Day 7 RCI – Lawyers’ Submissions on relevancy of former CJ Eusoff's NZ holiday with Lingam; Commission to decide 24 Jan 08; Wee’s Bid shouted down
R. Surenthira Kumar;theSUN
KUALA LUMPUR (Jan 22, 2008): The Royal Commission set up to probe the video clip showing a senior lawyer brokering the appointment of judges will decide on Thursday (Jan 24) whether it will delve into other aspects, besides the "fixing" of the judges’ appointment. The Commission was urged by several lawyers to probe into the other issues which had cropped up in the course of the hearing, particulary in relation to:
* the "fixing" of decisions, as found in the transcript of the video clip recording; and
* the extent of the relationship between the person speaking on the phone in the video clip and former Chief Justice Tun Mohamed Eusoff Chin.
The Commission would also rule on Thursday whether more questions related to Datuk V.K.Lingam’s trip to
* on page 7 - "Eusoff Chin and I are extremely close, you know." Lazar said this speaks to the purported close relationship between Lingam and Mohamed Eusoff.
* on page 7 – "Yeah, Eusoff Chin in power, I can straight get Pom, Pom, Pom, Pom. But now Dzaiddin is there and ... Dzaiddin is attacking our cases that is why James Kumar (Foong) is aligned to Dzaiddin. But Dzaiddin’s retiring 15th of September. He’s finished."
Laza said this suggests the ends that were achieved by such a close relationship in the past and speaks of the intention of the speaker to re-establish access to judges for the possible purposes of influencing cases.
* on page 1 – "Ah, as per our memo, I … discussed with Tun … aa … Tun Eusoff Chin and we sent the same memo to PM."
Laza said this further exemplifies the above point, that Lingam is able to influence these persons on the appointment of judges.
* on page 2 – "You know this is the same problem Tun Eusoff Chin had ... he ran out of soldiers."
Laza said this once again suggests that the purpose for influencing the appointment and promotion of judges is to ensure that there are judges placed at the appropriate levels of the judiciary in order to ensure there would be people to do their bidding. Therefore, the video clip does not relate solely to judicial appointments, but also the "fixing" of cases.
Hence, any misbehaviour must relate to the entirety of the contents of the video clip. The implications are not limited to the fixing of judicial appointments but any matter leading to or resulting from the fixing and brokering of judicial appointments. Laza said the Commission must take into consideration the evidence first, before deciding if it is admissibile or not, instead of ruling from the outset that it cannot probe into such evidence as it is beyond the ambit of the Commission’s terms of reference.
Lazar also disagreed with Lingam’s lawyer, R.Thayalan’s submission on Monday (Jan 21), that the Commission should not probe into his client’s trip to
He added the questions on the
* the truthfulness of the statement, "are extremely close";
* assists the Commission in determining the identity of the speaker in the video clip; and
* demonstrates the credibility or otherwise of those witnesses who are said to have been on this holiday.
Laza also said the powers of the Commission, in relation to the Evidence Act, are far wider than an ordinary court and thus can admit evidence, any evidence which might be inadmissible in a civil or criminal proceeding.
"But it should not be interpreted as a ‘free for all’ move," remarked Commission chairman Tan Sri Haidar Mohamed.
Commission members Datuk Mahadev Shankar said the evidence to be submitted must have some relevance to the proceeding while Tan Sri Steve Shim Lip Kiong said it must relate to the Commission’s terms of reference.
"We cannot put on the blinkers and say the appointment of judges is fixed and the matter ends there," said Laza, adding that it is important for them to raise this point at this stage of the inquiry.
"We are not allowed to go on a fishing expedition to discover other things. There is a limit," replied Mahadev Shankar.
Shim then asked which part of the transcript relates to the alleged fixing of decisions, and Laza pointed out the part of the person on the phone claiming "when Mohamed Eusoff was in power he could get ... pom, pom, pom, pom", "Dzaiddin is attacking our cases now", "you suffered so much ... so much you have done. You know, for the election petition, Wee Choo Keong, everything".
