'Report provides catalyst for further probe'

• ACA to re-open NZ holiday case

PETALING JAYA (May 20, 2008): The Commission of Enquiry on the Lingam video clip concluded that its report is enough to provide catalyst for further investigation so as to have complete transparency and full accountability into the misconducts at hand.

"This is absolutely essential if we are to wipe out, once and for all, the stain of that remark once made by Justice N.H. Chan in reference to the judiciary that 'Something is rotten in the State of Denmark'," said the report on the video clip that rocked the judiciary to its core.

The 191-page report of the commission released to the public today held that it could not discount the possibility of other laws being contravened but there was sufficient cause to invoke the Sedition Act 1948, Prevention of Corruption Act 1961, Legal Profession Act 1976, Official Secrets Act 1972 and the Penal Code against some of the principal individuals involved.

The content of the Commission of Enquiry on the Video Clip Recording of Image of a Person Purported to be an Advocate and Solicitor Speaking on the Telephone on Matters Regarding the Appointment of Judges' report was divided according to the five terms of reference tasked to the five-person panel.

They are as follows:

First term of reference: Authenticity

The Commission concludes that the video clip was authentic.

"When all is said and done by the experts, both local and foreign, stripped off all the technical jargon that they used in their findings, when examined in the context of the direct or primary evidence of the maker of the video clip, coupled with that of the eyewitnesses, a simple question confronting the Commission can be posed in layman terms: Is the video clip genuine, real, reliable or trustworthy and therefore authentic? We have no hesitation in answering in the affirmative."

Second term of reference: Identity

The Commission dealt with this in three parts – the identity of the person on the phone, the identity of the person on the other end of the line and the Chinese man in the video.

It established beyond doubt that the person on the phone was lawyer Datuk V.K. Lingam.

"This conclusion is further reinforced having had the opportunity of seeing and observing Lingam giving evidence before us as well as the video clip being played no less than five times in the course of the enquiry."

As for the person on the other end of the line, the report concluded that it was former Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim.

This was based on evidence of among others, Ahmad Fairuz’s letters to the Prime Minister, Deputy Prime Minister and the Minister in the Prime Minister’s Department; witnesses’ testimonies, transcripts referred to other evidences adduced in the inquiry.

The Commission held that it was unable to place much weight on the proposition that a conversation between the two had never taken place, "given the fact that Lingam was using prepaid phone numbers at the material time which could not be traced."

"The evidence disclosed the impossibility of tracing phone calls made by Ahmad Fairuz to Lingam, since according to investigating officer Senior Supt Chuah Lay Choo, she was unable to obtain the prepaid phone numbers of the incoming calls received by Lingam at all material times."

As for the identity of the Chinese man shown in the video clip, the Commission held "we have no difficulty in coming to the conclusion that he is Loh Mui Fah".

Third term of reference: The truth

Citing passages from the transcript, the Commission said "a compelling inference can reasonably and conceivably be drawn that Lingam was actively involved" in Ahmad Fairuz’s appointment as Court of Appeal President with the possible aim of a further appointment to Chief Justice of the Federal Court.

"It is clear from the phone conversation that Lingam was apprising Ahmad Fairuz of his intention, purpose and capability of securing the latter’s appointment to the post of Court of Appeal President.

"In the meanwhile, it is sufficient for us to state that Lingam had the potential capability as disclosed in the passages cited to effectualise Ahmad Fairuz’s aspiration to become Court of Appeal president," it said.

Further, the Commission held that given the relationship between businessman Tan Sri Vincent Tan, Lingam and Datuk Seri Tengku Adnan Tengku Mansor "it is quite conceivable that they would have played a significant and active influencing role on the appointment of Ahmad Fairuz as the Chief Judge of Malaya (CJM) at the material time."

It said: "In the circumstances, we do not find the denial by Tun Dr Mahathir Mohamad that he was not influenced by anyone to be entirely convincing."

Touching on the issue that Lingam was telling Loh that former Chief Justice Tun Mohd Dzaiddin Abdullah's proposal for Tan Sri Abdul Malek Ahmad for the post of CJM would be "thrown out because he’s anti-PM", the Commission said the passages of the transcript demonstrates the consistency of deliberate efforts on the part of Tan, Tengku Adnan and Lingam, collectively and/or individually, to undermine Mohd Dzaiddin’s recommendation.

