May Day For Justice
by Tun Mohamed Salleh Abas, Former Lord President, Supreme Court of Malaysia, with K Das
AMONG THE HOBGOBLINS
A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. -- Ralph Waldo Emerson. Essays: First Series. 1841.
That night I was restless.
I had just returned from a farewell dinner which many of my fellow judges attended. I have mentioned the event earlier. It was to honour Justice Tan Sri Syed Agil Barakbah, who was to retire in a few days.
Many of my colleagues expressed their surprise and disappointment with my decision of that day. I will not go into their thoughts now. But it was clear many of them did not like my decision. However, there was one among them, I recall, who was the worse for drink that evening, who joined a small group of us and said my decision to retire was a good one. He was immediately dismissed from the circle somewhat rudely. That man was none other than High Court Judge, Datuk Ajaib Singh, who was to figure so prominently in my story very shortly.
Many of those present stayed on after the function and we talked about my predicament. I went home late that night, feeling that I must not do anything that might harm the integrity of the Judiciary.
I could not sleep. The polite language of Dr.Mahathir's letter accepting my resignation nagged at me persistently. The speed with which he responded to my letter also bothered me. And the eagerness with which the Attorney-General urged me to dispatch my letter began to look very suspicious. What was the rush late on Saturday afternoon, as the working week was dying?
I have met and spoken to the Prime Minister a number of times, and I am quite familiar with his usual disposition. His letter, brief though it was, was not in the language I expected. The letter, I had to face it, was decidedly odd. It was far too polite, particularly compared to the note of the previous day.
I turned the events and conversations of the last two days over and over and in my mind, and it all made no sense, and I began to suspect that I had been led into a trap.
I began to question carefully my morning decision to retire early under Tan Sri Abu Talib's cajoling and persuasion. Whatever he may claim to the contrary, it was nothing less than that. Earlier I had told the Prime Minister, in no uncertain terms, that I would not step down. Had I not said that "I will not resign, because if I do, I cannot show my face to anyone, and I may as well die?" (I should explain here that I used the word "resign" because the Prime Minister's message from the King was that I should step down. The suggestion that I "retire"-was a complication introduced by the Prime Minister only later. As for me, I wanted neither to "resign" nor to "retire"). And only moments before the Attorney-General came into my Chambers had I not signed a letter reiterating my determination to stay where I was, and face a Tribunal if necessary?
My dreadful feelings now in the middle of the night were that in agreeing with the Attorney-General that morning, I had blundered.
What would happen, I asked myself, to the principles of the Independence of the Judiciary of which I had said so much, in so many speeches, in so many forums in the world?
Had I not repeated these ideas with the enthusiasm bred of strong convictions, again and again?
My thoughts on the subject were not abstract, not academic. MY speeches were not empty rhetoric to pass the idle hour. I strongly believed in what I had expounded-d before so many audiences of learned men and women. If I abandoned them now, would I ever be able to face these friends and colleagues again? How could I face the public again, or even my children and grandchildren?
That night was a night of vigil. My mind was in turmoil. I prayed, and read the Holy Quran long into the night for guidance.
And it dawned upon me that it was not a question of my choice. I could not simply turn my back on the whole affair, or take the easy way out. Too many principles were at stake. I must not allow, by default, to let the world believe there was anything in the foolish allegation against me. I was not guilty of any act of "misbehaviour" as a judge or a man. The so-called allegation was absurd. I should not do anything that would give the lie any credibility. I must withdraw my offer of early retirement, and face all the consequences of this action, including a thorough public inquiry. God's Justice, in the end, must prevail.
Thus having made up my mind, I decided to act quickly - before the trap could be fully secured.
On the next day, though it was a Sunday, I went to my Chambers very early and began writing to the Prime Minister, telling him that I was withdrawing my offer After drafting the letter I discussed it with my lawyer, Raja Aziz Addruse who suggested some changes, and we composed a shorter letter than my original.
The final version which was dispatched to the Prime Minister by hand that afternoon read as follows:
"I refer to my letter dated 28 May and to your response of the same date.
"My letter of 28 May was written on the very next day after I attended the meeting called by you at which YAB Deputy Prime Minister and YB Chief Secretary to the Government were present. At that meeting you informed me that DYMM Seri Paduka Baginda Yang Di-Pertuan Agong had decided to appoint a Tribunal under Article 125 (3) of the Constitution to remove me from office, presumably on the grounds of misbehaviour. You had informed me that my acts which were objectionable consisted of my writing to DYMM Seri Paduka Baginda Yang Di-Pertuan Agong and the Malay Rulers, in defence of the Judiciary against your constant attacks and that I had expressed partiality in respect of the UMNO cases which had come before the courts. I do not deny that I had written the letters to the Yang Di-Pertuan Agong and to the Rulers expressing concern over the attacks made against the Judiciary by you, but in my view there was nothing improper in it since judges of His Majesty are appointed with the consent and approval of the Rulers. Further, the letter was written after a meeting of all the Kuala Lumpur judges held on 25 March. The allegation that I have shown partiality in the UMNO cases was completely untrue and was denied by me categorically.
"My being confronted suddenly with your statement that a Tribunal was being appointed by the Yang Di-Pertuan Agong came as a shock and stunned me, and when I came back to my Chambers I had thought that in the interest of the Judiciary and of all the judges it might be better that I applied for all the leave available to me with a view to earlier retirement. Hence my letter to you of 28 May, 1988.
"On careful reflection I have now come to the conclusion that it would be detrimental to the standing of the Judiciary and quite adverse to the interest of the nation if I were to go on early retirement as this could be construed as some form of admission.
