ACA asked to reopen Lingam, Eusoff case

ACA asked to reopen Lingam, Eusoff case

Monday, 19 May 2008 08:56am

NST by V. Anbalagan • Tribunal best way to 'discipline judges' • Thirunama happy to find out he is 'not mad' • Karpal calls on Dr M to name judges who lobbied • Prosecution not a certainty against Lingam six, says DPM • Kit Siang calls for follow-up KUALA LUMPUR: The Royal Commission of Inquiry has recommended that the Anti-Corruption Agency reopen investigations into the relationship between former chief justice Tun Mohd Eusoff Chin and lawyer Datuk V.K. Lingam. In particular, it wants the ACA to look into the holiday that the two and their families took at the same time in New Zealand in December 1994. It also recommended that the ACA investigate a number of other judges who received gifts from Lingam. The commission noted that an earlier investigation into Eusoff's holiday with Lingam was said to have been closed by former attorney-general Tan Sri Mohtar Abdullah. It said the case should be reopened following fresh allegations made under oath by witnesses G. Jayanti and V. Thirunama Karasu during the inquiry. "Fresh investigations should be invoked because they constitute such a horrific imputation of impropriety against Eusoff and a few other judges that public confidence not only in the judiciary but also in the integrity of the ACA will be compromised unless some positive action is seen to be taken," the report said. Thirunama is Lingam's younger brother while Jayanti is his former secretary. Thirunama had lodged a report in 1998 alleging corruption involving judges, including Eusoff. He stated that he had sent several gifts from his brother Lingam to several judges. A sustained attempt was made to cast doubts on Thirunama's sanity in the inquiry but the commission noted the witness had an "elephantine memory for dates and events". "In the case of Jayanti, her motives were impugned. But we thought she was a credible witness," it said. Jayanti had testified that she made holiday arrangements for Lingam's and Eusoff's families to New Zealand in December 1994. The report said the trip was "rather startling" because there was evidence that Eusoff and his family had spent almost the entire holiday with Lingam and his family. Eusoff had testified that he and his family had "bumped" into Lingam and his family at Changi Airport, Singapore, while on their way to New Zealand. It was revealed in evidence they were together most of the time while holidaying there but, when asked about this, Eusoff merely said they were all coincidences. "Given the amazing number of alleged coincidences, we need no more than mere common sense to detect the incredulity of that proposition." The report said evidence had been led through Eusoff and Lingam to portray Jayanti as unreliable and having an axe to grind. "Having looked at the demeanour of Jayanti giving evidence and taking into account her evidence in totality, it is more probable that the trip was pre-planned." The commission said the intent of the report in respect of the fixing of judicial appointments and promotions was "not merely to treat the patient but to eradicate the disease". "In other words, a determined effort must be made to get to the root of the malaise which has been uncovered," it added. Tribunal best way to 'discipline judges' KUALA LUMPUR: Action against judges implicated in the Lingam video clip inquiry must go through the legal process and not be mere arbitrary action by the government, two senior legal figures said on Saturday. "Any action taken against the judges has to be based on the statutes," said former attorney-general Tan Sri Abu Talib Othman. "For instance, if the government wanted to revoke the judges' titles or pensions, keep in mind that their titles and pensions cannot be taken away just because the Royal Commission of Inquiry said certain things. "You have to apply the law. In this instance, it has to go to a tribunal. "To take disciplinary action, you have to follow procedure. You cannot condemn a person without giving the accused a chance to be heard," said Abu Talib. Former Court of Appeal judge Datuk Karam Chand Vohrah voiced a similar view saying, "You have to use a tribunal to discipline the judges". However, Abu Talib said if the matter was a criminal one, then it had to be heard in a court of law. "The commission's report is only a recommendation to the King, based on the evidence made available to them. The commission works on the balance-of-probabilities standard of proof, whilst a criminal court would require the case be proven beyond reasonable doubt." Vohrah said if there was sufficient proof based on the commission's findings, then the attorney-general should prosecute. But if there was a need for more proof, then there was a duty to commence investigations. "Three people in the commission have enough legal experience to know what evidence is available and whether it is sufficient for prosecution. "Effectively, what the commission has said is that it has enough evidence for prosecution," said Vohrah. Abu Talib said: "Leave it to the A-G. There are a lot things for him to consider. "But whatever it is, the A-G should not be moved by any pressure from any quarters."

Karpal calls on Dr M to name judges who lobbied

by Adrian David

KUALA LUMPUR: Veteran lawyer Karpal Singh called on former prime minister Tun Dr Mahathir Mohamad to identify the judges who had lobbied him for promotions.

If not, the DAP chairman said innocent judges could be "tainted by the same brush".

"It is in the public interest for Dr Mahathir to identify the judges without further delay. On the other hand, the accused judges should be given the opportunity to clear their names," Karpal said.

He said Dr Mahathir should not wait to be charged in court. "He must be prepared to name the judges now."

On Saturday, the former prime minister said he was prepared to face charges arising out of the findings of the royal commission into the Lingam video clip, in the course of which he would reveal that judges had lobbied for promotions.

"This is a very serious implication and the said judges should be investigated.

"If the lobbying is true, it is a very serious form of misconduct that can even merit the removal of the judges from office," he said.

Karpal, the MP for Bukit Gelugor, said he was surprised that Dr Mahathir did not seem to know that lobbying by the judges was a serious matter.

"Under the federal constitution's doctrine of separation of powers, judges who lobby should be subjected to a tribunal set up by the king to determine if they are guilty of misconduct.

"It does not matter if the judges are still in service or retired," he said.

Dr Mahathir had said he would disclose in court what really went on behind the scenes at the time of the telephone conversation in the video clip.

However, he denied he had given in to lobbying.

The royal commission has recommended that Dr Mahathir, lawyer Datuk V.K. Lingam, former chief justices Tun Ahmad Fairuz Sheikh Abdul Halim and Tun Eusoff Chin, tycoon Tan Sri Vincent Tan and former tourism minister Datuk Seri Tengku Adnan Mansor be investigated for conspiring to rig judicial appointments and promotions.

On Friday, the cabinet directed the attorney-general to order the investigations.

Karpal also said parties who felt aggrieved by court decisions involving the personalities mentioned by the commission should apply for a review of their cases.

He said exceptional circumstances had to be established before the Federal Court could revise its earlier decisions.

"In the past, decisions of the Federal Court were deemed to be final.

"Only after 2000, following a civil case, did the Federal Court rule that it did have powers to review its own decisions under Rule 137, in the interest of justice," he said.

(Rule 137 of the Federal Court Act 1994 states that the court has the power to hear any application or to make any order as may be necessary to prevent an injustice or to prevent an abuse of the process of the court.)

Karpal said the commission's findings only amounted to recommendations.

"It is premature to embark on an open review of judgments given by the implicated judges, as only after prosecution and conviction can there be grounds for a review," he said.

Unlike other cases of appeals in lower courts, there is no time limit for an application for a review.

Several cases heard by the judges cited in the commission report could now become eligible for review.