JUDICIAL REFORM ELUSIVE, DESPITE ROYAL COMMISSION

C O N F I D E N T I A L SECTION 01 OF 02 KUALA LUMPUR 001732 SIPDIS SIPDIS E.O. 12958: DECL: 12/21/2017 TAGS: PGOV PREL KDEM KJUS MY SUBJECT: JUDICIAL REFORM ELUSIVE, DESPITE ROYAL COMMISSION REF: A. KUALA LUMPUR 1446 - VIDEO OF JUDGE FIXING ¶B. KUALA LUMPUR 1458 - LAWYERS PROTEST CORRUPTION ¶C. KUALA LUMPUR 1594 - FACE OFF AT LAW CONFERENCE ¶D. KUALA LUMPUR 1624 - WINDS OF CHANGE Classified By: Political Section Chief Mark D. Clark for reasons 1.4 (b and d). Summary -------------- ¶1. (C) Following months of inconclusive investigations into a major judge-fixing scandal (ref A),Malaysia's King confirmed on December 12 the government's appointment of a royal commission of inquiry. The King tasked the royal commission to investigate the origin and veracity of the now infamous V.K. Lingam tape in which a senior attorney and a former Chief Justice were implicated in a judicial corruption scandal. The new six-person commission consists of retired senior judges, a former solicitor general and a human rights commissioner, but does not appear that it will add much to the scope of previous investigations. Prime Minister Abdullah Badawi recently chose a long-time UMNO legal advisor with no experience on the bench to fill the second highest judicial seat in the country, inspiring further criticism of the judicial selection process and cyncism regarding the government's commitment to clean up the judiciary. While the VK Lingam tape may have caused Malaysia significant domestic and international embarrassment, the threat that a weakened legal system poses to foreign investment might prove a greater spur to corrective action in the future. End Summary. Background on the VK Lingam tape controversy -------------- ¶2. (SBU) In September, former Deputy Prime Minister Anwar Ibrahim rocked Malaysia's legal establishment when he held a press conference to release an eight minute videotaped conversation purportedly showing a phone conversation between a famously corrupt Malaysian attorney, V.K. Lingam, and then current Chief Justice of Malaysia's Federal Court, Ahmad Fairuz Sheikh Abdul Halim, engaged in a judge fixing scheme (ref A). The video eventually spurred some 2,000 members of Malaysia's Bar Council to march on the Prime Minister's office to deliver a petition calling for the appointment of a royal commission of inquiry and for an end to corruption in the appointment of judges (ref B). Despite the government's best efforts to downplay the legitimacy of the video (ref B and C),the allegations remained an issue of wide public discourse. In an attempt to undermine calls for the creation of a royal commission of inquiry, the Government appointed an independent panel to investigate the legitimacy of the now famous VK Lingam tape (ref B),and additionally referred the case to Malaysia's Anti-Corruption Agency (ACA). Although Chief Justice Fairuz's term was allowed to lapse without extension, neither the ACA nor the independent panel announced a definitive answer to their investigations, and calls for a royal commission remained strong. On November 16, Prime Minister Abdullah Badawi announced that he would establish a royal commission, which requires the formalistic assent of the King. Malaysia's King appoints Royal Commission -------------- ¶3. (U) On December 12, Malaysia's Yang di Pertuan Agong (King) agreed to the appointment of five royal commissioners, a commission secretary, and to the following terms of reference for the commission: 1. To enquire and ascertain the authenticity of the video clip; 2. To enquire and identify the speaker, the person he was speaking to in the video clip and the persons mentioned in the conversation; 3. To enquire and ascertain the truth or otherwise of the contents of the conversation in the video clip; 4. To determine whether any act of misbehavior has been committed by persons identified or mentioned in the video clip; and 5. To recommend any appropriate course of action to be taken against the person or persons identified or mentioned in the video clip, should such persons be found to have committed any misbehavior. The commission has been given three months to complete their inquiry and submit a report to the King. ¶4. (U) The King accepted all the government's nominees to sit on the commission and appointed the following six members: former Chief Judge of Malaya Haidar Mohamed Noor as chairman; former Chief Judge of Sabah and Sarawak Steve Shim Lip Kiong, former Court of Appeals judge Mahadev Shankar, former Solicitor General