"In the circumstances I withdraw my application for early retirement and to take all the available leave as mentioned in my above mentioned letter.
"I shall await the appointment of the Tribunal which, I have no doubt, will clear my name. I have also no doubt that justice will prevail in the end."
This letter I sent to the Prime Minister, and copies to three other persons: the Deputy Prime Minister, the Attorney-General, and the Chief Secretary to the Government.
I made sure the letters were delivered and confirmed that the letters were received, at the following times on Sunday, 29 May:
3.40 p.m. Datuk Seri Dr. Mahathir Mohamad, Prime Minister.
3.55 p.m. Tan Sri Sallehuddin Mohammed, Chief Secretary to the Government.
4.05 p.m. Encik Abdul Ghafar Baba, Deputy Prime Minister.
4.40 p.m. Tan Sri Abu Talib Othman, Attorney-General.
These details were recorded in a dispatch book by my secretary, Mr Unnithan who went round personally, together with my driver, to deliver the letters.
When I was satisfied that the letters were delivered safely to all concerned, I called a press conference at my residence in Jalan Conlay at 6.00 p.m.
Let me stress very strongly here that my letters were most assuredly received by the addressees before I called the Press conference. I was to be accused later of distributing copies of the letter even before the Prime Minister received it. That was a false statement.
The purpose of the press conference was two-fold: to dispel rumours about my position and to prevent my offer of early retirement being acted upon. An official announcement to the effect that I had been retired in the national interest to take up a position in Jeddah, would have put an end to any chance of clearing my name. I might have secured a highly paid job and travelled a great deal, but I would have been in the same boat as the poor Flying Dutchman of the legend - endlessly on the move, without any aim or destination and without any peace of mind.
I gave the press copies of the letter addressed to the Prime Minister together with the following written statement:
"There have been rumours regarding my position as Lord President, Supreme Court, Malaysia. I have not made any statement so far regarding the rumour that I have been suspended from office. I think it is now appropriate that I should make the position clear.
"I have today written to the Prime Minister concerning the matter. The letter is self-explanatory. I do not wish to add anything to it beyond repeating that the allegations that I have indicated partiality in the UMNO cases is totally untrue. In fact soon after I returned from Mekkah on 17 May I had given instructions that the appeal involving the eleven UMNO members be heard by a coram of nine Supreme Court judges."
On the following morning I was startled to read in The Star a statement by the Prime Minister that he did not know whether I had been suspended or not!
If the report was accurate I cannot explain why he made such a statement
The Star report of Monday, 30 May, was very long. The first part of it read:
“Lord President, Tun Mohamed Salleh Abas has resigned, Prime Minister Datuk Seri Dr. Mahathir Mohamad said tonight [Sunday, 29 May].
"However, earlier this evening, Tun Salleh said [to the press] he was withdrawing his application for early retirement and was prepared to face any Tribunal that might be set up to remove him from office ....
"He wrote a letter to the Prime Minister, dated yesterday [Saturday, 28 May], applying for early retirement.
"This evening he issued a two-paragraph Press statement in response to rumours that he had been suspended from office. He also gave reporters a copy of a letter to the Prime Minister, dated today, withdrawing his application for retirement."
Then came a strangely surreal exchange between the news reporters and the Prime Minister. The Star report went on:
"A few hours later, at the [Party] Gerakan 20th anniversary dinner, reporters asked Dr. Mahathir about the rumours that Tun Salleh had been suspended.
"The Prime Minister replied, "It is not true .... he has resigned. . . I have received the letter from Tun Salleh."'
Resigned! Surely there was a mistake! Mine was not a letter of resignation at all. The Star must have heard him wrong. But the next few lines confirmed that he was not being misquoted.
"Dr. Mahathir declined to say when he received the letter. . .
Which letter was this? My offer of early retirement? My letter withdrawing the offer? Why would he decline to say when he received it?
'Asked why Tun Salleh had made the sudden decision to resign, Dr. Mahathir said, 'He said he wants to resign ... ask him, he has made a statement."'
It was hard to believe what I was reading. What statement was he talking about? My last statement simply said that I had written to the Prime Minister and copies of that letter were now in the hands of the press. The letter said I was withdrawing my early retirement offer.
Why did the Prime Minister say that I said I wanted to resign? In fact at no point in the whole affair did I ever volunteer to resign. So which letter was he talking about?
"When a reporter pointed out that Tun Salleh was withdrawing his letter, Dr. Mahathir said, 'I don't know ... he said he wants to resign...."'
There it was again. Reading the paper it was very difficult to accept the evidence of my eyes. Why did the Prime Minister deny knowledge of my letter sent to him on that Sunday afternoon? He had received that letter at 3.40 p.m. and met the reporters, in the words of The Star, "a few hours later." Yet he repeatedly denied it, and further claimed he did not know why I wanted to "resign" in the first place!
Even if he did not read my letter at 3.40 p.m. or 4.00 p.m. - and that is hard to believe! - we must observe that at about 8.00 p.m. he was telling reporters, "[Tun Salleh] said he wants to resign ... ask him, he has made a statement."
Are we to believe that at 8.00 p.m. the Prime Minister, who knew about my press statement of 6.00 p.m., did not know the contents of the letter issued with that statement? Was he going entirely by rumours? Where were his aides in all that time?
And then to claim that he did not know I had been suspended!
