Chong said in Kota Kinabalu that it was most regrettable that Muhammad Kamil did not take any of the several options available upon receiving the alleged directive to strike off the Likas petitions without a hearing.
He said that while the Sabah Barisan Nasional respects the judge¡¦s decision to nullify the 1999 election result, Muhammad could have done something about the alleged directive.
He said that at the material time, the judge could have discharged himself from hearing the petitions upon receiving the directive, reported the matter to the relevant authorities or alternatively, when he started to hear the case, he should have, in the presence of all the parties and their counsel, disclosed that he received the said directive and asked if the parties concerned were comfortable that he heard the petition.
Chong said that instead, injustice had been done to the successful candidate in the election.
Chong is being most unfair and unrealistic in making such claims.
As it is now clear that the ¡§judicial superior¡¨ alleged to have made the ¡§telephone directive¡¨ to Muhammad Kamil was the then Chief Justice, Tun Eusoff Chin - who had admitted being the caller but denied instructing the judge to strike out the election petitions without a hearing - is Chong seriously suggesting that the options which he spelt out were realistic options before the judge at the time?
If Chong had been in Muhammad Kamil¡¦s shoes in September 1999, would he have availed himself of anyone of the options he had outlined?
Who are the ¡§relevant authorities¡¨ at the material time that Muhammad Kamil could report the matter to, if not to Tun Eusuff Chin himself?
Is it being fair and realistic for anyone now to claim that Muhammad Kamil should have publicly disclosed the ¡§telephone directive¡¨ from the Chief Justice to explain whether discharging himself or asking all the parties concerned whether they were comfortable that he heard the petititons before he started the trial on September 27, 1999?
Let us not delude ourselves or forget that 1999 was one of the darkest periods of the judiciary, and no less a person than the present Chief Justice of the Federal Court, Tan Sri Mohamed Dzaiddin Abdullah admitted to the "unpalatable fact that public confidence in the judiciary has eroded in the last few years" at his first meeting with 71 senior judges¡¦ on 13th January 2001 soon after his appointment.
At the meeting, Dzaiddin acknowledged that "in reality, this negative
perception has held back the country¡¦s development as multinational corporations
and foreign investors are reluctant to invest because they perceive there
is no level
playing field", causing them to prefer arbitration outside Malaysia in the event of dispute.
He declared that his mission as the new Chief Justice is to "bring
the judiciary back to its past glories" and he called on all judges to
close ranks to work for the "good of the judiciary, country and faithfully
discharge our duties by giving
justice to the people".
In September 1999, when the ¡§telephone directive¡¨ was alleged to have been made, Eusuff Chin was riding high and no allegations, however serious, could touch him.
In fact, three weeks before Muhammad Kamil started the hearings on the Likas election petitions, I had on 5th September 1999 publicly called on Eusoff Chin to vacate his judicial post as Chief justice until he was vindicated by an independent inquiry as he had not responded to very serious charges affecting his integrity striking at the very root of judicial independence.
I had referred to the serious allegation about judicial impropriety alleged against him in court in the Asian Wall Street Journal (AWSJ) defamation case the previous week, where the notorious Internet photographs and allegation that Eusuff Chin had placed himself in the debt of lawyer Datuk V.K.Lingam in having their families holidaying together in New Zealand in 1994 first surfaced publicly.
But Eusuff Chin just rode roughshod over the allegation, later claiming that he had ¡§bumped¡¨ into Lingam during his holiday in New Zealand while on his way to a zoo - when he met Lingam who tagged along and later posed for photographs with him!
In other countries, faced with such an allegation backed up with photographic and other evidence, the Chief Justice would have resigned, but in Malaysia, Eusuff Chin enjoyed such immunity that his tenure of office was extended another six months.
In fact, up to now, there has been no satisfactory accounting nor known comprehensive investigation into Eusoff Chin¡¦s holidaying with Lingam in New Zealand.
In the circumstances, it is completely understandable why the options which the Sabah Chief Minister outlined never really existed for Muhammad Kamil at the material time, and the judge must be commended for his courage in exposing the ¡§telephone directive¡¨ from his superior.
The Star has reported that Deputy CID Director Deputy Comm Datuk Ramly Yussuf has confirmed investigation into the ¡§telephone directive¡¨ has begun and that the police have classified the case under Section 219 of the Penal Code to be read together with Section 108.
Section 219 of the Penal Code refers to "Public servant in a judicial proceeding corruptly making an order, report, etc., which he knows to be contrary to law" and reads: "219. Whoever, being a public servant, corruptly or maliciously makes or pronounces at any stage of a judicial proceeding, any report, order, verdict or decision which he knows to be contrary to law, shall be punished with imprisonment for a term which may extend to seven years, or with fine, or with both."
Section 108 of the Penal Code relates to abetment, and reads: "A person abets an offence who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor."
Reading the two sections, the question arises as to whether the police is investigating Muhammad Kamil or the ¡§caller¡¨.
The Muhammad Kamil-Eusuff Chin controversy has raised anew the controversial New Zealand holidaying of Eusoff Chin while Chief Justice and the authorities must explain why up to now, no comprehensive investigations had been conducted and whether such an investigation will now be conducted.