Deal with the rot, not the tape 亟需糾正的腐化司法制度 (Malaysiakini 9 Oct 2007)

Deal with the rot, not the tape
M Bakri Musa
www.malaysiakini.com Sep 28, 07 11:41am
If Chief Justice Ahmad Fairuz has any sense of personal honour and professional integrity left, he should resign immediately. If Prime Minister Abdullah Ahmad Badawi has even the slightest responsibility for leadership and moral duty to the citizens, he should not extend the Chief Justice’s contract, due to expire this October. If the Malaysian Bar Council has any credible principle of societal obligation and self-policing ethics of a profession, it would disbar the lawyer making that phone call shown in the infamous video clip exposed by former deputy premier Anwar Ibrahim.

Alas, judging from past performances, expect none of these. That is the unfortunate reality of Malaysia today. What remains then would be for the King to withhold consent for extending Fairuz’s contract, thereby precipitating an unnecessary and distracting constitutional crisis the nation could ill bear.

The Bar Council had an emergency meeting, but instead of initiating the necessary disciplinary proceedings on the involved lawyer (which would definitely be within its power) it decided instead to march at Putrajaya and hand a petition to the prime minister demanding for a Royal Commission. Next those lawyers would be demonstrating on the streets. So Third World, a la Pakistan! I would have thought those smart lawyers would have concocted some novel legal theory on which to sue the government into action.

Meanwhile Abdullah Badawi was “disappointed,” not at the explosive contents of the video but the fact that it was released. Wake up, Mr Prime Minister! The rot is the Malaysian judiciary, not the taping. If Abdullah does perk up from his slumber, he would probably order the arrest of Anwar Ibrahim!

Chief Justice Fairuz, taking a leaf from the prime minister’s notorious “elegant silence,” issued a terse, “No comment!” It was neither elegant nor silent; instead it was ugly and spoke volumes.

Motive for taping
The quality of the recording is such that it is unlikely to be a fake. With today’s forensic capabilities, it would be foolish for anyone to even attempt this. The lawyer concerned was speaking on his cell phone, meaning, there will be the inerasable digital trail. My monthly cell phone bill details my outgoing and incoming calls. Because of the quality, the video could not be shot surreptitiously as with a cell phone a la the earlier “nude ear squat” episode. Besides, such a device was probably unavailable back in 2002.

The intriguing question then is why the taping was made in the first place. Dispensing with the most common and obvious reason – stupidity – I posit a few.

One is that basic human emotion: vanity. The bragging rights of accumulating the next million after you have already acquired a few declines very rapidly. You need some other trophies, like an embellished royal title or additional wives (for Muslims). If you already have those, or cannot acquire them, then the next intoxicating fantasy would be to be a kingmaker, or fancying yourself as one.

For a lawyer to be able to brag that you could “handle” senior judges must be the ultimate high. If also considerably enhances your ability as rainmaker. Years later in your old age, your skeptical grandchildren might attribute your boasts to nothing more than the rambling of a senile mind, unless of course you have the video to prove it!

Closely related to vanity is arrogance. Humility is when you could manipulate the nation’s judiciary and have the quiet satisfaction; arrogance is when you flaunt it. This lawyer Lingam was certainly flaunting it!

Alternatively, I do not put it below this shyster to put on this monologue with an imagined targeted senior judge at the other end, a la Lat’s old cartoon, and then purposely “leaked” the tape out. It would certainly be a headline grabber. As for a motive, rogues are known to do this to each other when they have a falling out. There is one quick way to check this: examine the tape to determine when it was manufactured.

The last possibility is that this could be an insider’s job, perhaps an employee’s scheme to get even with his or her boss just in case he would get nasty in future. Knowing how law firms’ employees are treated in Malaysia, this is a real possibility.

No remedy
After much delay and amidst speculations, Abdullah finally appointed, apparently at the Ruler’s insistence, Justice Hamid Mohamed as President of the Court of Appeal, and Justice Alauddin Sherif as Chief Justice of Malaya. The two are highly regarded for their integrity as well as for being apolitical and independent minded. No wonder they were not Abdullah’s initial choice!

Abdullah also appointed a private lawyer Zaki Tun Azmi directly to the Federal Court. He was on Umno’s “Money Politics” disciplinary board. Lately he was known more for dumping his young Thai bride (his second, third, fourth?) and then asking her to burn their wedding certificate that was issued in Southern Thailand. Such personal integrity! The surprise is that the Council of Rulers consented to the appointment.

Perhaps Zaki Azmi was Abdulalh’s ideal choice for a future Chief Justice. That would of course reflect on Abdullah.