Zaitun Zawiya Puteh, and retired history professor and Malaysian Human Rights Commissioner Dr. Khoo Kay Kim, as commissioners; and as secretary to the commission, Abdul Sani, the current director-general of the KUALA LUMP 00001732 002 OF 002 Prime Minister's Legal Affairs Division. Both Haidar Mohamed Noor and Mahadev Shankar sat on the government's independent panel to investigate the video clip (ref B),and each previously submitted individual reports of their findings to the Prime Minister. The government has not publicly released the contents of either of those reports. Limiting the scope of the commission -------------- ¶5. (C) Various United Malays National Organization (UMNO) insiders have told us that factions within the party still loyal to former PM Mahathir Mohamad prevented Prime Minister Abdullah from widening the terms of reference for fear that Mahathir himself would be implicated in the scandal. Malaysia's judicial independence has been severely limited since the 1988 judicial crisis when Mahathir railroaded the Chief Justice of the Supreme Court and two other justices and forced through constitutional amendments that stripped the courts of their independence from Parliament. The Malaysian Bar Council and most of the opposition parties had lobbied the government to include in the terms of reference issues concerning transparency of judicial appointments and ultimately judicial independence, but Abdullah chose not to widen the inquiry to include issues which would necessarily touch on the 1988 crisis. ¶6. (U) Following the announcement of the royal commission, parliamentary Opposition Leader Lim Kit Siang reiterated his previous complaints concerning the appointment of Haidar since he was a participant in the 1988 judicial crisis which sacked the former Chief Justice (ref B),and called his appointment "most disappointing." Lim continued: "In drawing up very restricted terms of reference. . .Prime Minister Abdullah Ahmad Badawi has missed the golden opportunity to put right what had been wrong and rotten with the system of justice for nearly two decades." ¶7. (U) Notwithstanding the limited scope of the commission, Malaysian Bar Council president Ambiga Sreenavasan applauded the Prime Minister's announcement establishing the commission of inquiry. "Although we had hoped for a wider scope of inquiry than just the video clip, this inquiry is nevertheless a very important and necessary one," Ambiga announced on the Bar's website. She pledged the Bar Council would make necessary representations to assist the commission in uncovering the truth. Judicial appointments remain suspect -------------- ¶8. (SBU) On December 5, PM Abdullah announced that UMNO's former chief counsel, Zaki Azmi, had been appointed to the second highest post in the judiciary-- President of the Court of Appeal. In September, Zaki, who had never served a single day as a judge, was appointed directly to the Federal Court (formerly the Supreme Court). Barely three months later, the court's junior member was elevated to President of the Court of Appeal and placed in line to succeed current Chief Justice Ahmad Fairuz Abdul Halim who is due to retire in April 2008 upon reaching the mandatory retirement age of 66. In addition to his previous service as UMNO Chief Counsel, Zaki had also chaired the party's disciplinary committee, election committee, and sat on the board of several UMNO-linked companies. Notwithstanding his lack of seniority and apparent lack of qualifications for the bench in general, Zaki is the son of Malaysia's third Lord President of the Supreme Court, Mohamed Azmi Mohamed, who held the highest judicial seat from 1968 to 1974. Comment -------------- ¶9. (C) The GOM's early resistance to the appointment of a royal commission and refusal to release the findings of the independent panel cast a great shadow over the eventual effectiveness of the new commission. The commission's powers of investigation and subpoena are technically no greater than those already inherent in the ACA, yet ACA investigations have revealed little and led to no arrests. These limitations coupled with the appointment of an unqualified political ally to the number two judicial post indicate the GOM is far from ready to accept transparency and external review of future judicial appointments. While the VK Lingam tape may have caused significant international embarrassment to Malaysia's judicial system, the threat that a weakened legal system poses to foreign investment might prove a greater spur to corrective action in the future. KEITH