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RCI on Lingam Tape – test of whether Mahathir is right that Cabinet is “half-past six”

The Cabinet must prove Tun Dr. Mahathir wrong that it is “half-past six’ by establishing a wide-ranging and unfettered Royal Commission of Inquiry on Wednesday to deal with the root-and-branch problem of the crisis of confidence in the judiciary going back for 19 years and not just deal with the “tip of the iceberg” of the Lingam Tape.

International Islamic University constitutional law expert Professor Dr. Abdul Aziz Bari is right his interview with New Sunday Times in describing the Lingam Tape as “just the tip of the iceberg” after the state of the judiciary after 1988.

This led to the question — “If the video clip is the tip, what is the iceberg?” and the following answer in “Putting confidence back in judiciary”:

“A: How the people are selecting the judges, how the judges are having behind-closed-door relationships with lawyers, and how lawyers manage to predict or determine the outcome of cases.

“This is something very serious when it comes to suits. If this is the case, then people won’t have confidence in the judiciary.

“The judiciary’s strength is the public’s confidence. In law, you don’t have to establish bias: if the person cannot convince you of his or her integrity, then he’s got to disqualify himself.

“The mere likelihood (of bias) is good enough to establish a real bias. The moment it (the confidence) is lost, it is difficult to get it back.”

Earlier in the interview, there was a specific Q & A on the “scope of the inquiry”, viz:

“Q: What should be the scope of the inquiry?

“A: Since the matter is very much connected to independence, integrity and corruption, then these are the things that should be looked at, not just to establish whether the video clip is authentic.”

The de facto Law Minister, Datuk Seri Nazri Aziz has stated his position many times that he saw nothing wrong with the judiciary apart from the isolated case of the Lingam Tape incident.

It would appear that Nazri had been sleeping for 19 years about the state of the judiciary in the country.

The question is whether all the other Ministers in the mega-Cabinet of 33 are of the same mind as Nazri, also sleeping through the past 19 years of the two-decade-long crisis after crisis over the independence and integrity of the judiciary, completely unaware or dared not be aware of the repeated plunge in national and international confidence in Malaysian judiciary?

Furthermore, will the Cabinet on Wednesday limit the Royal Commission of Inquiry just to the Lingam Tape instead of giving it completely unfettered powers to deal with the branch-and-root problem of the 19-year crisis of confidence in the judiciary, confirming beyond a shadow of doubt Mahathir’s condemnation of it as a “half-past six Cabinet”?

54 Replies to “RCI on Lingam Tape – test of whether Mahathir is right that Cabinet is “half-past six””

  1. The question is whether all the other Ministers in the mega-Cabinet of 33 are of the same mind as Nazri, also sleeping through the past 19 years of the two-decade-long crisis after crisis over the independence and integrity of the judiciary, completely unaware or dared not be aware of the repeated plunge in national and international confidence in Malaysian judiciary?

    BY Lim Kit Siang
    ________________________________________________________

    Mr Lim, it does not matter, they have already proved to us beyond a shadow of a doubt that they suck at their jobs, and they are indeed slumbering. We the people of Malaysia dont want them. We want them replaced.

  3. It is really disappointing to hear from the law minister that there is nothing wrong with he judiciary when you know there are full of worms and they are slowly crawling out one by one now. The denial syndrome seems to be an easy escape route for all the malice in the government. Only when they find that they cannot deny they will twist and turn better than an acrobat to lie and when they cannot lie they will show of force and make use of the various acts (ISA,OSA, Printing and Publication and so on and so forth to threaten)
    Remember this guy with his peanut brain said that the government finds i difficult to have non- Malays as departmental heads because almost all the subordinate staff are Malays. I ask him , how com you can have Mayors, council presidents in all the cities and local councils when in almost all cities the majorities are non-Malays and so is in many municipalities. If you can have such nuts holding so much power and talk without thinking what can we expect of this bodohland. We can expect more marches because these nuts cannot do the right thing at the right time and at the right place.

  4. pwcheng, dunno whether the pee-brain blood sucker still alive or not…
    ask him shall we change the Wilayah, Perak Penang ministers, Yang Di-Pertua, cities and local councils to other religion… else they dunno what we’re doing…

    if he isnt on the earth anymore please send my regards to him, else i going to send him a suckle…

  6. Given the comfort and privileges that they and their families and their mah chai are enjoying, our current ministers and senior civil servants are of one voice that everything is OK and perfect, nothing wrong.