Had the Honourable the Prime Minister really forgotten that he had called upon me, in front of two very high ranking officials as witnesses, on the command of His Majesty The Yang Di-Pertuan Agong no less, to resign or retire immediately or, alternatively, face a Judicial Tribunal which would act to remove me from office?
And had he forgotten that he himself had subsequently signed the suspension letter?
Our newspapers do not have the greatest reputation in the world for investigative or in-depth reporting, but could The Star have really made such a disastrous mistake in straightforward reporting? It only called for the most elementary reporting skill, recording the views of one man on one particular event.
Would the editors of the The Star, after their recent ISA-enforced sojourn in the journalistic wilderness, have had the temerity to publish the Prime Minister's words unless they were absolutely certain the reporters heard him correctly. So I had to assume at the time that the report was accurate.
Subsequently the Prime Minister did not deny either the words or the overall spirit of the report on the events of Sunday 29 May, which appeared in the The Star on Monday 30 May.
Now this might be the place to reproduce the letter from His Majesty The Yang Di-Pertuan Agong addressed to the Prime Minister on 25 May 1988, and which he obviously referred to when he spoke to me, and wrote to me, on that fateful 27 May. (We may keep in mind the fact that it was on 23 May that I had decided to fix the "UMNO 11" case for 13 June with a coram of 9 judges).
"We have considered the representations made by you through your letter dated 25 May, 1988 concerning the position of YAA Tun Dato' Haji Mohd. Salleh bin Abas. We agree that there be established a Tribunal to investigate into, and obtain its report regarding the ability of YAA Tun Dato' Haji Mohd. Salleh bin Abas to discharge his functions justly and properly under Article 125 (3). Pending this matter being referred to that Tribunal and its Report being obtained under Article 125 (3), YAA Tun Dato' Haji Mohd. Salleh bin Abas shall be suspended from office with effect from 26 May, 1988, under Article 125 (5)." [Annexure 5, Volume 2, Report of the Tribunal.]
That was the official letter from the National Palace, under the hand of His Majesty the King, to the Prime Minister. As a result of it, as of 26 May I stood suspended from office.
Yet 3 full days later, on 29 May, the Honourable the Prime Minister of Malaysia, was telling the nation, according to the national press, that he did not know about my suspension!
It was a very curious press report indeed.
The reports in the papers were all long and elaborate. But "Truth," as the Bengali Nobel laureate, Rabindranath Tagore put it, "looks tawdry when she is overdressed."
I might digress here and say that no one could accuse The Star of the day of being biased in my favour, or of being antagonistic towards the Prime Minister. It is true the paper was no longer the hard-hitting and forthright popular tabloid it was before the 27 October 'Lalang' affair when it was shut down, but it was still very far ahead, in some points, of its ageing and very wealthy rival, The New Straits Times.
That old newspaper, which people characterise politely as conservative, and some others describe as a quite vapid and unabashedly establishment-subservient, (or worse), launched what I can only call a scurrilous attack on me in its editorial on the following day, 31 May.
The paper said, in effect, that I was unfit to be a judge because I had changed my mind! It seemed to the paper that I was not consistent!
The language used was harsh in the extreme. For the editorial said, among other things, "We cannot have a judge shuffling his feet on the bench." It was a strange editorial, notable for its sanctimoniousness and its muddled thinking, and I imagine it was meant, among other things, to provoke me into saying or doing something hasty. But sometimes judges have to ignore their more asinine critics. The perspicacity and erudition of the editorial writer was well put on display when he declared in a tone that suggested high seriousness:
"After all this is no kangaroo court. The Tribunal will be made up of his fellow judges."
Do "fellow judges" instantly guarantee the character of a court, "kangaroo" or otherwise?
The remarkable thing about that hasty and pompous observation was that virtually every critic, both at home and abroad, was to call the Tribunal exactly that: a kangaroo court. It was a shallow job of journalism.
How does having sudden second thoughts or revising an opinion quickly constitute unfitness to be a judge? Or hold any other office? "There are those who would misteach us," wrote Mark Twain, in an essay on Consistency, "that to stick in the rut is consistency - and a virtue, and that to climb out of the rut is inconsistency - and a vice." I had certainly fallen into a hole, but I was most assuredly not going to stay there to develop that hole into a rut.
Now, apart from being shallow, The New Straits Times contributed shamelessly to the notion that my first letter to the Prime Minister was a letter of resignation. The author of that editorial, it first appeared, could not have studied my letter carefully. My words were plain enough: "I withdraw my application for early retirement." But a close examination of the editorial showed that cynicism and sycophancy may indeed dance together.
1 The third paragraph tripped lightly over the fact of my announced intention to go on "early retirement" and in the last paragraph it blithely referred to my alleged decision not to "resign" with what I can only describe as a studied carelessness - or was it only callousness?
The New Straits Times article covering the same interview as The Star was even more vagrant and wanton than the editorial. It was short enough to be reproduced in full without wasting too much space. In two dozen column lines the paper packed more absurdities than it usually does in a dozen columns:
"Datuk Seri Dr. Mahathir Mohamad said tonight he had received the resignation letter of Lord President Tun Mohamed Salleh Abas.
"He did not say when he received the letter.
"Speaking to reporters after a dinner in conjunction with the 20th anniversary of Parti Gerakan, he said he did not know why Tun Salleh was resigning.
"The next most senior judge would be appointed to the post as soon as Tun Salleh resigned, said the Prime Minister.
"Asked when the Tribunal which Tun Salleh said was to be appointed to remove him from office would be established, the Prime Minister said it had not been set up."
This piece of writing, I think, should become a set piece for journalism students. It has the hallmarks of the classics:
* In the first paragraph the Prime Minister had received my "resignation" letter.
