LINGHAM TAPES A RECORD OF IGNORANCE?

 INTRODUCTION

Just when the dust had begun to settle on his previous and unfortunate attempt to create chaos and seize government in the ensuing confusion in Malaysia in 1998, Anwar Ibrahim appears once more to have gravely miscalculated his moves. Demonstrating a mercenary ‘the devil may care’ attitude in his unquenchable lust for power he steps out of the shadows once more hand in hand with another episode of controversy.

The sheer audacity of Anwar’s putsch this time is only dwarfed by the enormity of the arrogance of the man’s ignorance. Using an outdated apocryphal document he calls Video Korupsi Tun Datuk Fairuz dan VK Lingham, Anwar seeks to revive his faded, jaded, personal and political reputation and his leadership aspirations with a sensational policy free campaign. His campaign has at its core, the dissemination of misinformation, mischief and outright defamation aimed at individuals he blames for his spectacular downfall in the Mahathir government.

THE VIDEO (Video Korupsi Tun Datuk Fairuz dan VK Lingham)

All that this now outrageous video is evidence of is nothing more than a mere clandestine recording of what is claimed to be a private conversation between the Chief Justice of Malaysia (at the time) and a lawyer (identified in the video as VK Lingham) if that is what actually occurred when the recording was made.

The tape is nothing more than video footage of a male person (said to be VK Lingham), engaged in a monologue over a telephone, complete with a bottle of unopened Penfold’s red between the camera lens and the man.

There is no evidence of a telephone dialogue. We hear no   other voice from the telephone on that video soundtrack. We see no one else in that video except for glimpses of the individual in the room with Lingham suspected of having set up the recording purportedly on Anwar’s behalf.. There is no evidence that there is anyone at the other end of that telephone line, least of all the former Chief Justice of Malaysia, Tun Fairuz. It is speculated to be Tun Fairuz former Chief Justice of Malaysia at the other end of the Lingham phone conversation (or at least a reference or references to him) which is purely speculation in the absence of evidence to corroborate that claim.

There is no proof that he Tun Chief Justice Fairuz is present in any form in that monologue or that he reciprocates, responds or accepts any proposition being put by the male purported to be Lingham on the video.

The video is in no way by any stretch of anyone’s imagination proof of corruption as claimed by Anwar Ibrahim and members of the Malaysian Bar. More important, the video offers no real evidence capable of corroboration of the claim, leading to proof that either the then Chief Justice Tun Fairuz or VK Lingham were part of any conspiracy to pervert the course of justice or to corrupt the judiciary in Malaysia.

On the other hand by their claims, and if we look deeper and more critically into them, not only at the video, but also at Lingham’s accusers, there is evidence that Lingham’s accusers Anwar Ibrahim and Latifah Koyah have little regard for privacy, nor respect for the law as it is evident from their conduct over the matters relating to this video.

There is less that can be said for respect for the judiciary or the courts of Malaysia by Anwar Ibrahim, LAteefah Koya or the Malaysian Bar in general. What surprises many is the attitude of the Malaysian Bar and its very vocal supporters in the media, who are the drivers of this witch hunt against the Chief Justice Fairuz; and through him their attacks on the Barisan government. Their collective indifference to the lack of any probative value in evidence from the video, the dangers it presents as a piece of documentary evidence in context and, the way they present it to the world. It simply leaves a lot to be desired of the  Malaysian Bar, Anwar and the others in tow involved in advancing the call for prosecution of Lingham and the Chief justice Fairuz.

The video and the allegations that flow from it, and more importantly its impact on justice and the law in Malaysia (if it is admitted into evidence) is not questioned or analysed by those who have a duty to do so. The Malaysian Bar immediately comes to mind in this regard. Instead we find the Malaysian Bar unquestioningly accepting the video as proof of the commission of an offence by Lingham and chief justice Fairuz, to further their own personal and political agendas.

CORRUPTION AND JUDICIAL MISBEHAVIOUR

In the Lingham video affair there are two key issues Anwar and the Malaysian Bar seek to exploit and advance in favour of their own political agenda.  Judicial misbehaviour and judicial misconduct on the one hand. The other being Lingham’s alleged involvement in the role of an interloper in the appointment of judges in Malaysia. Both issues are supported in the Malaysian Bar’s and Anwar’s arguments by what’s from hereon referred to as the Video.

