malaysian justice

Statement by Parliamentary Opposition Leader, DAP Secretary-General and MP for Tanjong, Lim Kit Siang

Mahathir should present a White Paper in Parliament to restore public confidence in the integrity and impartiality of the Judiciary by dealing frontally with the many questions that have been raised by the Attorney-General’s decisions on the 33-page poison-pen pamphlet alleging corruption and abuses of power against the judiciary

The Prime Minister, Datuk Seri Dr. Mahathir Mohamed should present a White Paper in Parliament to restore public confidence in the integrity and impartiality of the judiciary by dealing frontally with the many questions that have been raised by the Attorney-General’s decisions on the 33-page poison-pen pamphlet alleging corruption and abuses of power against the Judiciary.

Although at the press conference yesterday to announce the results of police and Anti-Corruption Agency (ACA) investigations into the 33-page poison-pen pamphlet, the Attorney-General Tan Sri Mohtar Abdullah hoped that the “integrity and impartiality of the Judiciary shall not be doubted and questioned henceforth”, the opposite had been the result: - viz, the Attorney-General’s handling of the issue has failed completely to bring an end to such doubts and questions as on the contrary, it has caused the doubting and questioning of the integrity and impartiality of the Judiciary to become even more widespread and pronounced.

This is because the decision by the Attorney-General not to prosecute the author of the 33-page poison-pen pamphlet although a High Court judge had admitted that he was “solely responsible for the authorship and publication” of the poison-pen pamphlet and had resigned as a High Court judge and his announcement that the Police and the Anti-Corruption Agency had cleared the 12 judges mentioned in the poison-pen pamphlet of 112 specific allegations of corruption, abuse of power and misconduct had been met with widespread public disbelief and even dismay for the following reasons:

Firstly, the Attorney-General had been very coy in naming the High Court judge, although it is clear as to who he was referring to. When asked by the press whether it would be unfair to any other judge if they did not get the name correct, Mohtar replied: “Well, what other judge has resigned? In recent history, the only other judge who has resigned is myself.”

The question is why Mohtar is not prepared to name the former High Court judge, Datuk Syed Ahmad Idid Syed Abdullah Idid who resigned on July 1 and the only other judge to have resigned recently.

In contrast, Mohtar felt no qualms in revealing the sex background of the then 15-year-old girl implicated in the allegations involving the former Malacca Chief Minister and UMNO Youth Leader, Tan Sri Rahim Tamby Cik, although such revelations were not only unfair but had nothing to do with the allegations involving Rahim.

Secondly, the decision by the Attorney-General not to prosecute the High Court judge although the police had “identified conclusively” that he was “responsible for the authorship and publication” of the poison-pen pamphlet on the ground that his resignation as High Court judge was “a very strong punishment” is not credible or convincing either.

It raises the question as to whether there are “double standards” and “selective prosecution”, especially bearing in mind other recent cases, such as the prosecution of DAP Deputy Secretary-General and MP for Kota Melaka, Lim Guan Eng and Tenaganita director, Irene Fernandez and the withdrawal of charges, including corruption charges, against Rahim Tamby Cik and Jeffrey Kitingan, when the latter joined the Barisan Nasional.

It also raises the question whether the Attorney-General had usurped the functions and powers of the judiciary, which should be left to decide when meting out sentence whether resignation as High Court judge is already “a very strong punishment” without having to attract other onerous sentences.

If the Attorney-General has enough evidence that Syed Ahmad Idid is the author of the “heinous” poison-pen pamphlet, his constitutional duty is to charge and prosecute him and to leave it to the Court to decide the mitigating circumstances when considering sentence, and not to mitigate on behalf of Syed Ahmad Idid. The Attorney-General is setting a very dangerous precedent where those in high places who commit criminal offences can escape justice because the Attorney-General has confused his constitutional duties and decided to mitigate for them instead.

Syed Ahmad Idid’s full statement to the police as to why he authored the 33-page poison-pen pamphlet should be made public
Thirdly, the public are asking whether it is possible for only one person to be solely responsible for the authorship and extensive publication of the 33-page poison-pen pamphlet when Mohtar had himself declared at the Conference of Judges in Kuching in March that the poison-pen pamphlet was the “act by certain quarters to ridicule, abuse and insult the Judiciary... with the purposive intent to undermine the stability of the nation by removing public confidence in the Judiciary.”