* In the third, it seems I gave no reason in my letter for resigning, for the Prime Minister "did not know" why I was resigning. (Obviously the Lord President wrote simply: "Dear Prime Minister, I resign.")
* In the fourth paragraph it seems I did not give a resignation date, because the Prime Minister could only appoint a successor as soon as I "resigned."
* In the same paragraph it was made clear that I had not exactly quit, because I was hanging on - and my successor would be appointed as soon as I resigned. Meanwhile, of course, I had already resigned ....
* In the final paragraph, there was going to be a Tribunal to remove me anyway, even though I had already resigned. (The Prime Minister said he had received my letter of resignation).
It was one of those pieces of virtuoso journalism of the kind which used to make papers like Pravda and Izvetsia justly hilarious. The New Straits Times over the years has seldom done better. Indeed it will be very difficult for any newspaper anywhere to top that piece of news processing - or tailoring.
Can such a piece of confusing nonsense be called reporting of any kind? What was it? An attempt at total cynicism or only a disingenuous and clumsy display of sycophancy? Whatever it was, a casual reader would have got the impression from that chaotic slab of verbiage that I had indeed quit my post on 29 May. The "story" served only as disinformation of a foolish kind.
Now, if I may elucidate: notwithstanding the smoke-screen which was being thrown over my offer to retire early, my letter could never be construed as an offer to resign. For under clause (2), Article 125 of the Constitution, my resignation as a judge required me to write, under my own hand, addressing myself to His Majesty The King, not to the Prime Minister. That short letter which I wrote with an offer of early retirement was addressed to the Prime Minister. It was nothing more than an application for long leave at the end of which I would retire.
Indeed my letter was plainly titled Cuti dan Persaraan and underlined. The words meant "Leave and Retirement," and no more. And once the application for leave was withdrawn it was clear that I was no longer on leave, and matters reverted to the status quo ante, and I remained suspended from office.
There was no question of any "resignation". Indeed there was never, at any stage in the entire affair, a question of my even offering to resign
And yet the Prime Minister told the Press again and again that I had resigned, that I had wanted to resign.
Why was he at such pains to do that?
On the next day, 31 May, The Star carried another fascinating item. Reporters who asked the Chief Justice who would be appointed Acting Lord President were told that he believed any of the Supreme Court judges could be made Acting Lord President. The report went on to say:
"'Who am I to know who is going to be appointed?"' he said, adding that he had not got anything official on the matter....
"On the possible appointment of a Tribunal to investigate the alleged 'misbehaviour' of Lord President Tun Mohamed Salleh Abas and the procedure for appointing the Acting Lord President, Tan Sri Hamid said:
"'This has never happened before ... the letter of appointment (of the Acting Lord President) may come from the Prime Minister, but I do not know what is the proper procedure."'
It was a rather curious shift in position. Only three days earlier he had declined to lead a delegation to see The Yang Di-Pertuan Agong about revoking my suspension order because of his certainty that he would head the Tribunal. Now, suddenly, he was being very circumspect, and strangely deferential, if not quite coy. He seemed uncertain about what was going to happen.
The public, no doubt, got the impression that he was completely unaware of what was going on in the corridors of power. But how did the man, who did not know on 30 May, as to who was going to be Acting Lord President instruct the Chief Registrar on 27 May to cancel the sitting of the Supreme Court on the "UMNO 11" case? Was he, as Chief Justice, simply overriding on 27 May, an instruction made by the Lord President? If he had not taken over yet, why did he act in the matter at all?
And how did the man, who did not know on 30 May, who was going to be Acting Lord President, become the Acting Lord President on the very next day, 31 May, even as the public at large was reading in The Star his own words: "Who am I to know who is going to be appointed?"
Was he perhaps offered the appointment after he had spoken to the press? Was there no time to call the press and make a correction? Could the appointment not have been delayed for a day, and the press informed first of his sudden and unexpected elevation to the highest judicial post in the land?
Or were the "minions of the mass media" not important in this whole affair? Was the appointment so urgently needed to help prosecute swiftly the matter at hand?
Or was it simply a matter of the newspaper which was being elliptic and cryptic in its 30 May report?
But, as we shall see, truth exists independent of men, manners and morals. Lies, on the other hand, have to be invented.
On the same day, 30 May, the main news was that the Prime Minister's Department would issue a statement on the next day, 31 May, to clarify my position exactly. Upon being asked, I, too, told the press that I would issue a statement in view of all the rumours which were circulating about the affair. There were still people who believed I had been "sacked."
The full statement from the Prime Minister's Department, when it came the following day, was highly revealing in view of the facts I have adumbrated so far. The Statement read:
"It is regretted that Tun Mohamed Salleh Abas should make public what is obviously an official letter dated (Sunday) 29 May, 1988 addressed to the Honourable Prime Minister, which had then not even reached the Prime Minister much less acknowledged by him. In view of this the Prime Minister is forced to make public the circumstances surrounding the position of Tun Salleh Abas.
"Tun Salleh met the Prime Minister at 11 a.m. on (Friday) 27 May 1988 at the Prime Minister's office. Present at the meeting were the Deputy Prime Minister, Encik Abdul Ghafar Baba and the Chief Secretary to the Government, Tan Sri Sallehuddin Mohammed.
"The Prime Minister explained to Tun Salleh that initially he (the Prime Minister) was requested by His Majesty The Yang Di- Pertuan Agong that Tun Salleh be replaced as Lord President because of Tun Salleh's letter to the Yang Di-Pertuan Agong to which His Majesty took exception.