The rot in the judiciary predates Abdullah. However, he had the opportunity to reverse the trend or at least stem the decline with these new appointments, but as with the massive electoral mandate he received in 2004, he squandered it.

Many are advocating for an independent Judicial Commission to deal with judges’ appointments and promotions. I disagree. Judges and the judiciary generally must be accountable to the public. While I would not have judges be elected, as in some jurisdictions in America, the current system with judges appointed by the prime minister and consented to by the Council of Rulers is a good substitute. There is no point wasting time and effort tinkering with the current system.

What is needed instead is for the prime minister to be wise in his appointments and to open the field as wide as possible. In America, federal judges are nominated by the President and then consented to by the Senate, after a public confirmation hearing. If the president were stupid enough to nominate someone equally stupid, the Senate would not hesitate to deny the confirmation, after the appropriate public humiliation of the hearings. Additionally, the Bar Associations, legal scholars, and editorial boards would never shy from voicing their opinions.

The prime minister cannot abdicate his responsibility in selecting judges. If Abdullah needs guidance (he obviously does!), I suggest that he reads Lee Kuan Yew’s memoirs. If he finds the volumes too thick and tedious, I can help Abdullah by referring him to the relevant few pages.

Waiting from directive
Elsewhere I commented on the intellectual and experiential insularity of Malaysian judges. They are almost exclusively drawn from the civil service, with minimal or no outside experience in academia, private sector, or elsewhere. They follow directives only too well.

I was stunned that Chief Justice Fairuz, when confronted with the evidence that he had promoted judges who had been delinquent with their written judgments, would write to the prime minister instead of handling the issue himself. Presumably Feiruz was awaiting arahan (directive) from the prime minister. So much for his appreciation and understanding of the concept of separation of powers!

That more than anything reflects the caliber of Fairuz. Don’t get me started on the quality of his legal writings and commentaries!

In the end it does not matter what system you have if those responsible for selecting our judges do not do the job responsibly. The rot in our judiciary is not with the system but with the personnel. The system has produced such judicial luminaries as Tun Suffian and Raja Azlan Shah. It could do it again.

亟需糾正的腐化司法制度
姚文傑

《當今大馬》07年10月9日 晚上8:09
如果首席大法官阿末法魯斯還存有任何個人榮譽和職業操守意識,他應該立刻辭職。如果首相阿都拉對自己的領導和道德還負 有些許責任,他不應該延長首席大法官即將在十月期滿的合約。如果大馬律師公會對社會還負有法律上的義務,以及自我監督的專業,在前首相安華公佈公佈臭名昭 彰的林甘影片之後,他們將會取消林甘的律師資格。

唉,從過去記錄來看,不要期望這些,這是大馬無可奈何的現實。延長法魯斯的合約是國家經不起的憲法危機—這突如其來的憲法危機是不必要且令人困惑的, 現在只好等最高元首拒絕延長法魯斯的合約。
律師公會召開了緊急會議,但並沒有採取公會許可權之內的紀律行動懲罰涉案的律師,反而選擇遊行到布特拉再也行政中心,然後將請求設立皇家調查委員會的請願書交給首相。接下來他們將會走上街頭示威。非常第三世界,跟巴基斯坦沒有兩樣!我以爲那些聰明的律師會編制一些法律論說起訴政府。

首席大法官學“幽雅的沉默”

與此同時,首相阿都拉“很失望”——因爲這件事曝光而失望,並非爲影片的爭議性內容覺得失望。醒一醒吧,首相先生!腐敗的是大馬司法制度,不是曝光的影片。如果首相從睡夢中振作起來,他大概會下令逮捕安華!

首席大法官法魯斯學了首相聲名狼藉的“幽雅的沉默”姿態,只簡短地講了“無可奉告”。其實這並非幽雅或沉默,反而暴露了其醜陋的一面。

以該影片的錄音品質來看,那不可能是假的。以現在的偵察技術來說,任何嘗試這樣造假的人都很愚蠢。涉案的律師用手機撥電話,意味著將有不可刪除的通話記錄。我每個月的手機帳單清楚標示撥出和接聽紀錄。以該影片的品質來說,這不可能像是早前在我國發生的“裸蹲案”(nude ear squat)事件那樣被偷拍的。再說,在2002年或許也沒有那樣的儀器。

拍攝影片的動機:虛榮心作怪
既然是那樣的話,有趣的問題就是:爲何要拍那影片?除卻最顯而易見的原因——愚蠢,我假設其它一些原因。

一個原因是基本人類情緒:虛榮心。如果你已經擁有了好幾百萬,當你賺取下一個一百萬時,你也就沒有什麼好吹噓的了。你需要一些戰利品,例如拿來裝飾的王室頭銜,若是回教徒就多討幾個老婆。如果你已經擁有這些戰利品,或者無法擁有,那另一個使人陶醉的夢幻就是成爲一個有權支配高官的人,或者憑空幻想自己是有那般能耐的人。

