Lawyers, when arguing their cases, take exceptional care to refer to cases decided upon by the judge hearing them. That is insurance against one who feels slighted when other more prominent decisions question his own integrity. But is rare for a judge to blow off his handle because one of his judgements were not referred. There is the underlying understanding that this is done so as not to annoy the judge unnecessarily. After all, what he wants is victory for his client, which he does not want to jeopardise by factors other than the soundness of the case he argues. Today, he must ensure that this does not bring him in contempt in a system a new legal principle is busily fashioned: a lawyer must not put forward a case for his client which would question the integrity of the judges appearing before him. Unless he is a Dato' Seri Anwar Ibrahim, who can, and has, with impunity, accused the Chief Justice of corruption and worse. The Chief Justice, who has acquired a particularly thick skin these days, did not see how these accusations by a petitioner that he could be biased would make him biased.

The courts convicted him of sodomy and corruption, he is deprived of his liberty since September 1998, his appeals against a total of 15 years imprisonment wend its way through the courts, which must be successful in the present regime. When the Chief Justice refuses to recuse in a routine appeal despite an impassioned request from Dato' Seri Anwar on grounds of corruption and other malfeasance of office, the political framework of the appeals are set. Freedom of expression is no better expressed than when an accused is allowed to speak on his behalf. But the courts would rather he keep quiet. His continued incarceration is political, as former President Nelson Mandela of South Africa was though sentenced to life imprisonment on criminal charges. The Prime Minister cannot discuss the state of the economy or the environment or the world in foreign climes without a question about Dato' Seri Anwar Ibrahim. His visits overseas are rudely interrupted by pro-Anwar supporters, many of whom Malaysian, and only when overseas would he dare to speak before a Malaysian audience. His difficulties in this regard is the way his administration has dealt with his former deputy prime minister.

The Malaysian international trade and industry minister, Datin Seri Rafidah Aziz, is in the United States to drum up investment. Malaysia wants foreign investment, but on her own terms. Foreigners should not question -- "had no right", in her own words, to question -- how the Malaysian judiciary woks: it is impartial and independent. Never mind that few concerned parties outside the government and unfortunate liigants do not think so. But the independence and impartiality of the judiciary, whatever the spin put on it, is why most foreign investment and contracts with Malaysians insist upon arbitration in foreign countries in a dispute. Singapore is the preferred choice. No foreign investor would invest hundreds of millions of ringgit in Malaysia and lose it in a dispute if his Malaysian partner is a prominent business man or if his lawyer goes on holidays with the Chief Justice. That is not all. Contrary to the spin Malaysian officials put on ministerial foreign investment visits, foreign investors hold Malaysia to ransom, demanding better facilities than the law allows. Motorole, for instance, threatened to relocate its investments in Malaysia in Vietnam. It got what it wanted, and better than those who come in under tax holidays or investment incentives. The Prime Minister had to plead with them in the United States to stay, giving them the investment guarantees they asked for.

THE DE FACTO LAW Minister, Dato' Rais Yatim, says damages awarded for defamation is grossly out of proportion to personal injury cases. He points to the Federal Court's affirmation of the RM10 million awarded to the Berjaya Group supremo and Big Mac chief, Tan Sri Vincent Tan. Dato' Rais' remarks, made when a Bar Council committee called on him on 04 September 00, castigates the Chief Justice (more popularly, Big Chief Injustice, in legal circles), Tun Eusoff Chin, and in terminal shock after He Who Must Be Destroyed At All Cost mercillessly castigated him for his corruption, bias, stupidity, injudicial conduct and much else in court recently. There is more to the bare bones of the news report than meets the eye. But when the government decides the courts cannot be depended upon to decide on defamation damages and on judicial discretion in contempt of court, and wants to codify the provisions, the genteel words exchanged hides not the bitter enmity between the law minister in charge of tables and chairs and the holiday companion of Tan Sri Vincent Tan's bodyguard and lawyer surfaces ineluctably..

The Attorney-General, Tan Sri Mohtar Abdullah, was, until recently, widely tipped to succeed Tun Eusoff Chin as Chief Justice. Not any more. A former High Court judge, he was chosen five years ago over the president of the court of appeal, Tan Sri Lamin Yunos. He was under 55 and Tan Sri Lamin not, and the authorities did not want to upset the civil service applecart by appointing someone beyond retirement age. The then outgoing Attorney-General, Tan Sri Abu Talib Osman, had nominated another, but the former Lord President, Tun Hamid Omar, who remains, despite his indiscretions, a powerful figure behind the scenes on matter concerning the judiciary and the legal service, opted for Tan Sri Mohtar. And Tan Sri Mohtar it was. He quickly immersed himself in the perks of office, going off on holidays with such eminent counsel as Dato' V.K. Lingam -- the holiday company of the Chief Justice who returns the favour by not allowing him to lose a case -- and eminent business men as Tan Sri Vincent Tan. But such actions, which would raise many a legal eyebrow, is commonplace, or was until He Who Must Be Destroyed At All Cost's excoriating diatribe in court against the Chief Justice and the judiciary in general.