At that Conference, Mohtar had also said dramatically: “Today is the Ides of March. But unlike that fateful day in ancient Rome where brutish beasts succeeded in killing Caesar, today we launch this pre-emptive strike at these conspirators and Insya Allah we will ferret them out, whoever they are and bring them to justice.”

Fourthly, what was exactly the nature of Datuk Syed Ahmad Idid’s admission. When asked by the press yesterday what was Datuk Syed Ahmad Idid’s purpose in writing the pamphlet, whether there was any motive, and if he meant it as a joke, Mohtar replied:

“I don’t know. It is not a joke. It is definitely not a joke. The person concerned has given a full statement to the police disclosing the reason. I am not in a position to disclose the reason but definitely, the act that has been done by him is something that is so serious as to warrant this full-scale investigation and this has resulted in the said judge electing to resign. In the circumstances, we feel that no purpose is served by having further prosecution of the matter”.

Syed Ahmad Idid is generally respected by the Bar and the revelation that he is the author of the poison-pen pamphlet has come as a great surprise to all the lawyers.

As public confidence in the integrity, impartiality and independence of the Judiciary has fallen to its lowest ebb even before the public revelation about the existence and circulation of the 33-page poison-pen pamphlet alleging corruption, abuses of power and improprieties against the Judiciary, Malaysians are entitled to know why a respected High Court judge like Syed Ahmad Idid could have been impelled to author such a pamphlet which had been described by Mohtar as “highly seditious, defamatory and derisive” designed “to smear the good name of the Judges”.

For this reason, Syed Ahmad Idid’s full statement giving the reasons for authoring the 33-page poison-pen pamphlet should be made public, either in the White Paper to Parliament or separately.

Fifthly, the White Paper should address the public question whether one reason why there is no prosecution is because this will avoid any public trial or hearing into the truth or otherwise of the 112 allegations - involving 39 on corruption, 21 on abuses of power and 52 on misconduct - against judges.

It is to be noted that although the Attorney-General said that the High Court judge concerned had admitted to the police that he was solely responsible for the authorship and publication of the 33-page poison-pen pamphlet, there is no mention as to whether he has admitted that there is no basis or truth whatsoever to all the 112 allegations.

If Syed Ahmad Idid had been charged in court, would he have tried to establish the truth of some of the allegations although he admitted to the authorship of the pamphlet?
The sixth question concerns the disposal of the 112 allegations involving corruption, abuses of power and misconduct against 12 judges. These are very serious allegations affecting not only public confidence in the integrity and impartiality of the judges, but also the overall problem of corruption in Malaysia.

It is vital that the judges named in the poison-pen pamphlet should be cleared of all doubts of corruption, abuses of power and misconduct in a manner which commands public confidence and credibility.

Unfortunately, the ACA has itself lost all credibility as an anti-corruption agency which has the power and freedom to deal with corruption involving those in high public places, and no clearance from such an ACA could add to anyone’s integrity and credibility.

The best way to clear the Judiciary of the allegations of corruption, abuse of power and misconduct as contained in the 33-page poison-pen pamphlet is through the process of an independent and full inquiry by investigators who command public confidence and respect.

It is for this reason that the Prime Minister should present a White Paper to Parliament to address properly and adequately the two important issues arising from the poison-pen pamphlet: the authorship and the truth or otherwise of the allegations so as to really restore public confidence in the independence, integrity and impartiality of the Judiciary.

(10/6/96)

Justice in Jeopardy
The following is Anwar Ibrahim's statement to the Federal Court, requesting that Chief Justice Eusoff Chin step down from hearing his appeal. The statement, except for minor editorial corrections, is as circulated via email and in the newsgroup soc.culture.malaysia by M.G.G Pillai.