    The general elections are OK too as the current practices guarantee their elections and ensure that BN will continue the nation with >2/3 majority.

  7. Over the weekend Australians went to the polls and took a swing, sent their 4-term Prime Minister John Howard flying into the wilderness. Yes, the Aussies did it, John Howard was comprehensively destroyed in the GE and the sweetest of all, they made sure he lost his seat as well!
    Can we expect Kepala Batas to do the same?

    PM-elect Kevin Rudd within 24-hours of victory jumped straight to work and called for changes as he promised.
    Our Kampong idiot spent 4 years in office and no changes yet. Is this not “Half-past 6” then what is it?

    Malaysians, jangan muda lupa ya.

  9. “The judiciary’s strength is the public’s confidence. In law, you don’t have to establish bias: if the person cannot convince you of his or her integrity, then he’s got to disqualify himself.” Prof. Aziz

    With all due respect to the Professor, I think his statement contains inaccuracies.

    The confidence the public has in the judiciary is the judiciary’s strength. In law the appearance of bias is as important as bias itself. If the judge is related to one of the litigants or has even a remote interest in the outcome of the case, he must recuse himself from the case. If the judge has no integrity he should not be in the business of judging.

  10. In a very loose sense, the famous Gettysburg Address made by President Abraham Lincoln on Nov 19, 1863 is relevant for Malaysians as we ponder on the next step forward:

    “Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

    “Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

    “But, in a larger sense, we can not dedicate – we can not consecrate – we can not hallow – this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us – that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion – that we here highly resolve that these dead shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth.”

    Please try and localise the elements of this speech.

  11. why are you taking Tun’s words and using it against Pak Lah. You must realise that the so-called tape is the doing of Tun’s adminstration. You should instead put all blames to Tun and not take him as you “hero” to use him and work against Pak Lah …. Just don’u understand you at all …

  14. After losing the elections, John Howard congratulated Kevin Rudd and urged all Australians to look forward, saying that this was how REAL DEMOCRACY works.
    Compare this to Malaysia………where the mentality is so backward. How can one expect the country to go forward when the thinking is backward and regressive?
    Answer: The rakyat has to really start the changes and start thinking for themselves. After all, its your future generation who will progress or continue to sink even lower. And the TIME for action is NOW, not besok lusa.
    TIME to show some guts like the battler Aussies who are always prepared to vote for a better tomorrow. TIME to throw out sh*theads like AAB, SemiValue and the rest unless Malaysians are now somehow addicted to the smell of dung, God forbid!

  16. “You should instead put all blame on Mahathir and not take him as your “hero” and then use him and work against Pak Lah …. Just don’t understand you at all …” Zack

    Have you not heard of using your adversary’s own force to floor him? Obviously, you’re not into martial art.

  18. “You must realise that the so-called tape is the doing of Tun’s Administration. ” zack

    Don’t they belong to the same party?

    “So-called tape”?? Do you doubt that it was a video tape? Are you saying the tape is a figment of our imagination? Which psychiatrist have you been seeing?

  19. Dear undergrad2,

    “The judiciary’s strength is the public’s confidence. In law, you don’t have to establish bias: if the person cannot convince you of his or her integrity, then he’s got to disqualify himself.” Prof. Aziz

    With all due respect to the Professor, I think his statement contains inaccuracies. The confidence the public has in the judiciary is the judiciary’s strength. In law the appearance of bias is as important as bias itself. If the judge is related to one of the litigants or has even a remote interest in the outcome of the case, he must recuse himself from the case. If the judge has no integrity he should not be in the business of judging. — undegrad2

    I think undergrad2’s written language is more verbose than the Professor’s spoken language. The Professor’s statements are more succinct. Correct me if I am wrong.
    For example, is there any difference between saying “Your strength is your confidence” and “Your confidence is your strength”? If there is, then undergrad2, you are right there is inaccuracy. Is there any Professor of English around to help to clarify?

    However, in real life in the courtroom battlefield, we may not be so lucky to experience such thing as “if the person* cannot convince you of his or her integrity, then he’s got to disqualify himself.” Maybe, there is an inaccuracy here. Again, I may be wrong.
    * the person I believe refers to a judge.