Laza said unless there is evidence to show Lingam’s relationship with Mohamed Eusoff was no longer close, as a result of a row between them, the Commission has to accept the evidence available on the closeness of the relationship between the two men.
Lawyer representing former Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim submitted that the Commission's terms of reference to the object of enquiry, relevancy of any proposed questions may readily be discerned.
"Any answers given by Lingam and Mohamed Eusoff tending to or probative of the ‘closeness’ of their relationship is not also probative of the issue tending to show whether there has been an improper interference with judicial appointments. In this sense, it is completely irrelevant," said Kamarul.
Prior to that, when the proceedings began late afternoon, on its seventh day of inquiry here today, three lawyers appeared on behalf of Mohamed Eusoff.
Zamani Ibrahim, Datuk Hazman Ahmad and Mohd Fauzi Mohd Zin, said they are taking the same stand as Lingam’s lawyer Thayalan, that the issue of the trip to
Zamani said they would also submit on it on Thursday (Jan 24).
Others to submit on the issue was lawyer Khoo Guan Huat, who represented former Chief Justice Tun Mohamed Dzaiddin Abdullah. Khoo said his client objected the Commission should take into consideration evidence which fell outside the spectrum of the Commisison’s terms of reference.
Azhar Azizan Harun, who represented several human rights NGOs, Suaram, Aliran and Hakam, said the Commission should weigh the question of admissibility of the other available evidences in the interest of public welfare as it involved the question of independence of the judiciary.
Mahadev Shankar said the Commission was not with him on the point.
Co-counsel for Lingam’s brother V.Thirunama Karasu, John Fan referred to the Police Investigations Committee formed in New Wales,
Thirunama Karasu’s other lawyer, Wee Choo Keong enraged the Commission when he too wanted to submit on the issue.
Haidar had to shout to him to sit down, as Wee persisted in submitting despite Shim and Mahadev saying they would consider Wee’s written submission.
"There are many scandalous allegations in your submission, and we do not want it to be ventilated in the press. We don’t want a trial by the media," said Mahadev Shankar.
"Don’t argue please, listen to me! Can you please sit down. We will give you the opportunity to submit," added Haidar.
M.Puravalen, the lawyer representing former Deputy Prime Minister Datuk Seri Anwar Ibrahim, said his client was taking the same position as the Malaysian Bar.
Deputy Public Prosecutors (DPPs) Datuk Nordin Hassan and Datuk Azmi Ariffin, when asked by Haidar whether they had a stand on the matter, gave a written submission to the Commission.
The DPPs’ summarised the evidence sought to be given on the closeness of Lingam and Mohamed Eusoff, could not in any way show the role played by the latter, if any, in the appointment of judges and therefore it does not come within the terms of the Commission’s terms of reference.
Lazar then raised the question of whether the Commission should ask the DPP to submit on the matter, suggesting the Commission should not hear them.
But Haidar said since the DPPs are assisting the Commission, it had a right to seek their assistance on the issue.
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Commissioner Haidar Loses Patience With Counsel
Raising his voice, Haidar told Wee: "Look here, we (the commission) make a ruling, you give your submission, then we (the commission) would read and decide the relevant issue that you (Wee) could submit on."
Commissioner Datuk Mahadev Shankar added: "I want to sound a note of caution. There are some facts and allegations which were covered in the documents (Wee's written submission) you gave. The commission would determine how much of that is going to be allowed, whether there was a limit and where the limit should go. "And, if you are going to repeat your material here, including the allegations, we may decide not to admit. There were colourful allegations," Mahadev said. However, Wee remained standing, attempting to persuade the commission to hear out his submission. There was an exchange of words between Wee and Mahadev which prompted
Haidar to make his stand not to allow Wee to submit further. Despite the order, Wee refused to sit down and tried to make his submission. Commissioner Tan Sri Steve Shim Lip Kiong told Wee: "We have read your statement. We felt not all the evidence should be in. We would make the ruling later on. I will indicate to you the few relevant parts in your submission and you can make your submission on that. Other than that you are not allowed to touch. You can submit later after we indicate to you the admissible part." But Wee persisted on submitting.