JUDICIAL MISBEHAVIOUR-JUDICIAL MISCONDUCT- CONCEPTS AND ARGUMENTS

*Like the word corruption judicial misconduct and judicial misbehavior has no universally defined meaning. Instead these are malleable terms that can and often are selectively applied to situations that are controversial. Add to it the term corruption or misbehaviour and the conduct enters in new a dimension sounding so reprehensible as to deserve legal sanction. Where judicial misbehaviour is concerned it is noteworthy that many jurists and politicians in common law countries appear not to be in favour of a statutory definition of what constitutes removable misbehaviour, misconduct, incapacity or what divides removable misbehaviour from non-removable misbehaviour in the context of judicial misconduct and judicial misbehaviour. There is widely held opinion amongst internationally renowned jurists and academics that the term misbehaviour or misconduct  as far as judicial officers are concerned should be used in a way that meets the ordinary definition of those terms and should not to be restricted to misconduct in office or to conduct of a criminal nature. A considerable degree of leeway is thereby offered for debate and interpretation as to what constitutes misconduct and as to whether, in any particular case, it constitutes a “hanging offence”.  It will be recalled that the Commissioners in the Lionel Murphy affair, (Lush, Blackburn and Wells) were to some degree in unison about notions such as conduct judged by contemporary standards which casts doubt on a judge’s suitability to continue in office;

• conduct which, being morally wrong, demonstrates the unfitness of the judge to continue; and
• behaviour which represents a serious a departure from the standards of proper behaviour by the judge that it must be found to have destroyed public confidence in the judge.

Perhaps the last of these categories as propounded by Lush, Blackburn and Wells is what Anwar was alluding to. But the manner in which he presented his case and his credentials as the future leader of Malaysia behind the veneer of the tapes leads to more questions being asked about Anwar’s credibility, his capability and his character (his character is an issue when he attacks the character of his opponents) than it does of Lingham. World renowned legal commentator and professor of law, Tony Blackshields of Macquarie university Australia, notes that in the Federal context, (applicable in the Video affair (my opinion)), “Misbehaviour is essentially a political rather than a legal notion”. It was further argued or submitted in the Lionel Murphy matter that the distinction between criminal and non-criminal behaviour is not necessarily going to be very helpful.  For example, while a conviction for a lower or medium level drink driving offence or a minor assault may not be regarded as sufficient for the removal of a judicial officer, non-criminal behaviour such as persistent failure to produce timely judgments or repeated serious rudeness to litigants and/or lawyers could be.*  ( *adapted from the Sallman Paper on Judicial Misconduct 2005)

Anwar did not allude to any of these notions, principles or suggestions in any of his arguments or submission he put forward in this matter. And fatally for their own reputation, neither did the Malaysian Bar. Instead the two went on a rampage clinging on to an outdated, questionable and sensational document  to defame and to vilify two prominent individuals by attacking them personally and by attacking the integrity of those public institutions  Anwar and the Malaysian Bar both have an overriding obligation to protect.  Anwar as a parliamentarian, the Malaysian Bar as officers of the courts of Malaysia.

JUDICIAL MISCONDUCT

There are universally accepted forms of judicial misconduct which occur with great frequency in Malaysia and elsewhere. One of these is the failure of judges to provide written judgements and to provide them on time. There has been much debate and evidence provided on this subject even from the otherwise lame self serving Malaysian Bar. On the face of repeated complaints where proof is readily available from the record and from the Malaysian Bar, for persistent failure to produce timely judgments or repeated serious rudeness to litigants and/or lawyers.

Anwar and the Malaysian Bar would have been better off  and closer to the money by submitting these as examples or proof of judicial misconduct that so concern them, rather than to rely on a feeble sensational Video to make their case against the judiciary, then fall on their swords in the process. Instead they have collectively gone on a frolick of their own embarking on what Anwar does best, vilifying and defaming individuals with his sensational rants and raves, his threats, his pathetic martyr image, all of which appeal to his followers for pity.

PROOF VERSUS PUDDING INADMISSIBLE EVIDENCE

If this is Anwar’s and the Malaysian Bar’s idea of proof of corruption and proof of the truth to their assertions, then that unfortunate video at one time in circulation, purporting to show Anwar’s good wife engaging in an intimate encounter with a white male in an unidentified hotel room, (an Australian or American journalist by the commentary), is by these same standards he applies to Fairuz and Lingham, evidence of his wife’s infidelity and his party’s immorality. If not then by implication, at least expressly so. 

His wife was then the president of Parti Keadilan Rakyat. That video purported to be of Anwar’s wife which no one should condone or accept for its capacity to inflict undeserving and irreparable damage to her and her reputation, an unsuspecting individual (like Lingham) in the exercise of her private rights ( if it is in fact her), is not proof of her alleged infidelity or immorality.