    To recuse a judge, the onus is on you to raise “real apprehension of of bias” against the judge. Like the Professor said, you need not prove that the judge is really biased. You need only to provide evidence that a reasonable person in the street having all the facts before him regarding a judge’s conduct will believe that he will not be impartial in carrying out his judicial duties. However, it is not going to be that easy as we would like to think. The challenged judge is not going to make any effort to “convince you of his or her integrity” so as to avoid disqualifying himself. (I shall use “himself” to include both genders). The judge may insist on hearing your motion to recuse himself. Do you think he will slap himself in the face by recusing himself? If not, how can the mover of the motion succeed in recusing a biased judge? Any Professor of law around to clarify this matter here? How about Professor Dr Abdul Aziz Bari lending a hand here?

    This impartiality and remedy matter may go deep into the core of citizens’ right to fair trials, which should be at the top of the terms of reference for the RCI.

  20. A fellow in the consumer grapevine told me that many malaysian judges when faced with a GLC case as against someone not will generally rule in favor of GLC. How much truth? God knows. However in a personal matter, I was surprised to know in …. a Hire Purchase related case the judges were ignorant of the basics of the Act.i.e HPA1967. The rules say the matter shall be decided in an open court and yet the judge took it in the chambers. In his honourable’s grounds he stated it was in open court. Oh! the clever one.

  21. “To recuse a judge, the onus is on you to raise “real apprehension of of bias” against the judge. Like the Professor said, you need not prove that the judge is really biased. ” EARNEST

    The judge is under duty, has no alternative but to recuse himself or hersel if he or she happens to know the litigants (one or the other or both) personally or is even remotely related to either or both; or if there is even a remote possibility of him or her having an interest in the outcome of the case – which interest is not limited to pecuniary interest.

    The appearance of bias is more important than bias itself. Justice must not only be done but be seen to be done.

  22. But then you may ask what happens if the judge does not recuse himself? A motion for a re-trial may be moved by either party and can sometimes happen mid-trial the moment it is discovered but without infringing on the rule against double jeopardy.

  29. The Lingam tape is about judge-fixing and case-fixing that occurred during the time of Dr Mahathir’s watch.

    The thrust of the mass anger among Malaysians is the way the issue was handled by the Pak Lah administration.

    From Sept 19 till now, the Royal Commission of Inquiry has not been set up. How long does it take to do this?

    Must a three-man panel be followed by a three-minister panel and then only the Royal Commission of Inquiry?

    It is now more than two months … and still not Royal Commission. Why?

  31. “If not, how can the mover of the motion succeed in recusing a biased judge? ” says Earnest

    To recuse is to remove oneself (and this refers to the trial judge presiding over the case – civil or criminal). The litigants do not act to force the judge to recuse himself. The judge recuses himself from the case to avoid conflict of interest.

  35. Colonel, Undergrad2,

    The word recuse has 2 variants, i.e. transitive (with object) and intransitive (without object). The two meanings are as follows.

    1. to reject or challenge (a judge or juror) as disqualified to act, esp. because of interest or bias or corruption.

    2. to withdraw from a position of judging so as to avoid any semblance of partiality or bias.

    References:
    We found 22 dictionaries with English definitions that include the word recuse:

    1. recuse : Encarta® World English Dictionary, North American
    Edition
    2. recuse : Compact Oxford English Dictionary
    3. recuse : Merriam-Webster’s Online Dictionary, 10th Edition
    4. Recuse : Wiktionary
    5. recuse : The American Heritage® Dictionary of the English
    Language
    6. recuse : Infoplease Dictionary
    7. recuse : Dictionary.com
    8. recuse : Online Etymology Dictionary
    9. recuse : UltraLingua English Dictionary
    10. Recuse : Wikipedia, the Free Encyclopedia
    11. Recuse : Online Plain Text English Dictionary
    12. recuse : Webster’s Revised Unabridged, 1913 Edition
    13. recuse : Rhymezone
    14. recuse : Grandiloquent Dictionary
    15. Recuse : AllWords.com Multi-Lingual Dictionary
    16. recuse : Webster’s 1828 Dictionary
    17. recuse : WordNet 1.7 Vocabulary Helper
    18. recuse : LookWAYup Translating Dictionary/Thesaurus
    19. Dictionary/thesaurus
    20. recuse : Wikimedia Commons US English Pronunciations
    21. recuse : Law.com Dictionary
    22. recuse : Legal dictionary

    If you encounter a judge who is biased against you for reasons unknown to you, you have to file a motion with supporting affidavit in order to recuse the judge.