MGG attached the following introductory statement to it:

The newspapers and the official media today reported briefly but obscurely, of the Chief Justice, Tun off Chin, refusing to recuse himself from hearing the Federal Court appeal by Dato' Seri Anwar Ibrahim. He argued the appeal himself, having discharged his counsel to do so. Indeed, if his counsel had made the submission he made, they could have landed themselves in court for contempt. The earing was to appeal against a Court of Appeal decision that the Prime Minister need not appear as a defence witness in Dato' Seri Anwar's defence. What follows is the transcript of his statement to the court:

DATO' SERI ANWAR IBRAHIM: 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 thereforeafter are conducted by a competent, independent and impartial tribunal established by law. This tribunal 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 v The Queen (1988) 2 SSR 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 of 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 on guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or
guarantees." (p689)

The applicable test for recusal as laid down by the Appellate Courts of Australia, Canada, United Kingdom and recently reiterated by the Constitutional Court of South Africa is as follows:

"The question is whether a 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 hear 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 oaths 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 a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds in the past of the litigant to apprehend that the judicial officer, for whatever reasons, was not or will not be impartial." (President of the Republic of South Africa and Others vs South Africa Rugby Football Union and Others 1999 (4) SA 147)

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 informed person will perceive.

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

My application for recusal are based on the following grounds:

   1.I have ample evidence to show that the Chief Justice 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 Deputy Prime Minister, to the fact that the Anti Corruption Agency had prepared a preliminary report against the Chief Justice 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 demeaning his reputation. He further mentioned to me that the   Attorney-General was disturbed that the same lawyer had claimed that the would be recommended by me to replace the Attorney-General, Tan Sri Mohtar Abdullah. I denied. The   following (day?) when I met the Chief Justice 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 for me.

   2.It is now public knowledge that certain improprieties has been levelled 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 bout the CJ's conduct described it as "improper". The revelations about the CJ's family holiday travel to New Zealand with lawyer Dato' V.K. 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 Judge's 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 provided 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 Agung to appoint a tribunal. 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 Waterhouse's report, the fees paid for legal services was considered exhorbitant and "questionable" coming to millions. The CJ was known to have made critical comment on my announcement. I chose to ignore the comments, not being aware then of his close association with Dato' V.K. Lingam.

A Cabinet minister and another 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 and further erode 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 business men 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 was viewed with contempt by the CJ.

The appeal of M.G.G. Pillai and others in the Tan Sri Vincent Tan case reveals serious improprieties in the part of the CJ. Arguments in that appeal were 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 laters. Rule 3 (1) (f) of the Judge's 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, 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 party by Dato' V.K. Lingam shows the extent of the decadence among senior members of the judiciary.

The CJ was apparently impervious, sitting in the same M.G.G. Pillai's appeal when the counsel who argued for the Respondent, Tan Sri Vincent Tan was Dato' V.K. 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' Seri Dr Mahathir had dismissed any possibility of making representations for a tribunal (The Star, June 14, 2000). 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"
(NST, June 17, 2000)

Is my appeal in the agenda, "to see 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 been that the malicious and fabricated charges, inter alia, has been that there was a political conspiracy at the highest level to dismiss, persecute and villify 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 remark 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 Cumaraswamy; some of my 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 statements were 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 (his predecessor). 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 mission under the UN Conventiion 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 Annan. And this was conveyed to the Cabinet on 3rd December 1997. I alerted my Cabinet colleagues that Param's interview in "Malaysian Justice on trial" merit scrutiny. And by prolonging the issue, and by subjecting to the ICJ, would seem untenable and an embarrassment to the Malaysian judiciary. Understandably, I was overruled by Dato' Seri Dr Mahathir. But, it was 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 Attorney-General 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 of 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 of 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 ubjected to the CJ's victimisation. I have 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 lost Judge Dr Visu Sinnadurai who had such impeccable credentials. Judge Dr Visu had earlier written a memorandum on the judiciary including Proposals for Reform on the Judiciary. The memo was a confidential document to the PM and myself as the DPM. The memo to the PM was submitted through me and I indicated my support to most of the proposals. Unfortunately, being anathema 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 exchanges of challenges in the Press; citing for example the Ayer Molek case being "something amiss in the Judiciary." [see extract of the 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 the Court of Appeal. Judge Dato' Moktar Sidin refused to recuse himself even after my insistence of his clear partiality 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 Mokhtar Sidin was brought up. Subsequently the PM dismissed the allegations without investigations being carried out and facilitated his appointed[ment?]. 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." Often related issues were also highlighted. for example that "the Courts have arrogated to themselves the law making function", usurping the power 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 for 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 cases."

