TEOH BENG HOCK A TEST OF JAMES FOONG’S JUDICIAL INDEPENDENCE
Justice James Foong is a sitting judge of the High Court in Malaysia. Some say, having waded into waters too deep for someone of his caliber, a sitting judge on a public inquiry set up at the behest of government he cannot be independent. Yet Foong J appears bent on attracting as much attention as is possible to that razor’s edge balancing act he willingly agreed to perform for government in the Royal Commission of Inquiry into the death of Teoh Beng Hock (RCTBH). Foong J achieves this by inviting ridicule to his highly questionable management of the RCTBH.
The last thing the RCTBH needs is further ridicule or avoidable criticism leveled at it its performance (or dysfunction) in the way Tan Sri James Foong J and his cohorts have been conducting themselves of late.
The latest in a series of personal and inappropriate remarks directed mainly at operatives of the Malaysian Anti-Corruption Commission (MACC) who have appeared before James Foong J is the one in which he uttered the unbecoming remark and reference of “Silly” to seemingly benign actions of an MACC officer whose testimony he had been hearing recently. They appear to have irritated him.
Foong J then proffers his personal views over the conduct of witnesses without purposive consideration of his remarks or views. He admonishes low level operatives for watching porn during working hours as if it were the core reason for Teoh’s death.
The problem with this is that the scope and terms of reference of the inquiry do not call for moral judgements on the work ethic or practices of individuals within the organization of the MACC. This is an inquiry on letters patent issued by the Agung (King) to investigate the circumstances surrounding the death of a political operative Teoh Beng Hock and not an inquiry into personal habits of individuals at the MACC.
Foong J’s outburst like other comments he has made since the start of the inquiry appears to point to a direction James Foong may already have directed his mind to. And from this may lie the clues as to what may yet be his conclusions from this inquiry or indeed what they are likely to be in the end.
Sadly James Foong J appears to invite the observer to conclude he will find the MACC culpable in the death of Teoh Beng Hock whilst he was in their custody. He will find, it appears, that elusive evidentiary “needle in a haystack” where all others including more competent officers of the law have thus far failed to uncover.
CRITICAL OMISSIONS (BIAS) IN JAMES FOONG J’s LINE OF INQUIRY
Essential to any just outcome from this or any other inquiry or analysis of why and how Teoh Beng Hock died are for the inquiry to find out the reasons for which he Teoh Beng Hock was summoned in the first place by the MACC to be questioned by the MACC, answers without which the RCTBH has little meaningful purpose or objective. They are:
i) What were the reasons for which Teoh Beng Hock was made to appear before the MACC to be questioned? Unless that question is resolved satisfactorily, the RCTBH is on a wild goose chase furthering a distraction from what lies at the root of the inquiry and the causes of the death of Teoh Beng Hock.
ii) To answer this vital first question ( i) above) which many including James Foong J appears bent on avoiding, one has to examine all of the evidence obtained or sought from Teoh Beng Hock by the MACC (and from Ean Yong Hian Wah prior to the interrogation of Teoh Beng Hock) in order to be properly informed or assisted in determining how he, Teoh Beng Hock ended up as collateral damage in pursuit of something more sinister and corrupted than what appears to be the subject of this and previous inquiries into his death.
iii) The individual and the name Ean Yong Hian Wah immediately and controversially springs to mind everytime the name Teoh Beng Hock is mentioned. Question :How could Teoh Beng Hock have been of any relevance, importance or interest to anyone especially the MACC except for the nexus between him and Ean Yong Hian Wah?
iv) Without Ean Yong Hian Wah there would not have been an interrogation or questioning of Teoh Beng Hock or an inquiry into corruption in government. Could Teoh Beng Hock have known something like Kugan that demanded he be silenced? And silenced for good?
v) Why does James Foong J not pursue the missing pieces to assist with his inquiry by following a more inquisitorial line by raising these questions, rather than re gurgitating the discredited evidence of Dr. Pornthip and her legal team? Is it possible that James Foong J himself is now compromised to the extent of having avoided an inconvenient truth or line of inquiry following his own examination of evidence into the factual background of events that led to Teoh Beng Hock’s death?