    If you think there is no such such thing as “to recuse a judge”, only “judge recuse himself/herself”, try to google “recuse a judge”, you may consider again.

    The rule against double jeopardy states that no one should be tried or punished twice for the same offence. The rule protects citizens from opression by ensuring that the State cannot keep prosecuting a citizen until they are finally convicted. it is a fundamental and ancient rule of law that extends back to the time of the ancinet Greeks.

    However in the UK, retrial of acquitted people is allowed where “fresh and compelling evidence” subsequently arises. In NSW, the rule against double jeopardy was abolished under certain circumstances. — adapted.

    Surely, the rule of double jeopardy can not be infringed at mid-trial. It can not happen before judgment and sentence.

    My question is on what recourse you have to replace a biased judge with an impartial judge. You do not expect the challenged biased judge to recuse himself/herself.

  36. Wow!! Twice deleted! Three strikes and you’re exiled to some remote island in the Pacific. Do we get to choose which island to be exiled to? — Undergrad2

    Undergrad2, Godfather,

    What happened? Are there rules you have breached which caused the deletion or what? Please enlighten.

    Is there anything I need to know to avoid deletion?

  39. “My question is on what recourse you have to replace a biased judge with an impartial judge. You do not expect the challenged biased judge to recuse himself/herself.”

    What do you mean by a “biased judge”?

    There is no procedure to “replace a biased judge”.

    If by “bias” you mean the judge hearing the case is related to one of the litigants, knows one of the litigants and is interested (in the legal sense of the term) in the outcome of the proceedings, he has to recuse himself. A judge cannot refuse to hear a case or ask that he hears a certain case.

    Yes, the judge who has an interest in the case he hears has to recuse himself. What if he doesn’t? If he doesn’t and hides the fact that he is related to one of the litigants or knows the litigant then the decision will be overturned when it is discovered – and a fresh trial commenced. I hate to say this but it is almost a cliche to say that justice must not only be done but be seen to be done.

    If he is biased, his reasoning is likely to be legally flawed and judgment unsound. The judgment will be overturned on appeal.

    Having said that, the legal system is not a perfect one and sometimes there is a miscarriage of justice. A jury trial is no guarantee that there will not be a miscarriage of justice. But an adversarial system is the best we have.

    Until you come up with a better system, I’m afraid we’ll have to make do with what we have.

  40. “However in the UK, retrial of acquitted people is allowed where “fresh and compelling evidence” subsequently arises. In NSW, the rule against double jeopardy was abolished under certain circumstances. ” EARNEST

    Retrial of an accused who has been acquitted? The rule against double jeopardy guarantees that the accused who actually did the crime once acquitted by a jury of his peers would not face prosecution for the same crime twice.

    There are various grounds for appeal; and one of those grounds is the discovery of “new evidence that was not available and could not have been discovered” at the time of the first trial. It does not have to be “compelling” – just “new” and “could not have been discovered” and one which in the courts estimation is likely to make a difference to the outcome of the case.

    You must not confuse “mistrial”, “retrial” and “appeal” – or a motion to reopen or a motion to reconsider. They each leads to different consequeces.

  42. Undergrad2,
    Your explanation of various legal terminology has been most interesting.However your assertion that the rule against double jeopardy guarantees that the accused who actually did the crime once acquited by a jury of his peers would not face prosecution for the same crime twice flies apart in the case of OJ SIMPSON who was found guilty of murder of his wife in the criminal court is charged in the civil court and found guilty in that court.How could that be possible following your assertion?I’ll like to seek your learned opinion in this case.

  43. … flies apart in the case of OJ SIMPSON who was found guilty of murder of his wife in the criminal court is charged in the civil court and found guilty in that court.How could that be possible following your assertion?I’ll like to seek your learned opinion in this case. — AhPek

    Correction: ”
    OJ SIMPSON who was found guilty of murder of his wife in the criminal court” should read

    “OJ SIMPSON who was found NOT guilty of murder of his wife in the criminal court” otherwise he would have been dead meat.

    perhaps the rule against double jeopardy does not apply in USA.
    It does not apply perhaps because the standard of proof in a civil court is much less stringent than that in a criminal court —
    “proven guilty beyond reasonable doubts” versus “proven beyond a shadow of doubt” or something like that.