I have often 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 Maomer for the questionable judgement that bear an appearance of being influenced by unseen hands. The facts surrounding the case have been well documented in the Law Reports. But the observations of the Court of Appeal (comprising Dato' N.H. Chan, Dato' Siti Normah Yaacob, and Dato' K.C. Vohrah), when allowing the Defendant's Appeal (on 31 July 1995), on the facts of the case and the procedural manipulations involved bear repeating. Dato' N.H. Chan, delivering the judgement of the Court of Appeal, had this to say:

   a."This is a case about injustice which has been perpetrated by a court of law. This is also      a case of abuse of power 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 powers.
   b.......
   c."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."
   d."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 a few days of the Plaintiff's application (again involving Dato' V.K. 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 a member of the sitting 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 nation's judicial system. Exasperated by such developments, I chose to circulate the Ayer Molek judgements to the Cabinet, and specifically underlining Dato' N.H. Chan's rebuke and the Federal Court's alleged transgression of the Constitutional provisions of Article 122 (2). The Prime Minister interjected by informing the Cabinet that he would seek clarification from the CJ. That episode was cited in 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 (book), "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 thelegitimateexpectations 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 credentials. 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 beliefs. We implore upon them to have the moral courage, respect the rule of law and be dictated by their conscience. For, it is in them that the future and hope of our judiciary lies.

IT is 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 entiments". 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 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 are 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 prosecution preferred against me is, as consistently contended in my defence, a result of a high level conspiracy involving the supremo, Dato' Seri Dr Mahathir himself instructing the instruments of the state to persecute and villify me. I must prove my innocence. I need to be djudicated by an independent judiciary. And I fear with the grounds stated, and with all that I hear of you, subservient to the Prime Minister and now beholden to him, I am apprehensive of your impartiality in this appeal.

Hence, I urge you, please, CJ, recuse.

Dato' Seri Anwar Ibrahim

'I have no hope of justice'

ANWAR delivered the following address in court on April 14, 1999 after Judge Augustine Paul pronounced him guilty on charges which most people believe were trumped up.

First, I would like to thank my lawyers, who have conducted the defence with such dedication and spirit. They deserve the greatest admiration.

Right from the beginning, I had no hope whatsoever that I would be tried fairly. I say this not out of prejudice; I base my statement on information I have been privy to. When I was in government, many senior officials, noting my reformist attitude, used to complain to me about all kinds of afflictions within the government machinery, including the judiciary. A very senior judge, out of his own volition, submitted a detailed report which showed how serious the crisis in the judiciary was. He gave several examples of personal misbehaviour and professional misconduct in the handling of court cases.

I have no hope of justice. The charges are part of a political conspiracy to destroy me and ensure Datuk Seri Dr Mahathir Mohamad’s continued hold on power at whatever cost, even if it means sacrificing whatever little is left of the judiciary’s integrity. "You resign or I charge you." That was the ultimatum the Prime Minister gave on the morning of 2 September 1998. Isn’t this corruption? The Prime Minister uses the judicial system as a tool to exert political pressure.

All the instruments of government--including the Attorney-General’s Office, the Police and, indeed, the Judiciary--are under the Prime Minister’s thumb. In the days of absolute monarchies, the king could do no wrong, rex non potest peccare. That is precisely how this country is ruled now; members of the ruling clique are immune from prosecution and those who go against them are humiliated and disgraced through trumped-up charges.

At the begining of the trial, the Honourable Judge exhibited some courage when he cautioned members of the administration against commenting on the case. But courage left him when the Prime Minister blatantly committed contempt of court by remarking that there would be chaos if I was found innocent. Was this not a warning to the court? And neither did the Attorney-General utter a single word. However, the honourable judge recovered his "courage" and "vigour" when my lawyers tried to question his rulings.

Indeed, this trial has influenced perception regarding our judiciary, not just among Malaysians but the international community as well. It has opened the people’s eyes. The court, in ruling that a political conspiracy was irrelevant and that certain witnesses were irrelevant, has helped me prove to the people that my prosecution was indeed part of a political conspiracy. I could not guarantee achieving this on my own even if I were to go on a nationwide campaign.

Charges were trumped up against me because I worked against corruption, power abuse, cronyism and nepotism in government. And the judge has declared: "Let the whole country be corrupt; it still has nothing to do with this case." But corruption is precisely the issue; it was because I opposed corruption that I was expelled and it is because of corruption that this case cannot be tried fairly.