Is James Foong J afraid of what he might discover by pursuing with vigour, zeal and honesty the real purpose and the objects of the MACC inquiry and the subject of that inquiry, Ean Yong Hian Wah?
vi) Was it not after all the pursuit of Ean Yong Hian Wah and the allegations of his illicit corrupt activities that led the MACC to interrogate Teoh Beng Hock in the first place? Yet the deafening silence from the RCTBH is not only embarrassing. It also lends support to the theory that Ean is now being protected by official silence and distraction by the RCTBH. Where is Ean?
vii) Of equal importance to solving the many riddles in this puzzle is the answer to another vital question which James Foong J may further have difficulty raising or finding answers to. That question being to investigate whether or not Teoh Beng Hock was in fact released by the MACC and free to go home at a point during the investigation from his detention at MACC headquarters prior to his death as has been deposed to by witnesses at the RCTBH.
RELEASED AND FREE BUT UNWILLING TO GO- WHY?
If Teoh Beng Hock was in fact released prior to his death (a point that is uncontroverted) the evidence is that he did not leave the building and remained therein instead waiting in the staff lounge of the MACC building.
This particular point is supported at least in the testimony of one MACC officer tendered at the RCTBH. It was the subject of speculation previously that Teoh Beng Hock was free to leave the MACC prior to his death. That speculation is now laid to rest by the uncontroverted evidence of the MACC witness.
If was indeed the case, a further and controversial question arises as to why Teoh Beng Hock was unwilling or refused to leave the building immediately preferring instead to remain in the lounge;
Further still why did Teoh Beng Hock not contact his employer or family members after his release? Not much interest appears to have been shown in Teoh Beng Hock’s welfare by Ean Yong Hian Wah (or his immediate family for that matter) by at the very least either of them providing Teoh Beng Hock with a lawyer to assist him with his predicament or placing regular calls to the MACC to find out if he had been released or was able to leave when he was released.
Why was Ean so conspicuously absent from the scene and remote from the inquiry? Teoh Beng Hock was a sacrificial lamb with no protection it would appear. Not even a cursory tokenistic protection of the office of Ean Yong Hian Wah during or after the investigation he was caught up in.
It seems odd when in such circumstances a responsible person in Ean Yong Hian Wah’s position would have at least made cursory inquiries about Teoh Beng Hock either directly or through a lawyer. That never occurred. It would have been appropriate for Ean Yong Hian Wah to have sent someone to pick up Teoh at the end of what is believed to be a grueling session at MACC. But that did not happen either.
Teoh’s family appear ready to throw insults and allegations readily at government, the MACC and the courts. Their own conduct appears a bit suspect when they turn their back on the only chance they have to put things right or in perspective, being played for props in the greater political machinations of the DAP it would seem. Anti government slogans appears to have had a greater priority with Teoh’s family than it was for them to discover the cause or circumstances of Teoh beng Hock’s death.
Ean Yong Hian Wah by all accounts appears to have been disinterested, spooked or hiding from something perhaps? What is it that we do not know about this event and Ean Yong Hian Wah’s involvement in corruption that we ought to know of that lies at the heart of this deep dark deep mystery that no one especially Ean Yong Hian Wah wants to speak about?
What is it that prevented or compelled Teoh Beng Hock to take a very odd course of action he did in the circumstances that made him remain on the premises if he were tortured as his family’s lawyers have claimed through “Dr.” Pornthip?
Why won’t James Foong J ask these difficult questions?
This is critical a point that the writer at this stage reserves his comments and responses till the inquiry has had the opportunity to exhaust the terms of reference it is empowered with to inquire into the causes of Teoh Beng Hock’s death amongst other things.
EAN YONG HIAN WAH-A NAME IN INFAMY
Where is Ean Yong Hian Wah in all of this? Why are the results or the trajectory of the investigation into his dealings which precipitated the investigation into corruption that is now distracted by the death of Teoh Beng Hock not being ventilated by the RCTBH?
Why is the RCTBH like its predecessors shying away from this Pandora’s box wherein possibly lies the truth or reason as to who would have had the motive to kill Teoh Beng Hock if he was indeed murdered ?
The inquiry into Teoh Beng Hock’s death is at Royal Commission level perhaps unprecedented anywhere else in the commonwealth for the reasons it is being pursued.
There is no prima facie evidence of any value that Teoh Beng Hock met with foul play except on the discredited evidence of a controversial unqualified individual in “Dr”. Pornthip.