Nor can that video likewise be said to be a document of public interest or public benefit. Nothing of value turns on it without the benefit of an open trial and testing of the evidence to corroborate the assertions made in that document. In fact it ought never to be tried as what it purports to convey does not constitute an offence if true. Such is the impact and an example of the dangers of cheap entertainment and an immoral political stunt when used to defame and destroy a person, is submitted as proof of offence, as Anwar and the Malaysian Bar are attempting with the Lingham Video.

Anyone who supports such a stunt without the benefit of a proper investigation, procedural fairness and conclusive proofs of the assertions made is equally at the very least morally culpable.

THE MALAYSIAN LEGAL PROFESSION

Clearly the Malaysian Bar has a credibility problem. It ought to have unequivocally condemn Anwar’s pernicious theatrics in this regard. It has instead chosen by its membership to publicly and unquestioningly support prosecution of Lingham based on the Video as its primary piece of evidence to justify prosecution. In remaining silent observers and indolent spectators on the sidelines, approbating and reprobating on the issue when convenient, in the face of such an unprecedented assault on the judiciary, the dignity of the office of the Chief Justice and that of the courts, the Malaysian Bar and its is guilty of a gross dereliction of their duty as officers of the courts.

Politics  cannot interfere with such a duty. It is a duty the Malaysian Bar must discharge impartially as is expected of them always. Lawyers by their training are expected to be forensic and detached, not partial and biased. The law cannot operate fairly in an environment where fairness, truth and merit are casualties, whilst mediocrity and bias are the criteria  of the day.

This is an assault on the integrity of the entire legal system which includes lawyers as its largest constituent component. Lawyers ought to know that it is for the courts (and that includes them as officers of the courts) to dispense justice rather than for an individual like Anwar to dispense with justice with their tacit support, in pursuit of purely personal and political objectives. What’s  perhaps most disturbing in this affair is the lack of open discussion or  debate about those critical legal issues of evidence, probity, political and moral integrity, that will eventually impact on all of us, if Anwar and the Malaysian Bar get their way with government on this issue.

The Malaysian Bar for their part, appears to have conveniently ignored these issues with their silence and their selective arguments. They have in the process also conveniently sought to trample on the rules of evidence and justice. Either out of ignorance, professional incompetence or recklessness they now seek to set a new paradigm in the rules of evidence  in Malaysian law.

DANGEROUS POLITICAL OBJECTIVES

The Video purporting to show VK Lingham engaging in a conversation with Chief Justice Fairuz is by all accounts designed to bring the reputation and credibility of the bench and the courts of Malaysia into disrepute.

The Malaysian Bar must remember that the bench is made up of individuals who rise to that position from the ranks of their own esteemed members. Their character as an organization is indelibly stamped on the bench. Interference through breaching the privacy of an individual, using untested perhaps even manufactured evidence, which Anwar and the Malaysian Bar rely on,  is reflective of the extent to which a delusional narcissistic Anwar and his cohorts at the Malaysian Bar will go to in pursuit of their political ambitions.

Anwar and the Malaysian Bar demonstrate an embarrassing inability to distinguish fact from fiction, evidence from proof or a simple understanding of the law and how it works. They demonstrate a level of culpability and recklessness reinforcing the perception they are clearly people with little regard for the law. Some in the media like Malaysia Kini, The Nutgraph and the Malaysian Bar on the other hand willingly and irresponsibly assist Anwar to muster a misguided public in manufacturing consent on the issue of corruption in the Lingham affair.

DUE PROCESS -DOCUMENTARY EVIDENCE- HEARSAY

In legal proceedings of this nature (allegations of criminal conduct) it is generally accepted that there must be some subject matter which falls into an accepted and recognized category at law for determination. And there must be some immediate right, duty or liability or relief to be ascertained and determined by a competent court hearing all the admissible evidence in the process.

In order to establish that an offence has been committed there has to be prima facie evidence of the commission of the offence (ignoring for the moment the magnitude of the offence complained of) based on facts. That ought to be be the first course of action.

Anwar and the Malaysian Bar may like us to believe that they are being chivalrous by their behaviour by being cavalier. Their actions though tend to belie a somewhat more sinister objective, designed for what is by their own implicit admission, a campaign of retribution en route to their ultimate destination, alternative government.

Anwar appears to be totally naive about the dangers of relying on video recordings (second hand hearsay) (a case of sex lies and videos or is it life imitating art?) purporting to show what is clearly uncorroborated ‘evidence’ of proofs that the events complained of occurred. If there was something in the form of inappropriate or unlawful conduct at the primary level which could have been the basis of seeking to admit this Video to corroborate that conduct, then the Video would have served its purpose at law and in fact. Maybe. But to make the Video the primary piece of evidence to draw proof from, to support the contention that either Lingham or Fairuz is guilty of corruption, is of itself criminal. And the Bar appears oblivious to that fact.

