May Day For Justice
by Tun Mohamed Salleh Abas, Former Lord President, Supreme Court of Malaysia, with K Das
A weak man is just by accident. A strong but non-violent man is unjust by accident. -- Mohandas Karamchand Gandhi. Non-Violence In Peace And War, 1948.
It was hardly surprising that the Bar Council immediately called for an emergency meeting of its Executive Committee and declared that it was "deeply shocked" by the Government's decision to suspend me from office.
In the atmosphere of new uneasiness created by this not too subtle assault on the Constitution, the Bar Council bravely tried once again to give some elementary lessons in the law and the Constitution to those who wielded power. Its statement was reported in The Star, in part, as follows:
"'From his [the Prime Minister's] attacks [on the Judiciary], it appears that he seriously misconceives the doctrine of the separation of powers.
"'It is emphatically the function of the Judiciary to construe the laws passed by Parliament, determine their meaning, and apply them to the facts before them.
"'It is not for the Executive to tell the judges how to construe the laws.'
"The Council said the present development would further affect public confidence in this doctrine, the administration of Justice and the Independence of the Judiciary which is fundamental to law and order in any State, "It noted that the Lord President had in his letter of 28 May asked for a Tribunal under Article 125 (3) of the Constitution to be appointed to inquire into the allegations against him to safeguard the interests of the Judiciary and the nation.
" "Re issues raised are matters of high constitutional principle. It is in the public interest that a Tribunal be appointed under the Constitution to hold an inquiry.
"Moreover, it is a matter of elementary justice before any action is taken against anyone to inform him of the grounds,' the Council said.
"It added that no specific charges under Article 125 (3) had been preferred, and the public should be informed of what the charges were."
The high status and standing of the Bar Council in our Legal and Judicial system, and its being composed of many learned men and women in the law, made little difference. Its voice was ignored in most points. But it may have had the effect of preventing summary justice without benefit even of a Judicial Tribunal. I must confess that at one stage I felt there was the danger of being deprived of even the right to defend myself. The official statement that I was the one who requested the Tribunal may have easily been stood on its head to argue that a Tribunal was unnecessary. After all the Prime Minister did say later that nobody could "dictate" terms to the Government.
On the same day the Attorney-General blandly told the Press that my case would be "fairly and thoroughly investigated". But he could not (or would not?) say whether the Tribunal would be open to the public.
"There is no need for speculation. The Tribunal will deliberate on the issue and make its representation to The Yang Di-Pertuan Agong."
When he was asked when my suspension took effect, he again declared airily that the date did not matter:
"The fact is that he is suspended from functioning as Lord President."
It was rude and disturbing. Clearly the propriety and the constitutionality of my suspension without clear charges or a proper reference was irrelevant to the Attorney-General. And obviously, in his view, the public need have no deeper interest in the matter. People only needed to know the superficial facts and those selected by the Government at that - that I had been stopped in my tracks!
The bulldozer is a heavy modem machine and there is something ridiculous about it with odd projections and protuberations in unexpected places. It is the subject of numerous jokes. The Executive machine is more imposing and has its own ludicrous aspects, but one does not normally think of laughing at it. The press, in the face of the Attorney-General's authoritative assertion, did not laugh, or even press the point
Interestingly, the Attorney-General also told the Press that the issue had nothing to do with the "UMNO 11" appeal which lay before the Supreme Court. The news report did not indicate why he raised that question. It is possible that it was the press which brought up the subject, but he did go on about it.
We were to discover in due course that the "UMNO 11 " connection with the whole affair was to be disclaimed quite airily at every turn by all kinds of important personages.
On the next day, 1 June, the Honourable Attorney-General made another very strange, not to say weird, statement to the Press. The Star reported him as saying:
"Any judge can be appointed [to the Tribunal]. One judge is good as another."
One judge is good as another? Any old judge would do?
Without impugning the integrity or competence of any judge anywhere in the world, the Attorney-General's sudden and generous egalitarian impulse, to put it very mildly, was mind-blowing both in its simple-mindedness and its enormity.
It was like rather saying one doctor was as good as another or that one painter was as good as another, that Dr. Hawley Harvey Crippen, the notorious murderer was as good as Dr. Albert Schwietzer the missionary, or that Grandma Moses was as good as Michelangelo! It made nonsense of the notion of second opinions and of the plain fact that some evaluations bring superior knowledge to an issue than others, and that this is so in every area of human activity and experience. It was like saying that any junior Deputy Public Prosecutor was as good as the Attorney-General.