And while I am accused of corruption, the Attorney-General has not brought an iota of evidence—indeed he has not even tried to prove—that I used my position to enrich myself or my family. But the Prime Minister has directed Petronas to bail out Konsortium Perkapalan, which is owned by his son, Mirzan Mahathir. Isn’t this corruption? In my possession there is a report of an investigation over corrupt practices by a cabinet minister which was submitted to me by the Attorney General. It ends with this sentence: "The Anti-Corruption Agency and the Prosecution Division of the Attorney-General’s Office recommends that B1 (the minister concerned) be charged in court." The report was signed on 14 March 1995 by a prosecutor named Gani Patail. And I have letters written by corporate figures to Tun Daim Zainuddin (when he was Finance Minister) which conclude thus: "In the event of my death or permanent disablement, this letter shall serve as irrefutable proof of your claim against my estate." The amounts involved run into hundreds of millions of ringgit. I repeat my challenge to the ruling clique to give full disclosure regarding the approval of licences, contracts and shares by Tun Daim and me and privatisation approvals by the Economic Planning Unit.

The corruption charge against me is not a charge concerning pecuniary gain but one of abuse of power. But in the process of prosecuting me there have been so many startling incidences of abuses of power by the Prime Minister which point clearly to the existence of a conspiracy.

Coercion, ultimatums, even torture were used by the parties charged with the responsibility to fabricate evidence against me. I have evidence of such a conspiracy: from the involvement of the Attorney-General in the police affidavit calculated to vilify me in Dato’ Nallakaruppan’s case, alleging sexual misconduct on my part, treason, leaking government official secrets and corruption, to the cases of coercion and torture of Dr. Munawar Anees, Sukma Darmawan, and Mior Abdul Razak, the statutory declaration of Manjeet Singh, to the meeting between the police and Gani Patail at Bukit Aman on the night of 20th September 1998. But the judge simply did not have the patience to hear all this. As Socrates once said: "A judge must be patient enough to hear the evidence of both parties." On the contrary, in my case, my counsel Zainur Zakaria was found in contempt of court and others were warned that they too would be subject to the same punishment. I have overwhelming evidence concerning the deception and conspiracy but all this was brushed aside; even more so when the names Dr Mahathir and Tun Daim were mentioned, as if the court was more interested in protecting them than getting to the truth.

When I was still in office I referred to the need for legal reform, the need for the independence of the judiciary to be further strengthened. Many of the rich and powerful did not take kindly to my statement while many of the people read my statement with scepticism. Now they are no longer sceptical. As they say, one bad apple can spoil the whole bunch. The actions of a small group of people have destroyed the judicial institution. Only that I had unwittingly become the victim in order for people to be convinced about this. I have no regrets whatsoever. Perhaps this is just a small sacrifice on my part to convince the people how urgent and vital is the need for reform in this country, especially in the police force, the AG’s Department and the Judiciary.

Justice is the soul of a nation. Our tragedy is that there are people who are prepared to sell their souls for a pittance.

I was brought up on the adage: a tiger’s legacy is its stripes, a man’s legacy is his name. So, if I may ask, what is a judge’s legacy? Surely nothing if not his judgments. If his judgments be just, then they would be remembered for generations. Otherwise, his injustices will stink till Kingdom come.

I have been dealt with a judgement that stinks to high heaven. This is an absolute disgrace. An interpretation of corruption which is ludicrous, nauseating, in fact, when one considers how in Malaysia billions of ringgit of the people’s money are being squandered by leaders to save their children and cronies. They have made greed and unethical behaviour their private domain, rendering themselves above the law.

I have been convicted, but the people know that my conviction was according to the script written by the conspirators. It is not the Court but the conspirators who are sending me to jail. But remember that man is made of body and soul. My body may be incarcerated, but my soul remains free. However, there are those who are outwardly free, but their spirits remain forever shackled, imprisoned by their rank and status. Indeed their souls can be bought and sold.

This trial has been political persecution hiding behind the cloak of the law. I would advise the conspirators to stop this nauseating charade. To all Malaysians, regardless of race or age, I am grateful for their support. Hold fast to the struggle. Love Malaysia. And if we do love Malaysia then the fight against injustice, to establish justice and freedom, must be invigorated. The corrupt and despicable conspirators are like worms wriggling in the hot sun. A new dawn is breaking in Malaysia. Let us cleanse our beloved nation from the filth and garbage left behind by the conspirators. Let us rebuild a bright new Malaysia for our children.