Aren't we already in a state of lawlessness?

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Regardless of its terms of reference, the people will have to contend with the independent panel to investigate violence during the Bersih 3.0 rally that has been handpicked by the government. And we may have to wait a little while before judging whether the panel is fair or biased, or simply redundant.

This is in view of the attorney-general's pre-emptive moves in charging several people under the Peaceful Assembly Act 2012, as well as having advised the government to sue the Bersih steering committee for damages.

The investigations, or any other action pertaining to Bersih 3.0, should have been put on hold once the government announced the formation of the said independent panel. Similar action was taken during the black eye incident, when I was instructed to put investigations on hold the moment the cabinet announced the setting up of the RCI. Abdul Gani Patail is fully aware of this precedent.

Be as it may, the impartiality of the panel has been a subject of contention since its formation was announced, particularly the appointment of Hanif Omar as the chairperson. The test of their impartiality will be whether the panel is willing to raise the issue on the position of Gani Patail, to whom the panel's findings will be submitted for a decision.

Where goes the panel report?

Although many will disagree, but if there is need for a panel to investigate Gani, then I suggest that both Hanif and retired Chief Justice of Borneo Steve Shim are the most appropriate persons to be in that panel. I am also of the view that Gani's antics cannot get past these two distinguished gentlemen.

For the benefit of all, this is Steve Shim's decision on Gani's conduct in Zainur Zakaria vs PP [2001] 3 CLJ:

"In the circumstances, was he (referring to Anwar Ibrahim) not justified, on a prima facie basis, in complaining that the AG's (Gani Patail's) conduct at the meeting on 2 October 1998 was an attempt to get Nalla to fabricate evidence in order to perfect charges against him (Anwar) for other alleged sexual offences?"

The former CJ is expected to defend his decision on the above and he will certainly be backed by Hanif, who knows the truth of what exactly happened in 1998 and how the facts were manipulated and by whom. Particularly now, since the panel's report will eventually be scrutinised by none other than Gani himself.

The government of the day, then and now, cannot deny being fully aware of Shim's decision on Gani. The government must recognise the former CJ's decision in the same manner Dr Mahathir takes cognisance of another Federal Court decision, as found in his memoir A Doctor in the House (page 695):

"Most Malaysians are ignorant of the contents of the judgment of the Federal Court, which acquitted Anwar on a technicality due to the error relating to the date of the incident. They are not aware that the majority of the Federal Court had held that in their judgment they found '...evidence to confirm that the appellants (Anwar and Sukma) were involved in homosexual activities and we are more inclined to believe that the alleged incident at Tivoli Villa did happen'..."

No one saw Anwar sodomise Sukma or anybody else, or having sex with any woman. The Federal Court came to that conclusion merely relying on evidence gathered or manufactured by Musa Hassan and presented before the judges by Gani and his prosecution team.

But where falsification and fabrication of evidence are concerned, several people saw what Gani did. Musa Hassan and Dr Rahman Yusof not only saw it but were parties to it, willingly or otherwise. Another pathologist from Hospital Kuala Lumpur testified in court that Anwar's blood sample for DNA tests was stolen from the doctor's custody on Oct 15, 1998.

Over and above that, I not only saw with my own eyes what Gani did, but I went to the extent of warning him of the complications that could be expected in the near future when he (Gani) is discovered, besides telling him of the stern instructions and warning from the prime minister himself, whom I briefed on Oct 8, 1998, that there should not be any cover-up in the investigations involving Anwar Ibrahim. Most importantly the products of the falsifications are available for all to see.

One important question immediately comes to mind: Which of the two Federal Court decisions cited above should be given more weight? It must be noted that Shim's decision on Gani came first.

Does that mean that if the court decides against Anwar, then the decision is said to be correct or is in the right direction, but when a court decides in favour of Anwar, then the court is wrong or the judge has a political agenda or may be labelled as a communist sympathiser?

If Shim's decision on Gani is not given its due weight nor respected by the government of the day, then Shim should not be allowed to remain on the panel. Should the government have some decency to accept a legitimate judicial decision of the highest court of the country, then Gani should henceforth be suspended and made to face the due process.

The government of the day must explain how on earth was Gani Patail, despite allegations of having a tainted resume, chosen to be the attorney-general in 2002 and how such conduct could have escaped the Yang di-Pertuan Agong's scrutiny.

Ulterior motives involved?

Either the government had ulterior motives or the government was simply negligent in exercising due care in vetting Gani's suitability and competency before he was recommended to be appointed as the AG.

Either way ,the Agong was deceived into believing that Gani Patail was the most suitable and not encumbered with any criminal culpability if compared with at least two other candidates. The Agong would not have appointed Gani had he not been so deceived.

Former Yahoo CEO Scott Thompson was fired just four months after his appointment, for merely allowing two inaccuracies on his qualifications to appear in his biodata that was filed with the securities regulators - one in accounting and the other in computer science.

It was not about qualifications he didn't have. It was all about honesty. If a CEO can cheat about his qualifications, then he can cheat about everything else pertaining to the affairs of the company.

Similarly, if the EC chairperson and his deputy can deceive the Conference of Rulers and the Agong with no feelings of remorse, then they can cheat on everything and anything concerning the electoral roll.

If our government copied the American model of gerrymandering, then it should also adopt their model of testing the honesty of the EC chairperson, as the Americans did with the former Yahoo CEO.

One must also not forget that Musa Hassan was reported to have committed perjury during a trial in 1998 by claiming to have a qualification that he did not, just like Scott Thomson. The only difference between them is that Thompson was caught once and given the boot, while Musa was caught three times in all and yet cleared of any wrongdoing.

If Gani Patail, who has a damning decision on his head and a preponderance of evidence in several other allegations of wrongdoings, can still be allowed to remain in office and carry on with his illegitimate ways of doing things;

If both the EC chairperson and the deputy are said to have secured their positions through fraud and misrepresentations and by concealing their present or previously held membership in a political party and yet are allowed to remain as custodians of the electoral roll;

If the prime minister himself, who could be proven to have affirmed false affidavits in September 2011 and knowingly filing the same in a High Court to avoid having to give his testimony before the said court and yet nothing was done by the appropriate authorities, then;

Are we not in a state of lawlessness already? No?


MAT ZAIN IBRAHIM is a former Kuala Lumpur Criminal Investigations Department chief.

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