Haidar, raising his voice, told Wee not to argue but to sit down since the commission had already indicated to him that it would take a look at his written submission. "Did you get it clear. Don't argue. Please listen to me. (In a raised voice) Can you please sit down. I said sit down. We will give you our opinion on your submission. Give us (time) to go through first. If we feel your points are relevant, we would invite you to submit, so please sit down," said Haidar.
Wee replied: "(You) don't have to shout." He then sat down on the lawyer's bench.
= == = = == = == = =water down account from Bernama
Trip Evidence Could Lead To fixing Of Judicial Appointments, Says Counsel*
Lazar referred a portion of the transcript of the conversation in the video clip which the Indian speaker said, "Eusoff Chin and I are extremely close you know. Yeah, Eusoff Chin in power, I can straight get Pom, Pom, Pom, Pom. But now Dzaiddin (former Chief Justice) is there and... Dzaiddin is attacking our cases that is why James Kumar is aligned to Dzaiddin. But Dzaiddin's retiring 15th of September. He's finished." Lazar argued that that portion showed the purported close relationship between Lingam and Eusoff.
"This suggests the ends that were achieved by such a close relationship in the past and speaks of the intention of the speaker to re-establish access to judges for the possible purposes of influencing cases," Lazar said. Lazar said the portion of the speaker's conversation, "Ah, as per our memo, I... I discussed with Tun... a... Tun Eusoff Chin and we sent the same memo to PM," also indicated that the speaker was able to influence the appointment of judges. Referring to another portion of the conversation, "You know this is the same problem Tun Eusoff Chin had... he ran out of soldiers," Lazar said this part of the conversation suggested that the purpose for influencing the appointment and promotion of judges was to ensure that there were judges placed at the appropriate levels of the judiciary in order to ensure there would be people to do their bidding.
Lazar stressed that the video clip did not relate solely to judicial appointments but also to the fixing of cases. "Hence, any misbehaviour must be related to the entirety of the contents of the video clip. The implications are not limited to the fixing of judicial appointments, but include any matter leading to or resulting from the fixing and brokering of judicial appointments," Lazar said. Lazar said therefore that evidence must first be taken from Lingam before a ruling can be made on the admissibility of the evidence on the
"The commission comprising Tan Sri Haidar Mohamed Noor, Tan Sri Steve Shim Lip Kiong, Datuk Mahadev Shankar, Puan Seri Zaitun Zawiyah Puteh and Professor Emeritus Dr Khoo Kay Khim, was set up to inquire into the controversial video clip allegedly showing Lingam brokering the appointment of judges over the telephone with a senior judge. Meanwhile, counsel Kamarul Hisham Kamaruddin representing former Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim (who is said to be the man on the other line of the phone) supported Lingam's stand that the evidence on the trip was irrelevant to the inquiry. He contended that the scope of the commission's terms of reference was limited to appointment of judges and cannot go beyond its objective.
Counsel Alex De Silva (ABOVE) representing consultant Loh Gwo Burne (the person who recorded the video clip) said the evidence of the New Zealand trip was related to the inquiry because if the evidence suggested that Lingam and Eusoff were close in 1994, it could be presumed that they continued to be close in 2001 when the video clip was recorded, unless there was evidence produced to say otherwise. Counsel M. Puravelan (BELOW) for Datuk Seri Anwar Ibrahim, counsel Azahar Azizan Harun representing three NGO group, counsel Khoo Guan Huat for former Chief Justice Tun Dzaiddin Abdullah also share the same view with Lazar.