Nero fiddles as Rome burns; as his latter-day Malaysian incarnation, Tun Eusoff Chin, after setting fire to the institution. Ignoring the controversy he ignited, he wants, four days before his retirement, far-reaching innovations and money-making schemes implemented in the judiciary without understanding, intent. or preparing the ground for it. He could have, if he wanted to, ensured much needed reforms like computerising the courts. He could have strengthened the institution by practical changes that could have brought it to the respect it once had. He could have all this and more if he wanted to. But he did nothing. He is not, nor could he ever in a dozen reincarnations, Malaysia's Coke nor Halsbury nor, for that matter, Judge Jeffreys. A ho-hum judge thrust into high office in a cynical Prime Ministerial power play to ensure the judiciary is no more than the executive's whipping boy, he would have done brilliantly if he had just disappeared into the woodwork. He misunderstood why he, as Chief Justice, was there: the judicial whipping boy. Instead, he made it his albatross by demeaning the office with his pettiness and his unwarranted friendship with a particular lawyer and litigant that ensures his departure in a cloud.

The minister should address delays in the judiciary. One man still fights for justice denied him when a judge did not give written grounds for his judgement, making it impossible for him to appeal. This case is almost 21 years old. Another man, now in his late 70s, continues to hit his head against the judicial wall, wanting the grounds of his action, which he lost 27 years ago, which the judge did not write them and has now retired. This is such an embarassment as the case is continually postponed, hoping that the litigant would die. In the M.G.G. Pillai v Tan Sri Vincent Tan, the Federal court heard the appeal 25 months ago, and despite requests, the judgement could well not be released. All three in the cora retire this year. The lawyer in that case, Dato' V.K. Lingam, is alleged, in an affidavit, to have written the judgement in that case for the High Court judge. Delaying writing judgements constitues judicial misconduct, but no judge has ever been penalised for it. The minister should address that -- and demand resignations or removal from the bench for persistent offenders. When the judges involved, as in the M.G.G. Pillai case, are the Chief Justice and two chief judges, it underlines the irrelevance of such rules enacted to ensure that justice is not delayed. If the judgement of the Court of Appeal is affirmed, as a result, it represents yet again the view that judgement goes to those lawyers who go on holidays with the Chief Justice.

Instead what this conviction shows is the dichotomy in people's minds about what justice is all about. It is more than a philosophical decision, but whether the accused in cases in which the government has a vested interest in the result could get a fair trial. In none of the previous high profile cases in which cabinet ministers and chief ministers have appeared in court has doubts been thrown about judgements written to destroy, not punish, the accused. The Attorney-General's hamfisted prosecution would have destroyed his case without defence being called. It was not. The charges were amended when the Attorney-General's Chambers could not justify the sodomy allegations. But the Prime Minister assures the world that system is fair, and those who challenge his premise did not read the 384-page judgement. But in such matters, it is perception than reality that counts. In the past, people did not read full judgements to assume the soundness and impartiality of the Malaysian judiciary and its judges. When you have to read a 384-page judgement to decide whether the judiciary if fair and independent, that is proof enough it is not. The Chief Justice, Tun Eusoff Chin, believes that whatever acts that would be judicial misconduct in others do not apply to him and judges on his side. But Tan Sri Khalil has not come up with a firm statement as he did yesterday about the fairness of the Malaysian judicial system. Why has he not? The conviction of man caught red-handed, whoever he may be, is not test of a judiciary's fairness or independence. It cannot be.

The Asian Wall Street Journal reporter, Mr Rapheal Pura's sworn statement that the influence-peddling lawyer, Dato' V.K. Lingam, wrote part of Mr Justice Mokhtar Sidin's judgement in the Tan Sri Vincent Tan v MGG Pillai & Others case creates shivers down the spine of lawyers and laymen alike. Dato' Lingam's frienship with the Chief Justice, Tun Eusoff Chin, with whom he goes on holidays, is well known. Several important questions arise from this. Could it be possible Dato' V.K. Lingam helped in writing judgements in other cases where he appeared side? What guarantee is there this is an isolated occasion? Equally important, what guarantee is there that Mr Justice Mokhtar Sidin had had his judgements written by other lawyers in other cases? Can a litigant appear comfortable in an appeal -- Mr Justice Mokhtar has since been elevated to the Court of Appeal -- in which he sits with others known to be friendly with Dato' V.K. Lingam? Worse still, if Dato' Lingam appears on the other side, can the litigant hope for justice?

In this inexhorable lurch, with official blessings, towards a fascist Bolehland, discernible in the aftermath of the Anwar Saga, the judiciary and the Attorney-General's Chambers have played a stellar role. The Chief Justice, Tun Eusoff Chin, accepts the problem, wants to resolve it, recently called on Malaysians to accept judicial judgements, suggesting the judges' role is that of a referee and that one party must inevitably lose. But he did not address the central issue: the Malaysian public accepts this but feels, rightly or wrongly, that other than legal considerations come into play when particular judges preside or when paricular lawyers appear. Business men and politicians use the courts to fighten potential critics, a tendency to which the courts have allowed. Defamation suits demand hundreds of millions of ringgit in damages. Courts awards costs of hundreds of millions, the most recent more than RM600,000 against the Malaysian Bar when it failed, in appeals up to the Federal Court, in its attempt to discipline one of its members. This feeling can only be erased by the judiciary itself.

The appellants were allowed a five-man bench when hearing was first scheduled in January last year, but that was postponed. But the court rejected Pillai's counsel's request for both a five-man bench and for the Chief Justice, Tun Eusoff Chin, to step down for a newspaper comment attributed to him that libel damages should not be capped.

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