"As constitutionally this was not possible, the Prime Minister had advised the Yang Di-Pertuan Agong to set up a Tribunal to advise His Majesty after the Tribunal had held its hearing.
"Tun Salleh requested to know the grounds. The Prime Minister said it was not possible for him to enumerate the grounds except that it was due to the letter sent by Tun Salleh to the Yang di-Pertuan Agong. There was positively no mention of UMNO by the Prime Minister, nor was there any mention of it in Tun Salleh's letter. The assumptions stated by Tun Salleh to the Press and his publicised letter that the charges against him relate to his bias against UMNO were his assumptions and no more.
"After a few words to the effect that he was willing to face the Tribunal and would not resign, Tun Salleh took leave.
"On the following day, (Saturday) 28 May, the Prime Minister was informed by the Attorney-General that Tun Salleh wished to retire early. The Prime Minister expressed his willingness to accept this change of heart. A letter was subsequently received by the Prime Minister from Tun Salleh stating that he wished to retire early and to take all his available leave of 96 days. The Prime Minister replied that he accepted the request for early retirement and agreed to grant the leave requested.
"Tun Salleh's request was made voluntarily one day after he was informed of the proposal to set up the tribunal. No pressure was applied on Tun Salleh to resign or retire. His decision was entirely his own.. He has now changed his mind. That is entirely his wish. Ordinarily, the Government would not be bound by later decisions after it had already accepted a request to retire early.
"Tun Salleh's statement carries political innuendoes and as he has requested that he should submit to examination by a Tribunal, the Tribunal will be set up to hear his case. In the meantime Tun Salleh is suspended from his post as Lord President and the matter of his leave does not arise."
Is it possible to believe that the Honourable the Prime Minister was not shown this "Official Statement" before it was given to the world? For to say that my letter had then not even reached the Prime Minister is a grave untruth.
My letter, without a doubt, reached him at 3.40 p.m. on that Sunday afternoon, more than four hours before the Gerakan Party anniversary dinner.
That the Prime Minister did not personally acknowledge receipt of the letter was a somewhat precious argument at this stage because I had ensured that he had actually received it. Acknowledgements are meant to give assurances to the sender, not the receiver. And I was perfectly satisfied. The letter was not sent by post. It was hand-delivered. No formal acknowledgement was necessary, except for reasons of politeness, and that, I may say plainly, was not a critical matter in the immediate environment inhabited by the main players in this drama.
My reason for making sure that the Prime Minister did indeed receive it on that Sunday afternoon was important enough. I simply did not want to allow that Sunday to pass without making absolutely certain that some precipitate action on my "early retirement letter" did not occur early on Monday morning. I had already seen Olympian feats of blistering speed in official actions lately to take such risks. I had to deactivate the closing mechanism of the trap on the Sunday itself.
As for being forced to make public the circumstances surrounding my case, I find it hard to believe that the idea was meant as written.
Was it really being suggested that the whole affair was to be kept a secret? That I would be disposed of without any publicity, and the whole of it kept under wraps, perhaps under the cloak of the Official Secrets Act? Of course that was utter nonsense. The circumstances had to be made public.
The statement therefore remains a silly puzzle. What did it mean then? What does it mean today?
Now, for the author of the Prime Minister Department statement to say "There was positively no mention of UMNO by the Prime Minister, nor was there any mention of it in Tun Salleh's letter" is, of course, to call me a liar.
The statement proceeded to underscore the point by saying, "The assumptions stated by Tun Salleh to the Press and his publicised letter that the charges against him relate to his bias against UMNO were his assumptions and no more." Assumptions? The circumspection in the use of language does not detract from the fact that I was now being characterised as a mendacious person. The Asian Wall Street Journal, which of course has a wide international readership, could hardly miss the point, and told its readers, simply, and reasonably enough:
"Two days after Tun Salleh's remarks [on bias in UMNO cases], a statement from Dr. Mahathir's department effectively called the Lord President a liar."
The author or authors of the Statement made no effort to correct the Journal or chastise it for being inaccurate or mischievous. I was, after all, though I stood suspended from office, still the substantive Lord President. The paper was telling the world that the Prime Minister was calling me, the country's most senior judge, a liar, and his department had nothing to say about it. I then had to assume that the paper's interpretation was officially seen as faultless, or at the very least, not completely reprehensible.
But which letter was the Prime Minister's Department statement referring to when it said "There was positively no mention of UMNO by the Prime Minister, nor was there any mention of it in Tun Salleh's letter?" My "early retirement letter"? Or was it my letter withdrawing that early offer? Or was it my letter to His Majesty the Yang Di-Pertuan Agong? There were, after all, only these three letters.
My letter to The Yang Di-Pertuan Agong certainly did not because the Prime Minister's accusation on my "UMNO bias" came fully two months later. Also, my "early retirement" letter was not a contentious communication, merely an application for leave with a view to retirement. But my third letter most certainly did. It was in fact a strongly worded denial of the baseless allegation by the Prime Minister.
Now the official statement simply referred to my "letter" in which "there was no mention of it", and so left in the public mind ample space for all kinds of speculation. The only thing to be said is that the suggestion was nonsensical and ultimately mischievous, and could only confuse the public.
But the level of official integrity which obtained in dealing with the career of a very senior public official such as the Lord President is best illustrated in paragraph 6 and part of paragraph 7:
"The following day, (Saturday) 28 May, the Prime Minister was informed by the Attorney-General that Tun Salleh wished to retire early. The Prime Minister expressed his willingness to accept this change of heart. A letter was subsequently received by the Prime Minister from Tun Salleh stating that he wished to retire early and to take his available leave of 96 days. The Prime Minister replied that he accepted the request for early retirement and agreed to grant the leave requested.