The Commission said: "Given the close relationship Tan had with Mahathir and the admitted evidence that Mahathir could have sought his (Tan's) advice on Ahmad Fairuz’s appointment as CJM, it is not unreasonable to conclude Abdul Malek’s rejection could well be linked to such advice."

Aware that both Tan and Tengku Adnan had denied allegations during their testimonies, the Commission said such "bare denials are hardly convincing".

Quoting the transcript in which Lingam was quoted as saying "we want to make sure our friends are there, for the sake of PM and for the sake of the country", the Commission said the quote demonstrated the aim, purpose and intention of Lingam’s actions.

"The use of the word 'we' would suggest the inclusion of Lingam’s close friends – Tan and Tengku Adnan - having regard to the flow of the dialogue in the phone conversation with Ahmad Fairuz."

On the 1994 New Zealand holiday that former Chief Justice Tun Mohd Eusoff Chin had gone on and coincidentally bumped into Lingam a few times, the Commission said: "Given the amazing number of alleged coincidences which can be extracted from the whole trip from Singapore to New Zealand and back, we need no more than mere common sense to detect the incredulity of that proposition."

"In the circumstances, we are unable to accept the veracity of their denials. We are fortified in this respect by the evidence of G. Jayanti – Lingam’s former secretary – who said, inter alia, that she had prepared their itinerary of the trip after Lingam had returned from the same trip although it was for the purpose of accounting."

Further, the Commission noted that in a move to consolidate the relationship issue, more revelations were unravelled by (Lingam’s younger brother) Thirunama Karasu’s counsel Wee Choo Keong as "more than startling" and then "devastating if we accept them to be true".

However, it said, the revelations were allowed to be disclosed albeit to vigorous opposition by Eusoff and Lingam’s counsel because the Commission felt they were relevant in testing Eusoff and Lingam’s credibility and to establish the degree of their relationship which in turn relates to the appointment of Judges.

The Commission held that despite the claims that Thirunama had suffered from mental problems and had done his elder brother wrong while working for him, "we are of the view that his version of the events is more probable than that of his detractors".

To Lingam’s supposition that he was intoxicated at the time the video was recorded, the Commission firmly held that he was not intoxicated, judging from the mannerisms and speech in the video clip that was played no less than five times during the inquiry.

"He was able to recite accurately various facts and events in great detail. He seemed perfectly rational in every way," it said, also citing testimonies from Loh and his son Gwo-Burne (now Parti Keadilan Rakyat's Kelana Jaya MP) who had made the recording.

"Indeed they stated they had gone to his house to have dinner and to discuss legal matters. It is therefore implausible that Lingam would have allowed himself to get intoxicated.

"His evidence that he could be intoxicated was not something that he recollected as a fact but which he arrived at by way of supposition and surmise based upon sight of a number of bottles of alcohol shown in the two photographs taken at the time," the Commission said.

On Lingam’s line of "bullshitting or bragging" in the conversation, it said evidence militates against the stand as this was, again, implausible given the details reflected in the conversation in the video clip, the dialogue flow and most of the statements contained, have been established to be true in material particulars.

"In the final analysis, having regard to the totality of the evidence and for the reasons stated, we are of the view that there was conceivably an insidious movement by Lingam with the covert assistance of his close friends Tan and Tengku Adnan to involve themselves actively in the appointment of judges, in particular, the appointment of Ahmad Fairuz as the CJM and subsequently as Court of Appeal President.

"In the process, Mahathir was also entangled. In the circumstances, we are satisfied that the content of the conversation dealt with in the course of our analysis, contains the truth in substance and in material particulars," the Commission held.

Fourth term of reference: Misbehaviour

The Commission held that misbehaviour "uncovered in the inquiry ranges from acts and omissions which were merely morally objectionable, to acts which fell outside the norms of professional ethical standard as well as to acts which constitute crime punishable under the Malaysian laws".

It said these were "serious defaults in the constitutional process, because the mandatory requirement of consultation (of appointment of judges, as well as the position of CJM) had not been complied with by persons who had taken an oath to uphold the Constitution".

"This kind of misbehaviour is so unprecedented that were it not for the release of the video clip, it may never have come to light. It remains to be investigated what sanctions the law provides for this kind of misbehaviour," the Commission said.

