Tuesday, September 25, 2007

"I am his minister"

Minister in the Prime Minister's Department, Mohamad Nazri Abdul Aziz, proudly proclaimed that a senior judge (believed to be Chief Justice Ahmad Fairuz) had contacted him to deny that he (Ahmad Fairuz) is the senior judge on the phone with lawyer V.K. Lingam, recorded in the video exposed by Parti KeAdilan Rakyat (PKR) advisor Anwar Ibrahim.

When asked to explain, Nazri (primarily in charge of Parliament Affairs) said the Chief Justice contacted him because "I am his minister". Nazri, arrogantly said that he is the minister in charge of law and legal affairs and the judge was smart enough to contact him although earlier, the judge issued a statement saying that he will not comment on the matter.

So much for the separation of powers. The Chief Justice, who is on par with the Prime Minister and the President of the Senate/Speaker of Parliament, has to "contact" a minister, junior to the Chief Justice, to deny the allegation.

It reminded me of a similar episode that took place in June 2000 involving the then Chief Justice Eusoff Chin and Minister in the Prime Minister's Department, Dr Rais Yatim (now Minister of Culture, Arts and Heritage).

It started when a panel comprising members from several international legal groups issued a 121-page report called Justice in Jeopardy: Malaysia in 2000. In its recommendations, the report made no reference to Eusoff, but in a separate section, the panel said they had discussed with Eusoff a 1994 trip he had made to New Zealand, where he and his family were pictured with lawyer V.K. Lingam. The report noted that Eusoff "adamantly denied" to the panel any improper behavior on his part.

In a radio interview in Australia, Dr Rais, who was Down Under to give a talk on Malaysian civil liberties to a forum organized by the Australian National University, was asked about the New Zealand photographs of Eusoff with Lingam, which have been posted on the Internet since 1998. Dr Rais said: "Such socializing is not in keeping with the proper behavior of a judicial personality, and this has been intimated to (the chief justice) in no uncertain terms."

Eusoff responded with a press conference showing his bills and receipts for the New Zealand trip, and threatening to sue anyone who alleged that someone else had paid for his vacation. He said he had merely bumped into Lingam in New Zealand. Eusoff denied that Rais had discussed the New Zealand holiday with him.

On the call Dr Rais had also made for "rejuvenation" of the judiciary, Eusoff retorted that the minister was responsible only for court logistics and equipment such as tables and chairs. (Dr Rais: "Although the CJ has branded me as one only responsible for tables and chairs, with due respect, I do know one or two things about the judiciary without having to sit on the bench.)

Now, Nazri claimed that he is in charge of the judiciary whereas under the separation of powers, he is not.

In his book Judicial Misconduct, Peter Alderidge Williams, Q.C. wrote that the Malaysian Constitution, in common with many other constitutions of the developed world, drew heavily upon the political philosophy of Montesquieu when he wrote

"when the legislative and executive powers are united in the same person, or in the same body of magistracy, there can be no liberty...

Again there is no liberty if the power of judging be not separated from the legislative and executive powers."

On the conduct of judges, Dr Rais (in an interview published by Asiaweek magazine) said "It's difficult to pinpoint what a judge can and cannot do outside courtroom hours, but definitely to be circumspect about personal relations is one of them. If a judge is seen too much inclined toward certain persons, it could conjure up a difficult position. The principle against bias is one of the pillars of the rule of law. It is not difficult to envisage that the more free one is from such infringements, the better."

Malayians in general and the Bar Council in particular, have long expressed concerned about the judiciary and this latest episode added fuel to the fire.

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