The allegations are based on mere suspicion roused and fanned by self interested sections of the community in Malaysia. Their purpose is to distract the public from the greater evil of corruption that a state government (Selangor) running under the banner of ‘anti corruption’ and the moniker Bersih (meaning clean in the Malay language). The distraction of state government corruption lay at the heart of the reasons for which the MACC had to draw Teoh Beng Hock in for questioning.
Unless all aspects of the life and death of Teoh Beng Hock are transparently and thoroughly investigated, we have a selective inquiry into his death with the sole purpose of a political motive of establishing guilt through the exclusion of vital evidence rather than through an open inclusive inquiry of proper admissible evidence wherever that evidence is to be found.
IN THE EYE OF THE BEHOLDER
James Foong J and his fellow tribunal members are now caught up in the very public eye of a storm, struggling to grapple with issues in a matter they may not have the skills or expertise to deal with.
In the alternative it may well be the case that they are unwilling to deal with those inconvenient truths that are at the core of this inquiry and at the heart of an ugly event.
Investigating the subject of corruption in government can only be done under the protection of law by independent men and women of good character acting in good faith.
The RCTBH lacks the character of independence it ought to be cloaked with and James Foong J’s conduct appears to disqualify him and his fellow tribunal members from claiming the second of these two qualities.
Once more and without being aware of it the opposition has turned the Royal Commission of Inquiry into an adversarial contest with the Malaysian Bar and self interest groups all from the opposition helping themselves to an opportunity to ventilate their distorted perceptions and politically skewed opinions as to what really happened to Teoh Beng Hock.
None of these groups though have thus far provided any admissible, cogent or compelling evidence as a basis for their assumptions in truth or in fact.
PORNTHIP AND JAMES FOONG J- THE SPIDER TO THE FLY
Pornthip’s tainted testimony and her credibility as a witness a self proclaimed expert witness at that (considering she was not properly admitted as a witness, her qualifications or expertise never having been properly verified as she resisted the obligation to answer questions on the subject put to her in the last inquiry) should have sounded alarm bells in Foong J’s head when he reviewed (if he did) material from the previous inquiry and the controversies surrounding it that led to the RCTBH he now heads.
More alarming and disturbing are Dr. Pornthip’s admission to the press to misleading the previous inquiry into the death of Teoh Beng Hock for reasons she states therein. These are sufficient grounds to hold Dr. Pornthip in contempt of the inquiry and render subject to prosecution of a most serious offence of perjury and misleading the courts. Foong J ought to have informed himself of the tyranny of lies and distractions that have been spun around the death of Teoh Beng Hock instead of allowing himself to fall victim to a pantomime worthy of a Greek tragedy where he will destroy himself with the other conspirators.
James Foong J instead sees it fit to invite “Dr”. Pornthip against all conventions, laws and rules of court to embellish the rumour mill that now drives his Royal commission the RCTBH. By doing so he is inviting adornment of already tainted testimony and evidence advanced by “Dr.” Pornthip’s scurrilous and untested fanciful claims to further sully such a controversial and unmitigated disaster as the investigation or inquest into the death of Teoh Beng Hock.
PURGING THE INQUIRY OF ITS OWN CONTEMPT
Unless he is able to excise the demons of past inquiries by rightfully attacking lawyers who acted for the family of Teoh Beng Hock who aided and abetted “Dr.” Pornthip in her misleading of the court and her willful misconduct in perjuring herself bringing the previous inquiry into disrepute, James Foong J will not be able to redeem himself from his own misconduct and biases or purge the inquiry of the sins of “Dr.” Pornthip.
James Foong J must turn his mind to facts in a forensic and detached way. It was the absence of facts and admissible evidence in previous inquests that compelled the only verdict that could be drawn in the circumstances to conclude that Teoh Beng Hock’s death was neither suicide nor murder. An open finding perhaps.
His name calling and scolding of witnesses however little he thinks of them for whatever reason he may have is in professor Sallman’s authoritative paper on judicial misconduct an example of the offence the paper sets out to address.
Without the answers to these vital questions about Teoh Beng Hock, the matter that precipitated the investigation and the information retrieved into Ean Yong Hian Wah’s activities, we are looking through at the matter darkly.