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
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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
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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