In such a vain, villainous attempt to grab power through sensational, unsubstantiated, uncorroborated claims of corruption, it may be useful for Anwar to examine the reasons why courts in common law jurisdictions do not allow for the admission of these types of material against an accused, save in exceptional circumstances and even then only where it is permitted by law.

DANGERS OF HERESAY -THE BABE FACTOR

The highly popular animated film Babe is an Oscar winning film, depicting barn animals speaking effortlessly in English with flawless lip sync, seamless edits and the unmitigated use of computer software generated graphics make it all seem believable.

The film cleverly uses animals in animation to reinforce a cryptic moral message so convincing to its audiences. It provides the most compelling example of the dangers of using the sort of recorded material as the Video in evidence and why the use of such material as the Video is unreliable and dangerous when presented as unimpeachable evidence of proof of anything other than the existence of the document itself.

With the advent of computer film technology now available in “off the shelf” software to anyone desirous of creative or damaging mischief, anyone with half a brain can concoct what Anwar and the Malaysian Bar rely on for their seemingly conclusive and judgemental statements about the Judge and Lingham.

This is not to suggest that Anwar or the Malaysian Bar concocted the Video. That of itself is a subject matter open to conjecture and further investigation. Its provenance is unknown. The point is that it is possible for someone with the necessary tools to create such a Video. The US and Britain have regularly used such means to discredit their enemies from Gandhi, Mao, Ho Chi Minh and of course more recently Islam as a religion and its rebellious icon in some circles Osama Bin Laden.

THE LESSON

If a pig, a horse and other barn animals could be made to speak  and conduct very human dialogues so convincingly in clear precise English, with the use of hi tech tools used in Babe, then the Video Anwar and the Malaysian Bar rely on to secure a conviction against their enemies could also have possibly been the product of the same science. And till all the relevant evidence is tested in open court, the Video ought not to be used as the crucifix to nail Fairuz or Lingham on.

Critically even before the admission of any material as the Video is brought before the courts, the law should be changed, if it is to be admissible as evidence against the two. Existing rules of evidence have no provisions for the admission of such material to reinforce a mere suspicion of criminal behaviour in the context of what Anwar and the Malaysian Bar’s allegation against Fairuz and Lingham are. This is precisely the reason why competent courts do not and are under  an obligation to  exclude such evidence without proper cogent corroborative supporting proofs.

INEXCUSABLE

Anwar as a politician. The Malaysian Bar, the peak professional body of lawyers are two personalities with a considerable degree of experience in the intimate workings of government and the law at its highest levels. Their smear and defamation of the bench is inexcusable, unforgivable, deliberate and without proper cause. It is politically motivated.

If this were the rantings of the ‘man on the street’, then the making and publishing of such defamatory material, labeling it so confidently as evidence of corruption could be tolerated and to some extent excused. However when presented so confidently as proof by someone of Anwar’s and the Malaysian Bar’s caliber, their mischief becomes criminal, deliberate, seditious and amounts to treason.

In Anwar is an individual who so readily points the accusing finger of corruption, malice and inequity towards his colleagues, his partners in crime with whom he once shared a common goal, acting as a repository of the trust of Malaysians.

UNDER SEIGE

Except for his coterie of rabid fanatics, ignorant legal advisors and sycophantic admirers, it is likely that he Anwar will once more be made an example of by the law. If the judiciary is corrupt, then let due process prevail, based on admissible evidence and due process of law.

The general suspicion is that too many within the legal profession themselves find this ‘expose’ of corruption too close for comfort. It is perhaps the reason their silence is deafening and whatever their contribution on the subject, it has been half hearted.

The more pressing problem is the question of whether members of the legal fraternity in Malaysia have the requisite skills or  degree of competence to prosecute or bring an action against those they ‘suspect’ of corruption without revealing a tainted hand. Anwar has tarnished the image of Malaysia’s courts and its judicial institutions to an extent it can only be remedied by locking him up after an open trial and throwing away the key, bad back or not.

The same applies to his legal advisors. In his own words and by implication of what he conveyed at his press conference on revealing the Video, Fairuz is in his cross hairs for revenge because Fairuz he claims was part of a ‘conspiracy’ to destroy him. That’s not good enough a reason to hold the nation and its political and legal institutions to ransom. Or does Anwar and the Malaysian Bar see this as fair game in pursuit of a wider political agenda? Clearly the nation and its people are dispensable commodities where Anwar’s and the Malaysian Bar’s political ambitions are concerned.  

Gopal Raj Kumar