In 20 years of legal practise, I can recall 2 instances when I applied to recuse presiding judges.
The first, in 1996, involved a High Court judge.
The second instance, in 2007, a coram of 3 Court of Appeal judges.
In both instances, the concern was the real risk of bias.
Not actual bias, but the real risk.
I stand to be corrected by legal practitioners, but in most applications of this nature, the foundation is not actual bias, but the risk that it will be perceived by the public at large that the actions of the person concerned were motivated by bias.
Justice, as is said, must not only be done, but be manifestly seen to be done.
Else, public confidence in the decision-making process will erode.
Faekah now finds herself in a similar situation.
She had sent out a number of letters recommending law firms to undertake legal work for Selangor state-owned Permodalan Negeri Selangor Bhd.
Her niece is a partner in one of those law firms.
Was she in a ‘conflict of interest’ situation vis-a-vis her niece’s law firm when she issued that letter?
Arguably, yes.
Might she have been biased when she included her niece’s law firm for recommendation for legal work from the state-owned company?
It could well be perceived that way.
And, in the final analysis, whether she should relinquish her post should not turn on the question whether there was in fact bias, but whether there is reasonable ground for the public to perceive bias in the decision-making process.
It may well be that when she issued the letter, no thought entered her mind that she ought not to be signing the letter in respect of her niece’s firm.
If so, then, respectfully, this was a lapse of good judgment on her part that now has thrust her boss, the MB, into a controversy not of his own making.
Malaysiakini reports that Khalid has come to Faekah’s defence.
Frankly, though, his argument that “whether or not the letter can be regarded as a support letter is still another issue” is, to my mind, rather lame.
The contents of that letter, especially the last sentence, speaks for itself.
Now, it seems, arising from her lapse of judgment, if indeed that is what it was, Khalid has been made the subject of show cause proceedings by PKR. Malaysiakini has the story HERE.
Faekah ought to do the decent thing.
Gan
July 5, 2012
I agree, especially this “Justice, as is said, must not only be done, but be manifestly seen to be done.” and just like some instances whereby a person is not found guilty by the Courts but guilty as hell in the mind of the public ! I can remember such a case involving a MB !
Another Anak Bangsa Malaysia
July 5, 2012
Good point re that conflict of interest.
Malaysian politicians should start learning what the term means.
If Faekah chooses to sacrify herself by stepping down, it could be very handy to use “conflicts of interest” against BN as they will have little defence.
Also by stepping down, Faekah could also demonstrate the seriousness of PR in cleaning up the cronyism, corruption and of cos, conflicts of interest. This will be a very very hard act for BN to follow
Faekah should consider the matter carefully and hopefully do the right thing.
asjj
July 5, 2012
bro harris agreeing with rpk, to kucar kacirkan pkr he he…
SpeakUp
July 6, 2012
Too much fighting/in fighting in PKR etc. This is not the way to go. Why do people become all that they hate? Sad la … very sad.
nah
July 6, 2012
Infighting in PKR is a spin created by umno press and RPK to portray the party as weak with corrupted individuals. The MB does a good job countering the allegations that come about but the umno press does not print them. Read Mkini and Selangorku and you will get a better picture.
the mythbuster
July 7, 2012
Faekah’s letter recommended a number law firms to undertake legal work for Permodalan Negeri Selangor Bhd. It so happens her niece is one of the lawyers in one of the firms. Her niece is not the owner or a senior partner of the firm.
If Faekah had recommended ONLY the law firm where her niece is employed, I would say she is wrong to make such a crony decision but her letters were to five other firms too.
As such asking her to resign is not the correct thing to do. It is tantamount to witch hunting which UMNO and its sleepers in PKR do all the time.
When Najib unilaterally bypassed the recommendation to employ a consortium to build a mega project in favour of another consortium, why wasn’t he asked to resign? What he did was cronyism and patronage, the way mamak Mahathir Mohamad Kutty used to do business when he was the undisputed dictator of Malaysia.
PKR is not pure because its dna is from UMNO.Though not all leaders and their supporters in PKR are clean, it is perceived to be corrupted and arrogant because of leaders like Azmin Ali. The infighting in PKR is in the warlords dna trait of UMNO which will take time to be completely incised and discarded.