Citing action under the Sedition Act 1948, Legal Profession Act 1976, and the Penal Code for Lingam, the Commission said a breach of the Official Secrets Act 1972 is another area of enquiry, along with an actionable conspiracy as he had repeatedly claimed to have been acting in concert with like-minded collaborators.

The Commission, as in its recommendations, also asked that Jayanti and Thirunama’s fresh allegations which were made under oath should invoke

fresh investigations because "they constitute such horrific imputations of impropriety against Eusoff and a few other Judges that public confidence not only in the judiciary but also in the integrity of the Anti-Corruption Agency will be compromised unless some positive action is seen to be taken".

The Commission said, albeit the theft allegations Lingam’s party raised against Jayanti, "her motives were impugned but the Commission thought she was a credible witness and in the case of Thirunama, a sustained attempt was made to cast doubts on his sanity".

"However, seeing him under the most severe cross-examination, the commission was quite satisfied that he is far from being allegedly insane.

"He was a level-headed person with such an elephantine memory for dates and events that his testimony cannot just be lightly brushed aside," it said.

The Commission said collective and cumulative actions of the "main characters" had the effect of undermining and eroding the Judiciary’s independence and integrity as a whole.

Fifth term of reference – Recommendations

The Commission held there was sufficient cause to invoke the Sedition Act 1948, Prevention of Corruption Act 1961, Legal Profession Act 1976, Official Secrets Act 1972 and the Penal Code against some of the principal individuals involved.

It did not discount the possibility of other laws being contravened but added that the findings have, at the very least, provided the catalyst for further investigations so that, hopefully, there would be complete transparency and full accountability.

"This is absolutely essential if we are to wipe out, once and for all, the stain of that remark once made by Justice N.H Chan in reference to the Judiciary that 'Something is rotten in the State of Denmark'," the Commission said.


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ACA to re-open NZ holiday case

by Llew-Ann Phang

PETALING JAYA (May 20, 2008): Attorney-General (A-G) Tan Sri Abdul Gani Patail today ordered the Anti-Corruption Agency (ACA) to re-open the case involving former Chief Justice Tun Mohd Eusoff Chin and lawyer Datuk V.K Lingam, in particular the New Zealand holiday they went on in 1994.

In a statement yesterday, the ACA said the case was closed by the late A-G Tan Sri Mohtar Abdullah as "it did not have evidence".

In November 2000, Mohtar had announced there was no case for alleged misconduct against Eusoff.

"The case was investigated by the ACA after receiving information from the public in 1998," the agency said, adding that it received instructions from the A-G this morning to re-open the case and give focus to the issues raised in the Commission of Enquiry's report on the Lingam video clip issue.

The ACA had previously said there was a "full-scale investigation" by the A-G’s Chambers, the police and the agency itself into a photograph showing Eusoff and Lingam on holiday in New Zealand.

Eusoff was then heading a panel to hear an appeal case involving businessman Tan Sri Vincent Tan – who was represented by Lingam.

The Commission’s inquiry had heard testimonies from Eusoff and Lingam that they had "bumped" into each other at the Changi Airport in Singapore while en route to New Zealand.

"Although Eusoff Chin had testified that he and his family had (in his words) 'bumped' into Lingam and his family at Changi Airport while on their way to New Zealand, he nevertheless admitted that they travelled together in the same flight from Singapore to Auckland; visited the zoo and bird park in Auckland together; flew together from Auckland to Christchurch; took the same van from Christchurch to Queenstown; spent a fishing trip together in Queenstown; flew back together on the same flight from Queenstown to Christchurch and then took the same plane from Christchurch to Singapore via Auckland and thereafter back to Kuala Lumpur.

"When asked to explain his actions concerning the said New Zealand holiday trip, Eusoff merely said they were all coincidences. When questioned about this, Lingam reiterated the same stand," the report said.

Further, the Commission said: "Given the amazing number of alleged coincidences, we need no more than mere common sense to detect the incredulity of that proposition."

"In the circumstances, we are unable to accept the veracity of their denials," it said, also ruling that it was "more than probable" that the trip was pre-planned.

The Commission had also heard evidences of Lingam’s younger brother Thirunama Karasu revealing incidences of the delivery of files to Eusoff’s house, an intended purchase of a house for Eusoff, the delivery of a handbag and wallet to Eusoff and purchase of handphones for Eusoff.

The Sun
20/05/08