Objectively speaking it is politics that makes us all lawyers and liars alike

Can we, or will we continue to rely on the loudest noise test to determine which version is true?

Kenneth Lee

“What do you call a thousand lawyers chained together at the bottom of the ocean? A good start.”

This was a joke shared between two lawyers in the 1993 movie “Philadelphia” about how an eminent Philadelphia law firm of old school type gentlemen fired their star associate Andrew Beckett (played by Tom Hanks) because he had AIDS, such discriminatory act being against the law in the state of Philadelphia. I thought it was a great movie with great lessons about breaking the law, lawyering and human nature.

First lesson – that joke might be closer to the truth than most lawyers would like. And just when we are trying to “drown” lawyers at the bottom of the ocean, the highly tensed school of narrow politicking in Malaysia seems to be churning out new ones. It is difficult not to confer law degrees on some quarters (especially those with a mouth and access to Internet) when they all seem to have the “right” opinion on what constitutes corruption, donation, political funding, sedition, investigations, human rights and a host of other topics intriguing in Malaysian politics today.

When WSJ broke the RM2.6bn story, Opposition supporters came out screaming that it was a slam dunk case against him. When PM Najib Razak explained that it was a political donation, they decried him a liar with the retort that it was not possible for a donor to be so generous to part with RM2.6bn (even if Saudi Arabia’s Foreign Minister has publicly stated that the donor was from Saudi Arabia). And when it was revealed after investigations that PM Najib Razak had returned most of the donation, they then sung a different tune that he should have kept the monies to spend on the Rakyat. Sarcastic or not, there are some who took it to heart.

When UMNO MP Shahbudin Yahya questioned DAP MP and Chief Minister of Penang Lim Guan Eng about his RM2.8m purchase of 25 Jalan Pinhorn Penang in a similar fact scenario to former Selangor Chief Minister Khir Toyo’s corruption case, pro-Barisan Nasional supporters came out screaming that it was a slam dunk case too. Of course Opposition supporters shouted even louder in Lim Guan Eng’s defense that this was a “willing-seller willing buyer” transaction, despite there being no cheap sales going on in Penang. The best defense seen by far is that it was not his property that was undervalued, but that the properties in his neighbourhood have been overvalued. So apart from “law degrees”, perhaps these pro-Opposition Malaysians should also become accredited as estate agents and valuers with their extensive knowledge of the real estate market in Penang.

Of course there will always be two sides to every story, especially in partisan politicking between pro-government supporters and opposition sympathisers.  The question is – do any of the arguments make sense, or are we just saying them for the sake of winning?

When the Attorney-General Apandi Ali cleared PM Najib Razak of wrongdoing based on months-long investigation papers submitted by MACC, all we heard from the Opposition side of the fence was how biased that decision is. But when the same Attorney-General dropped the charges against Azmi Shahrom and Teresa Kok for sedition (which were instituted by their former enemy and newfound friend Gani Patail), no one praised him and said that these decisions were a long time coming.

So it seems that if the AG decides favourably for Opposition causes, then no one challenges it. If the AG decides against Opposition causes, then there will be no end to the hue and cry since this is a do-no-wrong Opposition team after all, right? Why is it so impossible to believe that AG Apandi Ali’s decisions can be made without fear or favour based on objective review? Please can someone “explain it to me like a four-year old”.

Disliking the AG’s decision not to prosecute PM Najib Razak, the Bar Council has filed a motion to seek judicial review of the AG’s decision. This move was applauded by the Opposition, as something had to be done about the damn AG, right? Bar Council has claimed that they are non-partisan and their fight is about the rule of law and administration of justice. Taking everything said with a pinch of salt, it is important to remember that there are many amongst the Bar Council leadership who are themselves activists, campaigners and counsel for Opposition leaders and NGOs who harbor anti-establishment sentiments. How much do their personal experiences and leanings shape and influence their actions? Is it true that the Bar Council is trying to uphold the law, or are they merely currying favour with their vocal Opposition crowd?

So it is curious what will happen if the AG decides to prosecute Lim Guan Eng. Or even more curious still, what if he decides not to prosecute Lim Guan Eng. Will the Bar Council file a similar motion for judicial review since the case against Lim Guan Eng for corruption is plain and obvious to many, or will they show their true pro-Opposition colours and keep silent because Lim Guan Eng is their saint or say the investigations are tainted by political motivation yet again?

When UMNO MP Azalina Othman said in Parliament that the action by Bar Council to review the AG’s decision made the RM2.6bn matter subjudice from comments, PKR MP N Surendran who is also a lawyer said that it was not. His reasons were twofold – one, that the judicial challenge is a separate matter from the truth of the allegations against PM Najib and two, because of its national importance it was excepted from the subjudice rule. Another lawyer also posited in a recent Malaysiakini article headlined “Bar Council Does Not Do Politics” that the subjudice rule was an obsolete one, which ought not apply in a non-jury system like Malaysia.

I don’t mean to argue or be pompous here, but a closer study will find that the subjudice rule is very much alive and kicking in many similar non-jury jurisdictions like Singapore, Philippines and the UK and can apply both in bench trials by judges and even civil proceedings. It remains a necessary rule against risk of prejudice to professional judges and witnesses who may be influenced by public pressure to succumb to the popular view even if it is not the right one. It is precisely in a case of national importance where this rule should apply to prevent the powerful pervasive effects of media and public opinion. In “Philadelphia”, the presiding judge reminded Andrew Beckett’s attorney, Joe Miller (played by Denzel Washington), that justice is blind to matters of race, creed, color, religion and sexual orientation. Joe Miller replied, “With all due respect, your honor, we don’t live in this courtroom though, do we?” And neither do judges, witnesses, lawyers and members of the Bar Council.

When pro-BN lawyer Shafee Abdullah came out to say that the Bar Council did not have locus standi to file such a judicial review against the decision of the AG, this was responded in a Facebook post by a non-lawyer Khairuddin Hassan claiming that he had locus standi in the matter since he was the one facing enormous pressure due to his detention under SOSMA. If we applied here PKR MP N Surendran’s logic that the judicial review and the case against PM Najib are separate, then shouldn’t it be argued that that a man detained under SOSMA for an entirely different matter has no connection to the judicial review filed by the Bar Council.

All this goes to the point that this is what happens when a bunch of lawyers (and self-proclaimed lawyers – or colloquially “loyar buruk”) join in any fray. We can all argue and contradict each other, go left and right with it till the cows come home and yet be no closer to right or wrong. Add politicians to the mix, and often you get a double-standard concoction of statements devoid of truth and logic which is repeated blindly by their followers. Justify it as a healthy exercise of free speech, they can twist facts into fiction and the law into cinnamon swirls.

It is this kind of constant politicking and bickering that makes us all lawyers and liars alike. But argue as much as we might or bitch as much as we might, there is no hope for Malaysia’s current environment of political one-upmanship and online vigilantism unless we can objectively, based on hard facts setting aside our political affiliations, “sift through layer upon layer of truth to determine for ourselves the version which sounds the most true”. Can we, or will we continue to rely on the loudest noise test to determine which version is true?

Which brings me to the final lesson of “Philadelphia”. In defending his client, Joe Miller himself a homophobic said, “some of these people make me sick. But a law’s been broken. You remember the law, don’t you?” So to all Malaysians who have been thoughtlessly pointing fingers and making accusations at the other side, please remember the law.

And to those hardcore supporters who continue to blindly believe that the politicians they idolise (or Tokongise as the case may be) are angels, there is an additional lesson for you. “Faith is the belief in something for which we have no evidence.”