Ayer Molek was symptom of malady

“You have come here to hammer me?”

This desperate query from a cornered Eusoff Chin, a former Chief Justice, came in the course of the inquiry into the VK Lingam videotape by a royal commission in January 2008.

The inquiry had opened a Pandora’s Box of judicial misdeeds, with the ex-CJ close to its epicentre.

It was a tragicomic moment as both Eusoff and the lawyer representing the Malaysian Bar had come to a point where the enormity of an episode – a holiday to New Zealand during which the CJ and wife were photographed in the convivial company of a senior lawyer – could no longer be evaded.

In the prelude to that moment Eusoff’s stance had been that the encounter with lawyer Lingam was happenstance.

However, the Bar’s counsel had successfully adduced evidence that pointed to the affair as anything but innocuous.

Eusoff had to yield his ground but his concession reeked of pathos: it seemed that the gravity of his transgression of the monastic ideal – judges must appear apart to seem more judicial – had belatedly dawned on him.

But now with the news of retired judge KC Vohrah’s revelation that Eusoff had tried to subvert the course of justice in the Ayer Molek case in 1995 – a legal tussle over a share transfer – we can see that the ex-CJ’s connection to Lingam owed less to accident than to design.

Lingam had acted as counsel for a party to the dispute over the share transfer in the Ayer Molek case.

The Ayer Molek decision was to have reverberations beyond the legal arena.

Jailed opposition leader Anwar Ibrahim found himself skating on thin ice when he, in his capacity as deputy prime minister and finance minister, brought up the case at a cabinet meeting in 1996.

The air of baseness that hovered over the case lingered long after its conclusion in the middle of 1995.

Anwar told his cabinet colleagues that the way the Ayer Molek case was adjudicated would have adverse effects on foreign investors.

Flexing his liberal credentials

At this time Anwar, several years in his financial stewardship of the country and three into a deputy premiership, was beginning to flex his liberal credentials.

These had lain fallow in the years, 1987 to 1996, when Prime Minister Dr Mahathir Mohamad at his most authoritarian in the latter’s 22-year tenure as PM.

Anwar was in government in 1982-98 while Mahathir was PM from 1981 to 2003.

In refutation of Anwar’s argument in cabinet, Mahathir, whose contempt for an independent judiciary was demonstrated in his decision to have Lord President Salleh Abbas impeached in 1988, had called up the figures on foreign investment in the country for the years leading up to 1995 – the year of the Ayer Molek decision – and after.

The figures showed a steady increase in the rate of investment.

Anwar’s argument about Ayer Molek’s detrimental effects was shown to be empirically insupportable.

Therein lay the genesis of Anwar’s troubles with his boss that were to eventuate in his sacking and indictment for corruption and sodomy in 1998-99.

Anwar had been mute when Salleh Abbas was impeached, with deleterious consequences for the independence of the judiciary felt to this day.

The royal commission’s inquiry into the Lingam videotape that focused on attempts at case- and judge-fixing by Lingam issued in recommendations that a number of individuals, including Mahathir, be indicted for offences against a slew of laws.

No one was indicted, which meant that an attempt to redeem the destructive legacy of the Salleh impeachment was hobbled.

All that happened were that Salleh and the late Justice George Seah, in 2008 the only surviving members of the judicial coterie embroiled in the saga of Salleh’s impeachment, were granted apartial restoration of their honour and perquisites.

The cascading effects of the bludgeon blows to the judiciary’s independence caused by the impeachment remain to this day.

Would that Anwar had felt his pangs about judicial propriety and independence in 1988 – not later, as he apparently did in 1996.

No doubt, it is sterile to speculate on the-what-might-have-been, except to say that a timely protest can be preventive of horrors that lie in wait for those who unfurl their concerns only when it is expedient to do so. — TERENCE NETTO