身爲一個律師,如果你有能力操縱高級法官的律師並且一直拿來吹噓,那你肯定是很高階的,這也加強你當超級說客的能力。除非你有影片證明自己的當年勇,否則當你年老時,你的孫子會以爲你只不過患了老人癡呆症在吹牛而已。

跟虛榮心緊密相關的就是自大。所謂的謙虛,就是你能利用不當手段操縱國家司法制度而不吭聲;所謂的自大,就是你將之炫耀。涉案的林甘律師肯定是在炫耀!

或者,我不會像Lat的漫畫那樣,將這不擇手段的律師,和另一位想像中的某個大法官放進這長篇大論的文章裡,然後想像他們故意讓該影片“曝光”。這肯定可以上報章頭條。至於個中動機,眾所周知,當一群無賴有衝突時,他們常常互暴醜聞。有一個快捷的辦法可以調查:調查該影片以確定那是何時製作的。

最後一個可能性是:這可能是內鬼所爲,也許是一個職員在自己還沒有窮途末路之前事先陷害雇主的詭計。看看我國律師樓是如何對待職員的,這可能性或許就可以成立。

委任巫統律師任法官惹猜疑
經過一番拖延和猜測當中,以及在王室統治者的堅持之下,阿都拉終於委任哈密莫哈末(Hamid Mohamed)法官爲上訴法庭主席法官和阿拉勿丁沙裡夫(Alauddin Sherif)法官爲馬來亞大法官。這兩位大法官的道德感和不涉及政治的獨立作風,向來備受尊崇。難怪他們不是阿都拉最初的選擇。

阿都拉也委派一個私人律師查基(Zaki Tun Azmi)到聯邦法院。他是巫統“金錢政治”的紀律委員會。他最近比較有名的事情是和一個年輕泰國小妾(不知道是第幾個小妾?)離婚,聽說他還要那小妾把他們在泰南簽署的結婚證書付之一炬。這種個人道德!令人訝異的是,統治者委員會竟然批准該項委任。

也許查基是阿都拉在未來的理想大法官人選,這當然會爲阿都拉招致非議。

在阿都拉成爲首相之前,司法制度早就腐化了。無論如何,他有機會扭轉乾坤,或至少透過新的委任來遏止司法制度繼續往下沉淪,但他辜負了選民在2004年大選中所賦予他的強力支持。

很多人提議成立一個獨立司法委員會來處理法官委任、升等事宜,我並不同意。法官和司法制度要對大眾負責。在美國的司法制度底下,我沒有法官可選。但對我而言,一個好的替代方式就是現在這個由首相提名,然後由統治者通過的制度。浪費時間來馬虎將就地修改現有制度是毫無道理的。

現在迫切需要的事情反而是首相委任法官時要放聰明一點,並且盡可能開放競爭。在美國,聯邦法官由總統提名,然後在公共聽證會之後,參議院才會批准。如果總統很笨,委任一個跟他一樣笨的人選,參議院在經過公共聽證會的聽證和公開羞辱之後,會毫不猶疑地拒絕批准該提名。另外,律師公會、法學學者和輿論也不會羞於表達他們 的意見。

首相不可以放棄他遴選法官的責任。如果阿都拉需要指導(很顯然的,他需要),我建議他讀李光耀回憶錄。如果他覺得那本書太厚、太冗長乏味,我可以告訴他該參考哪幾頁。

等待首相指示處置失職法官?
我曾在別處評論過大馬法官的智慧和偏狹的經驗。他們幾乎沒有公共服務經驗,學術、私人界或其它領域的經驗也少得可憐,甚至掛零。他們非常遵從指示。

當大法官法魯斯發現他提拔了在書寫判決書方面失職的法官時,他沒有自己處理這問題,反而竟然還寫信問首相。這讓我覺得非常驚訝。他大概是在等待上頭指示吧。他真瞭解並且維護三權分立啊!

以上幾點就反映出他的能力。不要讓我開始評論他法學文章和評論的素質!

如果有權遴選法官的人沒有盡責,到頭來不管我們擁有什麼制度都是枉然。我們的司法制度並沒有腐化,腐化的是當中的人事。這制度曾經培養出司法界裡非常傑出的人物,例如敦蘇菲安(Tun Suffian)和阿茲蘭莎蘇丹(Raja Azlan Shah),現在當然也可以再度出現司法泰斗。

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