    Right? Undergrad?

  45. Undergrad2, Godfather,

    you mean play ball is profanity like play scrotum?

    But, the definition I get from online dictionaries are as follows:

    play ball,
    a. to begin or continue playing a game.
    b. to start or continue any action.
    c. to work together; cooperate: union leaders suspected of playing ball with racketeers.

  46. Earnest,
    That’s dead right.OJ SIMPSON was acquited of the murder of his wife in the criminal court and yet the outcome was different when he was tried in the civil court.
    Thanks Earnest, you beat me to it in sporting my mistake.

  47. “However your assertion that the rule against double jeopardy guarantees that the accused who actually did the crime once acquited by a jury of his peers would not face prosecution for the same crime twice flies apart in the case of OJ SIMPSON who was found guilty of murder…” AhPek

    Good question.

    OJ was found ‘not guilty’ in the criminal proceedings. He was found ‘liable’ in the civil proceedings of the ‘wrongful death of his wife’ – not murder.

    No double jeopardy issue there.

    Popular opinion is that OJ did the crime. But justice is not about who did the crime but about proving who did the crime beyond the standard of reasonable doubt. Many criminals escape as a result – but so that the few who are not guilty would not be convicted of crimes they do not do.

    Johnny Cochran was not even a criminal lawyer. It was his first. He was lucky the police messed up!

  48. Earnest,
    The rule against double jeopardy, I believe, must also apply in US and if it is indeed the case,how come OJ SIMPSON who is acquited in the criminal lawsuit which precedes the civil lawsuit can be charged again in the civil court for the same crime. Nobody can be charged for the same crime twice especially when he is acquited in the first instance unless, according to undergrad2, there is a discovery of new evidence which was not available then
    and could not have been discovered.Let’s find out from UNDERGRAD2 what his learned opinion is in this case.

  49. “..perhaps the rule against double jeopardy does not apply in USA.
    It does not apply perhaps because the standard of proof in a civil court is much less stringent than that in a criminal court –
    “proven guilty beyond reasonable doubts” versus “proven beyond a shadow of doubt” or something like that.” EARNEST

    The rule against double jeopardy is a universal rule (the last time I checked) and is not applicable only in English common law jurisdictions.

    An accused cannot be tried twice for the same crime – which is why you often find some of the accused facing multiple charges. If he escapes from the murder charge, there is still the charge of voluntary manslaughter or involuntary manslaughter or kidnapping. Remember an accused is as guilty as the evidence shows.

    You’re right about the higher standard of proof required in criminal proceedings. That standard is referred to as “proof beyond reasonable doubt’ whereas in civil proceedings the lower standard of proof ‘on the balance of probabilities’ applies. This is the reason why it was easier to prove OJ liable for the wrongful deaths of his wife and friend then of the crime of murder.

    Then you may ask “What is the difference between ‘proof beyond reasonable doubt’ and proof ‘on the balance of probabilities’ or “on the preponderance of the evidence?” Let me assure you, you don’t want to go there!

  52. Godfather, DarkHorse,

    Above 21, but not that old to be senile, as implied by DarkHorse. But old enough to notice a generation gap with some of you. I still don’t know exactly what Godfather meant by play ball. It is not profanity but yet got deleted.
    You see, since I gave you all full permission to disparage me for my messages, or even as a messenger for what I write, revealing my real age may cause some inhibition on your part. It is good to hear dissenting views and know where I go wrong. There should be no restriction placed in the way of your absolute privilege granted you to criticize me, however severely. Believe me, I can take it without any resentment whatsoever. You will not “tell me the truth even if the truth is painful” — borrowed from Abdullah — if from my exact age, you may discover that I am actually your best friend, your secret lover or your spouse.

  53. Dear AhPek,
    I do not know the answer yet. But as Undergrad2 mentioned, the suit were filed differently, one for murder in a criminal court, the other for wrongful death in a civil suit.
    But, what has been puzzling me is what I have read in the NST before Ahmad Fairuz’s retirement regarding the retrial of a Federal Court case involving an established Star journalist Joceline Tan Poh Choo (formerly from NST) who was acquitted in a defamation suit. Does that mean that sometimes the rule against double jeopardy does not apply in Malaysia? Undergrad2?

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