MGG defamation appeal judgment : Eusoff Chin has deepened  the ethical crisis of the judiciary

Media Statement
by Lim Kit Siang

(Petaling Jaya,  Thursday): Chief Justice Tun Eusoff Chin has deepened  the ethical crisis of the judiciary  yesterday.

An important public revelation was made  last month after the public exchange between the Minister in the Prime Minister’s Department, Datuk Dr. Rais Yatim and the Chief Justice of the Federal Court, Tun Eusoff Chin over the former’s earlier reproachful remarks  about about photographs posted on the Internet showing  Eusoffs socialising and holidaying with lawyer Datuk V. K. Lingam in New Zealand in December 1994.

On 6th June 2000, Eusoff publicly  responded to Rais’ interview with the Australian Broadcasting Corporation where the Minister had said: "Certainly such socialising shall I say is not in keeping with the proper behaviour of a judicial personality and we have intimated to the chief justice that this is a behaviour improper and this has been intimated to him in no uncertain terms."

Denying that Rais had ever discussed the matter with him, Eusoff said he had paid for his holiday in New Zealand in 1994 where he "coincidentally bumped" into Lingam.  He said he was on the way to a zoo when he met Lingam who tagged along and later posed for photographs with him.

The New Straits Times of 7th June 2000 reported that Eusoff showed reporters copies of bank statements and payments for the holiday which had cost about RM19,000.

Eusoff  also said that the matter was raised by the former Bar Council chairman, Dr. C. V. Das who was satisfied when shown copies of the documents.

This led to a clarification  by the Bar Council president Sulaiman Abdullah on 9th June 2000 disputing the impression that the Bar Council had pronounced itself  "satisfied" over the propriety of the Chief Justice’s holiday in New Zealand with a lawyer.

Sulaiman said when Eusoff showed its one-time president Cyrus Das the credit card receipts and bills to prove that he paid for his holiday, Das had advised him to keep them safely.

He said the council needed to clarify its position as press reports had given the impression that the council, through Das, had examined the receipts and pronounced itself satisfied.

Giving the sequence of events, Sulaiman said the council’s then vice president R.R. Chelvarajah and then secretary Mah Weng Kwai met Eusoff in early 1998 when the holiday photographs showing the Chief Justice and Lingam  socialising and holidaying in New Zealand surfaced on the Internet.

Chelvarajah and Mah had asked Eusoff to disqualify himself from hearing the appeal in Datuk Param Cumaraswamy’s case as Lingam was appearing as counsel for the two MBf companies suing Param for libel.

The Chief Justice had told them he would consider the matter and he later informed Das, who was then the council president, that he would not hear any matter where Lingam was appearing.

In 1999, Das was no longer president but he had met Eusoff several times over preparations for the Commonwealth Law Conference and special programme for Chief Justices later that year.

At one of these meetings, the Chief Justice indicated a large stack of credit card documents and bills on his table and said something to the effect that those documents would show that he had paid for his holiday.

Sulaiman said Das politely advised the Chief Justice to keep the documents safely and as Das was no longer the president, he did not report this to the council.

Yesterday,  the Federal Court headed by Eusoff handed down its judgement on the MGG defamation appeal after a delay of 30 months. Many questions about judicial propriety cry out for answer.

Firstly, as Eusoff had given the Bar Council an undertaking in 1998 that he would not hear any matter where Lingam was appearing, clearly to avoid bias or perception of bias on his part, was it proper for him to lead the three-man  Federal Court panel giving a judgment in the MGG Pillai defamation appeal as Lingam was one of the counsel in the case?

As Chief Justice, Eusoff should be aware not only of the maxim that "Justice must not only be done but be seen to be done", but the equally important corrollary, that  "judges must not only be ethical but must be seen to be ethical".

In promising the Bar Council in 1998 that he would not hear any matter where Lingam was appearing, and yet continue to be a member of the Federal Court corum on the MGG defamation appeal, Eusoff had failed to live up to the principle that "judges must not only be ethical but must be seen to be ethical".

Secondly, why didn’t the Federal Court judges who heard the MGG appeal appear in person to deliver the judgment, which was read out in open court by deputy registrar Siti Mariam Othman.

The other two members of the Federal Court on the MGG defamation appeal which reserved judgment on January 13, 1998 were the Chief Judge of Malaya Tan Sri Wan Adnan Ismail and Chief Judge of Sabah and Sarawak Tan Sri Chong Siew Fai.

Chong retired last Tuesday on July 4, after a six-month extension.  Why wasn’t the Federal Court judgment handed down before Chong’s retirement? Was the judgment read out by the deputy registrar yesterday fully endorsed by Chong, and if so, when?   Is this  another judicial impropriety?

Even without Chong, why didn’t the remaining two Federal Court judges appear in court to hand down the judgment in the landmark defamation case as judges are expected to be exemplars of propriety and decorum.

Is  there an  acceptable reason for the 30-month delay in the handing down of the judgment in the MGG defamation appeal, as otherwise, this  would constitute  breaches of the Judges’ Code of Ethics 1994 on "lack efficiency or industry" (Section 2e) and "inordinately and without reasonable explanation delay in the disposal of cases, the delivery of decisions and the writing of grounds of judgment" (Section 2f).

However, the biggest ethical dilemma personified by Eusoff is his personal involvement in the controversy that he had himself violated the Judges’ Code of Ethics and his inability to clear the cloud of judicial impropriety and misconduct arising from his New Zealand holiday with lawyer Lingam in December 1994, especially new  allegations made by MGG Pillai, Malaysiakini and Asian Wall Street Journal that he had publicly told a lie when he claimed that he had "coincidentally bumped" into Lingam in New Zealand.


*Lim Kit Siang - DAP National Chairman