the law." And yet most damaging to the image of the judiciary is the perception of biasness, friendly lawyers continue appearing before the CJ and the same judges and "by coincidence or otherwise, these lawyers appear before the same Judges and win their cases."

I have alluded to the infamous Ayer Molek Case, which have generated much public debate particularly in the legal fraternity. It has adversely affected the credibility of Judge Dato Azmel Maamor due to the questionable judgement that bear an appearance of being influenced by unseen hands. The fairs surrounding the case have been well documented in the law reports. But the observations of the Court of Appeal (comprising Dato NH Chan, Dato Siti Normah Yaacob, and Dato KC Vohrah), when allowing the Defendants' Appeal (on 31 July, 1995), on the facts of the case and the procedural manipulations involved bear repeating. Dato NH Chan, delivering the judgement of the Court of Appeal had the following to say:

(a) "This is a case about injustice which as been perpetrated by a court of law. This is also a case of abuse of the process of the High Court and, therefore, it concerns the inherent power which any court of justice must possess to prevent misuse of its procedure and in which the court has a duty to exercise this salutary power.

(b) "Here, the Plaintiffs through their legal advisers have abused the process of the High Court by instigating the injustice through misuse of the courts procedure by manipulating it in such a way that it becomes manifestly unfair to the Defendants. By doing what they did, these unethical lawyers have brought the administration of justice into disrepute among right-thinking people."

(c) ...These observations are made so that people will not say, 'something is rotten in the State of Denmark.' - Shakespeare Hamlet, 1.'

This timely rebuke by the Court of Appeal was welcome by the public because the excesses and corruption were getting pervasive. An expedited hearing by the Federal Court was heard within four days of the Plaintiffs' application (again involving Dato VK Lingam) at an Ipoh sitting. The CJ constituted an unconstitutional Federal Court as it breached the provisions of Article 122 (2) of the Federal Constitution in that on member of the sitting was a judge of the High Court. The Counsel involved was a close friend of the CJ. The Court of Appeal's decision was overturned, and the relevant portions of the grounds of judgement of the Court of Appeal was expunged!

Allegations of corruption and instances of conflict of interest continue to undermine the integrity and rocked the foundation of the nations' judicial system. Exasperated by such developments, I chose to circulate the Ayer Molek judgements to the Cabinet, and specifically underling Dato NH Chan's rebuke and the Federal Court's alleged transgression of the Constitutional provision Article 122(2). The Prime Minister interjected by informing the Cabinet that he would seek clarification from the CJ. That episode was cited on a few meetings by the CJ showing a clear displeasure and prejudice towards me.

The CJ, according to one High Court Judge took exception to some of my speeches perceived to be critical of misdemeanours of some members of the judiciary, particularly my speech inaugurating the seventh Asean Law Association and the chapter 'Justice and the Law�, in my The Asian Renaissance (1996). I retorted to the said Judge that I merely reaffirmed the Constitutional mandate and democratic ideal, including the issue of separation of powers. May I further reiterate:

"Judges ought to exercise their judicial powers in accordance with the rule of law and not the rule of men. In doing so, judges must constantly bear in mind the legitimate expectations of the people as to their competency dedication and impartiality.....

The growing concern of the public regarding the increasing incidences of judicial indiscretions is a matter to be neither taken lightly nor viewed negatively...

Not only must judges display the requisite level of competence and expertise, they must, like Caesar's wife, be above suspicion." (The Asian Renaissance) 1996 (pp. 64-65)

I made reference to judges with impeccable credential. There are many other judges still in our judiciary who discharge their duties according to the oath of office, and who are also guided by their religious duty and moral courage, respect the rule of law and be dictated by their conscience. For, it is in them that the future and the hope of our judiciary lies.

The most distressing that the CJ should consider my clamour for judicial and legal reforms as a personal threat to him. He should not have summarily dismissed it as merely echoing "foreign sentiments." Long before the report "Malaysian Judiciary in Jeopardy" was released, our Lord Presidents, Judges, the Malaysian Bar and others, consistent with all the great traditions of mankind enjoin the maintenance of the rule of law and the dispensation of justice. Clearly, my criticisms of "retrogressive judgements from our own courts" and insistence for "progressive reforms" to be instituted was resented by the CJ. Such reform and reviews are critical to ensure that our ideals of justice are not compromised and our laws not rendered archaic and obsolete. (The Asian Renaissance) 1996 (pp. 68-70).

The test applicable for recusal is whether a reasonable objective person informed of these facts would have any confidence in the Chief Justice to dispense independent and impartial justice. The scurrilous allegations, the malicious persecution preferred against me is as consistently contended in my defense, a result of a high level conspiracy involving the supreme, Dato Seri Dr. Mahathir himself instructing the instruments of the state to persecute and vilify me. I must prove my innocence. I need to be adjudicated by an independent judiciary. And I fear with the grounds stated, and with all that I know of you, subservient to the Prime Minister and now beholden to him, I am apprehensive of your impartiality on this appeal.

Hence, I urge you, please CJ, recuse.

ANWAR IBRAHIM
Tuesday, 1 August, 2000