"Tun Salleh's request was made voluntarily one day after he was informed of the proposal to set up the tribunal. No pressure was applied on Tun Salleh to resign or retire. His decision was entirely his own."
Did the Attorney-General inform the Prime Minister, I have to ask, at the risk of being accused of breaching an alleged confidentiality, of what transpired in my Chambers on the morning of Saturday, 28 May?
What had happened to the deep sorrow and sympathy demonstrated by the Attorney-General and the detailed story of His Majesty The Yang Di-Pertuan Agong's anger with me, exhibited on that memorable Hari Raya Puasa morning?
And what of the Attorney-General's own tirade against the judges upon whom he declared I could not "depend"?
Or is all this, too, "assumption" on my part "and no more", like my assumption about the UMNO cases?
And what happened to his repeated urging that it would be best if I retired quietly and without any fuss to avoid embarrassment? And receive pension benefits which were not yet even due to me? And what of the job in the International Islamic Development Bank in Jeddah at a salary I could not even dream of?
And after all that morning's sorrowing and drama, to say that no pressure was put upon me was to do violence to language itself, and reduce that powerful word [defined as the exertion of continuous force] to something less than it means.
There was great pressure put upon me, let no one doubt that, and though it was indeed pressure of a subtle and cunning kind, it was exertion of tremendous force for all that.
I must now admit that in the state of distress I was in, and having spent a sleepless night, I succumbed. Like most people I began to think of the fate of my family.
After all how could I fight two giants: His Majesty The Yang di-Pertuan Agong and the Right Honourable the Prime Minister who wield great powers and can mobilise any force? I could certainly not win but would, most likely, end in disgrace. So descending to the level of ordinary mortals, it seemed best to accept the offer put forward by the Attorney-General.
But now, when I changed my mind, not only were the authorities angered but !'he New Straits Times also joined the shrill chorus of recriminations.
And now let me ask, if indeed there was no pressure on me to resign or retire, why all this fuss, all this agitation and bluster? If there was no pressure why all that hand-wringing and head-shaking? There was no pressure, so the man decided not to quit his post - was that not the situation? So what was the problem? People do change their minds. Why the official hysteria, then, and the managed media madness?
I most certainly failed to show the strength which a man in my position ought to have shown. I do not deny it. The fault was mine, certainly, that I did not quickly and politely show the Attorney-General my door that Saturday morning.
But who can doubt that I was under strain? That I was put under pressure, under severe psychological stress.
This is by no means a defence or a justification of my admitted, if momentary, weakness. I shall probably regret that lapse in moral fortitude under stress, for the rest of my days.
But then I would have proved a weak man indeed if after I had realised the enormity of my mistake I did not strive with all my heart and mind to correct it.
In other words I was pressured to resign when I was at my most vulnerable, but, praise be to God in his infinite compassion! by the next morning I had recovered my strength and resolve. And I took action.
On 4 July the Attorney-General told the High Court in a closely connected matter - which I shall touch upon again later in my narrative that he came to see me that Saturday morning because I had indicated that I wanted to see him. He declared:
"I went to see him (in his Chambers) out of respect. This is a fact. As to what transpired, I do not propose to enter into any controversy because my opinion is not relevant to this application. Furthermore, the conversation in his chambers was made on a personal basis and in strict confidence."
The Attorney-General was at great pains that day to emphasise that he did not come of his own accord. Nor did he care to mention the third party who played the intermediary in the affair. But he went further, he went too far, when according to The Star he asserted: "The move came from him (Tun Salleh.)"
It was something of a fantasy. How does he explain his visit out of respect" for me and yet say I had to invite him to see me when I was in the middle of a crisis? Was it a courtesy call which required an invitation? Or was there the insinuation that I called him to seek his help, and that he condescended to come only out of respect for me? Whatever his meaning of "respect" may be, I certainly did not go seeking his help. He came to me as a result of talking with a third party.
And what kind of "respect" is it to go on insisting that the "move" originated from me? Or did that "respect" expire after that morning’s meeting?
Then there is the question of confidentiality.
Confidentiality can be an important thing but in the circumstances of a court of law it is not a magic word. It is not a talisman to be waved as protection against all corners. There are those who invoke concepts like ::confidentiality", "official secrecy", "public interest", "national interest", security of the State" and "subjudice" to try and prevent the court from getting at the truth. It will not do. As Justice Harun Hashim, remarked in granting a habeas corpus application, if the revelation of a secret can prove dangerous to the public welfare or security, "whisper it in my ear" without telling the world.
A judge cannot act on auctoritate sua or what I have called the ipse dixit variety of evidence. But that was what the Attorney-General was offering. His authority was his own say so, and then it was further violated by a cloak of confidentiality.
I should also say here that his notion of what confidentiality meant became clear about ten months after this whole affair began. His acknowledged input in a letter written by Tan Sri Abdul Hamid to the International Commission of Jurists on 20 March, 1989 (Appendix XIV) defending himself against that body's criticism of the Tribunal affair, was revealing.
The Attorney-General obviously did not think that the confidentiality of that day in May, 1988, mattered any longer. What he would not tell the open Court in Kuala Lumpur in July 1988 he was willing to reveal to the International Commission of Jurists in Geneva in March 1989.- Among other things he said there was a third party - a "certain Supreme Court Judge" - involved in our discussions in my Chambers; and then he went on about an "offer to assist him to obtain pension benefits and a new job was made spontaneously out of a feeling of compassion in response to the plea made by Tun Salleh in relation to his fatherless grandchildren."
