Revenge, reward and conflicts of interest
One cannot discount concerns that Apandi may have an axe to grind with both Mahathir, who terminated his appointment as attorney-general, and Thomas who succeeded him, which may taint the inquiry.
Ibrahim M Ahmad, Free Malaysia Today
Law minister Wan Junaidi Tuanku Jaafar’s defence of former attorney-general Apandi Ali’s appointment as chairman of the special task force reviewing the Batu Puteh sovereignty case is deeply concerning.
Once again, we are left with the impression that many in the country do not comprehend basic principles of natural justice – or maybe we just do not care enough.
To put it simply, natural justice is the moral foundation on which the law is built.
It rests on two fundamental principles. The first is that no person shall be a judge in his or her own cause, to avoid the judgment being tainted by bias. The other says that an accused must be afforded a fair and reasonable opportunity to present his or her case.
The dispute between Singapore and Malaysia over Batu Puteh has a long history. Suffice it to say that it was eventually decided in Singapore’s favour by the International Court of Justice in May 2008.
Nine years later, Malaysia, led by Apandi, who was attorney-general at the time, applied to the court for a review of that decision.
The following year, however, the Pakatan Harapan government, with Dr Mahathir Mohamad at its helm and Tommy Thomas as attorney-general, withdrew the application.
Even a cursory examination of those bare facts would lead to the conclusion that all three would be central witnesses in any inquiry into the matter.
That alone should disqualify Apandi from his position as chairman of the task force. How can Apandi chair a panel in which he himself is a potential witness?
Natural justice dictates that the task force chairman must be free from any appearance of bias.
The legal test to determine this is an objective one. It is whether a fair-minded lay person may reasonably apprehend that Apandi may not be impartial or unprejudiced during deliberations.
How can Apandi be expected to be impartial or unprejudiced when it comes to his own testimony?
That is not all. One cannot discount concerns that Apandi may have an axe to grind with both Mahathir, who terminated his appointment as attorney-general, and Thomas who succeeded him, which may taint the inquiry.
An opportunity to exert revenge would give rise to a classic conflict of interest.
Although Mahathir is well within his rights to complain, he himself was guilty of riding roughshod over this fundamental principle during the 1988 judicial crisis.
Mahathir convened a tribunal to inquire into the conduct of Lord President Salleh Abas which was chaired by Abdul Hamid Omar.
Hamid had a personal interest in the outcome of the inquiry as he had been named acting lord president and was in prime position to receive the ultimate reward of being appointed to replace Salleh in the event Salleh was sacked.
As it turned out, Salleh was removed, and Hamid succeeded him as the top judge.
A conflict of interest arises when it allows for revenge or reward. At the end of the day, a failure to understand natural justice will result in a failure of justice.