RPK has gone top gear in criticizing PKR and is doing his level best to undermine it before the 13th GE. Let us not give too much weight to his ramblings. He is fighting for Najib to take over Selangor by hook or crook.
Antares
July 7, 2012
This is how I view this storm in a teacup: instead of pouncing on every instance that might even remotely be tainted by the notion of nepotism or cronyism, let’s accept the obvious fact that humans were never meant to behave like robots – and that as long as there is core of decency and integrity, we must allow enough flexibility for life to be possible. If I’m embarking on a big project and am looking for people to assign various tasks, it’s only natural that the ones familiar or at least known to me would be top of the list. Unless they are incompetent or overcharge, I see no reason why a particular legal firm must be disbarred from putting in a tender – just because one of the partners happens to be Faekah’s niece. The important factor is that the legal firm that wins the contract must perform credibly and at reasonable cost. It’s only when the contract is handed over to somebody unqualified, or who grossly overcharges, or who offers kickbacks, that there is cause for raised eyebrows and a serious investigation. To be a fanatical stickler for “principle” only leads to a form of robotism witnessed only in control-freak countries like Singapore (where if you bring in more than 19 sticks of cigarettes, you either get heavily taxed or your extra cigarettes are destroyed in front of you, just to ensure that nobody else can enjoy your duty-free tobacco). Who wants to live in such an anal retentive reality? As far as I can see Faekah Hussin is a brilliant public servant who inspires confidence, and she gets on fine with her boss the MB. She is among the rare few who come across as competent, honest and dependable. It would be a terrible shame indeed to lose such a person over what is ultimately a minor gaffe or indiscretion – even if her niece’s legal firm was awarded the contract, I still have no problem with that – so long as they perform well, don’t overcharge, and don’t indulge in corrupt practices. Over time, if her niece’s firm were to be found wanting, the MB can easily terminate the contract, and not much harm would result from that. However, in the case of Najib awarding the Ampang LRT Extension Project to George Kent – a company clearly lacking in experience and expertise for such complex work and who not only quoted higher than others but also failed to be shortlisted – the problem becomes very serious indeed. Here, it’s a classic case of corruption and cronyism which serves to unjustly reward Najib himself – and such a cavalier attitude towards public safety is akin to giving Lynas the green light to refine rare earth, even though they have no idea what to do with the toxic waste. Haris, in the real world, we must know when to shrug something off – and when to put our foot down firmly. Both instances (Faekah Hussin endorsing a legal firm where her niece is a partner; and Najib Razak using political muscle to push aside more qualified tenders in favor of his crony, George Kent) involve abuse of power issues – but in the case of Faekah, it strikes me as nothing more untoward than sticking her neck out a little to help her niece win an open tender; whereas, the Ampang LRT Extenson Project carries very dire consequences for commuters should the job be assigned to an unqualified party. In short, I feel you’re being unnecessarily petty and pernickety. We wish the next federal administration to be clean, of course, but not so clean as to become sterile, humorless, and pedantic to a fault.
wandererAUS
July 8, 2012
Bro Haris, you should recuse yourself as a critic of Faekah, ever since, you are deeply involved in the activities with the asshole PKR who was “bought over” to become BN spokesperson.
Keep to ABU, continuation with your association with that little rajah, UMNO pimp, will only degrade yourself further. (Judging from the number of comments from your readers, no one is interested in petty kitchen politics!)…cheers!
wandererAUS
July 8, 2012
Sorry typo mistake, I mean RPK in my previous posting
skl
July 25, 2012
No wonder RPK is pissed. The comments of wandereraus and the others that is so pro pakatan and with approach of nothing PKR does is wrong. I trust Mr harris more than any politicians that is my gut feeling. From what i understand Mr harris is setting a high standard for politicians to follow. Not a bad thing. To give excuses and apologist is not good enough. Sure we can all do better so in effect just do so when being pointed out and thank them for doing so would be professional and dealing with it maturely. The point raised by Mr harris is succinct. Justice, as is said, must not only be done, but be manifestly seen to be done. Giving excuses of what others had done which is far worse is not a license to do less bad. Killing thousands or millions is just as wrong as killing one person. Granted severity is different however does not justify it as more right. A bigger sin and a smaller sin is still a sin and you cannot called anything else. Those who defend it doesn’t have a leg to stand on.