The revelation, or rather his version of what took place at the meeting, of course, puts an end to any pretence that it was confidential. (As for the character and quality of his compassion, that was revealed before the Tribunal rather clearly).
I might record here that the hour with the Attorney-General that Saturday morning was not much less painful than the minutes with the Prime Minister just over 24 hours earlier, even if the Attorney-General behaved, if I may elevate that sad and sordid episode to a more tragic level, more like Othello's lago than Julius Caesar's Brutus. For as Shakespeare repeats with sublime understanding, "For Brutus is an honourable man."
The final insult to the intelligence came in the last paragraph of the Prime Minister Department Statement, with the words, "as he has requested that he should submit to examination by a Tribunal, the Tribunal will be set up to hear his case."
Now, that was political acrobatics indeed!
And of a spectacular order!
Now why was the world being kneaded into believing that it was I who actually initiated and requested a Tribunal and that no such notion resided in the Executive's head? Particularly to the untrained minds of people in the villages - of which this country has a large number - repetition in the sycophantic press would create the impression that I was actively looking for a forum for a public exhibition.
Was the Tribunal, then, to be set up only because "he", the Lord President, "has requested" it? Was that the intent of that sentence in the Statement?
It is true that when I decided to withdraw my resignation letter I did declare that I would face a Tribunal to clear my name. But I did not seek a Tribunal in the first place with the "view of removing" me.
Did the Prime Minister himself not spell it out on the morning of 27 May? In fact he said it to me before two of his own witnesses, or was that only another assumption of mine?
Then why was it now so crudely insinuated that it was I who had actively sought the Tribunal in the first place?
The line I am pursuing here may sound unnecessary, even petty, if not altogether paranoid. But the point worth making is that it was charged later that I sought to politicise the whole issue. The notion of my politicising the affair is nothing if not fatuous.
The efforts at politicising of the problem were begun, and not by me, long before I was accused of anything, by the Prime Minister. Indeed it had begun in Parliament itself. Now by suggesting mischievously that I wanted the Tribunal, did the Statement itself not become a political instrument designed for the edification of the public gallery? And feeding that enormous "popular wisdom" upon which the politics of power must itself for ever feed? The Prime Minister intentions, then, were not only clear but alas, all too clearly political.
I, as head of the Judiciary, was informed by the head of the Executive - not by The Yang Di-Pertuan Agong who appointed me - that I stood suspended from my post by the command of The Yang Di-Pertuan Agong. I was not even informed until 18 days later (on 14 June) of the actual charges that were being brought against me.
And the letter of suspension was not under the hand of The Yang Di-Pertuan Agong, only to whom a judge may address his own intention to resign his post.
And we may take note again: the most immediate consequence of my sudden suspension was political: demonstrably the most political legal case in our history, the "UMNO 11" case, fixed for hearing on 13 June, was peremptorily taken out of the calendar, without my knowledge. This critical move took place, with a mind-bending cynicism, within the same hour of my receiving the letter and being incapacitated as Lord President!
So the argument about my politicising the whole issue was not merely cynical but absurd.
The 3 -point plan, then, was simple. The Lord President shall resign, or retire, or be removed.
If I did not resign at the first broad hint, I would be persuaded to retire. If I could not be persuaded to retire, I would be, if necessary, be forcibly removed.
Force? Well, force, too, is a word with many dimensions and subtleties of meaning. If the force of persuasion was not effective, there was always the force of the law. And the force of law is not always necessarily lawful or legitimate - as we well know - when there are no independent judges.
As we were to see, all three options would be resorted to, but willy-nilly, I had to go.
But the whole truth? Ah, that was another matter.
According to the scenario which was slowly revealing itself, the whole truth must not be revealed, at any cost. For who in the world would believe, on the face of the first and only charge against me on 27 May, that a judge would be hounded out of office because he protested to his Monarch about the public insults directed against the entire Judiciary by the head of the Executive? Because shorn of the semantics, that was all it was.
So, speed was essential, and more important, secrecy.
And this was confirmed, when, for the most contrary of reasons imaginable, a Tribunal - the first of its kind ever constituted in Malaysia was hastily cobbled together, and it was rapidly decided to hold its sessions in secret.
And who made this decision for a secret session? Why, the Tribunal itself! It was not just a body functioning as Judge, Jury and Executioner all rolled into one but went beyond the traditional jest - and performed the function of lawmaker as well. It made its own rules!
Despite the local mass media's hyperactive ventilation of the official view of the Tribunal's righteousness and its rectitudes, before, during and after its sitting, no one with any intelligence and integrity was deceived. True, the educated public was helpless, but, not unlike other societies in which people are politically stranded because of an emaciated opposition and an emasculated media, the intellectual elites were not misled. Secrecy in this matter was repugnant to the entire civilised world and that was a recorded fact.
This is the place to refer to the United Nations Basic Principles of the Independence of the Judiciary. The 7th UN Congress on the Prevention of Crime and the Treatment of Offenders, at its meeting in Milan, Italy, from '6 August to 6 September, 1985 adopted by consensus the Basic Principles of the Independence of the Judiciary. These principles were "endorsed" by the UN General Assembly (A/Res/ 40/32, 29 November 1985) which invited Governments "to respect them and to take them into account within the framework of their national legislation and practice" (A/Res/40/146, 13 December 1985). Paragraph 17, under the heading Discipline, suspension and removal, reads as follows:
"A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential unless otherwise requested by the judge."
Two years later the ICJ sponsored seminar on "The Independence of Judges and Lawyers in South Asia" held in Kathmandu, Nepal, (1 - 5 September, 1987) recommended that in carrying the exercise to remove a "superior court judge", "all proceedings ... should be held in camera unless the concerned judge otherwise requests".
The ICJ was thus making the same point as the IN, but as recently as 8 months before my suspension. 'Re rule was very simple: proceedings to remove judges shall be secret unless the judge concerned wants them to be open. In fact while the UN wanted only the initial stage of the proceedings to be behind closed doors, the ICJ wanted even more, recommending that all proceedings shall be in camera unless the judge concerned wanted it otherwise.
It was obvious that the UN and the ICJ only wanted the proceedings to be secret to protect the good name of the judge, so that if the first inquiries proved the allegation to be false, the whole matter could be quietly dropped. There was nothing sinister in that. But if the judge wanted the whole proceedings to be made public, that was what he was to have!
So it might be said that judges everywhere were familiar with the sentiments of their colleagues all over the world in this matter.
It was not a sentiment created or espoused (if I may forestall the usual asinine reaction to this thought) by any Western cultural predilection. The meetings were sponsored by the United Nations and the ICJ. The ICJ conference delegates on that particular occasion happened to be all Asians - from Bangladesh, India, Nepal, Pakistan and Sri Lanka, with traditions of Hindu, Buddhist and Islamic cultures.
It is equally obvious that the Executive branches of the Governments of the world - which of course choose all the sitting members of the United Nations - were fully familiar with these principles, "endorsed" by the General Assembly.
Now, as for the Malaysian Government, it is an avowed champion of the UN and its Principles. It celebrated on 31 October, 1988, its election to membership of the UN Security Council by declaring a nation-wide public holiday for schools. Ministers of the Government made long speeches remarking on the glory the election had brought to the nation. We were, in fact, merely taking our turn in one of the rotating seats in the Council, but the Government decided to display a special public euphoria over the matter.
Malaysian troops were subsequently dispatched to defend democracy and keep the peace in Iraq and Namibia in the name of the UN. The United Nations had become very important to us.
However, when it came to justice and democracy at home, the United Nations turned out to be quite irrelevant. The Basic Principles somehow got lost in the commotion of removing me.
The Judicial Tribunal's procedure to deal with me was to be a secret trial despite the fact that I asked for an open hearing. To the Prime Minister himself, it seems, that sounded like dictating terms! Ale ICJ's appeal at that juncture, based on the same United Nations Principles was treated shoddily, not even being publicly acknowledged or responded to.
And so those people in the country who could do nothing about the whole affair at least went about making sure that the world at large got to know the truth about the Tribunal. After all, since the issue was one which the UN was deeply concerned about, it was hardly an internal matter for the country.
An eminent British lawyer, Queen's Counsel, Mr. Geoffrey Robertson, who was in Kuala Lumpur during the period, learnt enough to put it very plainly when he wrote, on his return home from Malaysia, in the London Observer on 28 August:
"The Tribunal sat in secret . . . the Government appointed several lesser judges as its members. Its chairman was Mahathir's friend, Tan Sri Abdul Hamid, who had a direct personal interest in the outcome, as he was the Lord President's deputy and likely successor."
Mr. Robertson’s article was reproduced and circulated widely in Malaysia, and printed in such independent journals (at the risk of losing their licenses) as Aliran Monthly and the Democratic Action Party's official organ, The Rocket, so that the reading public at least was not entirely unaware of what the world thought of the Tribunal and its work.
Malaysians who have complained at forums outside this country about Executive abuses and excesses have themselves been mercilessly pilloried not only in the worst of the local media but even in Parliament.
Chauvinistic posturing is apolitical device as old as Jeremiah himself, and as common as wartime editorials in a desperate search of cannon-fodder patriots. The device is used to exploit fear and every other human weakness in order to garner power. We see a great deal of it in the world, and it is not unknown in Malaysia.
So those people who informed the world of the Tribunal and its uncouth progress have also been condemned by those who claim to be the standard bearers of "development" and "progress", and ergo, of patriotism, in this country. But the truth is a hardy creature. It has no respect for flags or the fantasies of fanatics. And patriotism is no excuse for injustice. The word spread.
The Judiciary and its fate became an major issue in a by-election in Johor Bahru on 25 August, 1988. There the Prime Minister's UMNO Baru was delivered the most crushing defeat in Malaysian by-election history.
It seemed that despite the muzzled media and despite the Parliamentary Opposition's most articulate leaders being in jail without being tried, even the ordinary man in the village had become more than faintly aware of what was happening to the system of law which was his protection against injustice.
And he protested.
It was a coincidence that my 59th birthday fell on 25 August, and the independent candidate, Datuk Shahrir Samad who won the election, called me as soon as the results came in, and offered his victory to me as a birthday gift! I don't celebrate birthdays - it is not a Malay custom and I grew up in a village - but Datuk Samad's gesture proved one thing. My removal was a major political issue, and I had nothing to do with it. And his gesture showed that it continued to be an issue even after I was removed from office on 8 August, 1988.
But I am running ahead of events. It is enough to say now that an attempt was made to weave a heavy shroud of secrecy around the Tribunal affair, but the fabric of this hastily constructed burial cloth for the truth, proved defective, and the light shone through easily to reveal that the body politic no longer showed any sign of being in the pristine condition it might have been.