If, indeed, one judge was as good as another, then the whole exercise which was under way to remove me, was surely a farce, a waste of time. Why bother to distinguish between Sessions Court Judges, High Court Judges and Supreme Court Judges? Why make an issue of the Lord President at all?
The President of the Law Association for Asia And 'Re Pacific (LAWASIA), Encik G.T.S. Sidhu in his letter of appeal to His Majesty The Yang Di-Pertuan Agong wrote on 7 June:
"It has also been noted by LAWASIA that there are no rules of procedure or guidelines as to the appointment of five persons or more to sit on the Tribunal to inquire into the conduct of the Lord President. This has been gathered from the statement by the Attorney-General in the newspapers that any judge could be appointed and that one judge is as good as another.
'It is my humble view that following well-established principles, a person's, in particular a judge's, conduct ought not be inquired by persons who are junior to him.
"It is for this reason that the choice provided for in the appointment of the five members of the Tribunal is very wide and includes serving judges, retired judges and if necessary sitting or retired judges from any part of the Commonwealth."
All these principles and Constitutional provisions being obvious to the point of being trite, why was the Attorney-General, an intelligent man, now being so perverse?
I began to wonder if he was not laying the groundwork to select a Tribunal of judges, not for their competence and high Judicial standing but for other reasons of their "judiciousness."
In any case, LAWASIA’s appeal, too, went unheeded.
Another point made by the Attorney-General on that day, 1 June, should be noted with special care. The Star report read: "Asked about the charges against Tun Salleh, he said:
"'The statement from the PM's Department [on Tuesday, 31 May] was quite clear on this."'
That "statement" referred to the letter I wrote to His Majesty and Their Royal Highnesses. It also pointed out that the letter withdrawing my ,,early retirement" offer contained political innuendoes. There were no other allegation. It denied altogether the UMNO cases factor in my meeting with Dr. Mahathir.
But when formal charges were laid against me, the Attorney- General's press statement began to take on a very queer look. For the Prime Minister’s Department statement was very far indeed from being clear on what the charges against me were going to be. Why the Attorney-General so blatantly and deliberately misled the press at this stage is another mystery in this story.
But there was one suspicion in many minds: perhaps there were no other charges at that point. Were the charges, perhaps, only fabricated much, much later? Was that why the Attorney-General displayed such dreadful ignorance on that day?
So we have to ask, "Was the Attorney-General being completely dishonest on that day in June, or was he only totally ignorant?" I must say it is not easy to believe he really was so uninformed because he was involved in framing all the charges.
Whatever the truth was, we should keep the Attorney-General's statement clearly in mind - "The statement from the PM's Department (on Tuesday, 31 May) was quite clear on this" - when we come to the question of jurisdiction based on who actually laid the complaint against me. From the Attorney-General's press statement it is very clear that it was His Majesty The King who did. That is, as of 1 June, 1988, that was the official position. What happened later? We shall see.
The press meantime was badgering me for my comments, and I gave out a written statement on the next day. Reporters as a race can be extraordinarily industrious when there is a crisis, and now they were both persistent and insistent. There was little enough to be said, but I could not brush aside the tremendous public interest in the affair. My brief statement read:
"Having studied the statement issued by the Prime Minister's Department on Tuesday, 31 May, I do not consider any useful purpose will be served by making any further statement. I stand by what I said in my earlier statement. Any rebuttal necessary will be made before the Tribunal .
"I think, however, that one thing should be said at this stage, and I owe a duty to the public and to myself to make this point clear, that is the question of my suspension. After returning from seeing the Prime Minister on Friday 27 May at about 11.20 a.m., I received a letter from the Prime Minister just before noon, dated 27 May informing me that I stood suspended from the previous day, 26 May, 1988.
"What is most important is that the Tribunal to be appointed must consist of persons of high judicial standing, and I hope that the hearing before the Tribunal will be a public hearing, so that the public who are entitled to know, will know if I am unfit to continue to perform the functions of Lord President, the reasons why this is SO.
"As a matter of fairness and justice, the Tribunal should be appointed as soon as possible so that it may enter into the reference quickly and make its recommendation to DYMM Seri Paduka Baginda Yang Di-Pertuan Agong."
Apart from simply contradicting the Attorney-General's droll view that any judge would do, I also stressed that the hearing must necessarily be a public hearing. This has nothing to do with politics as it was foolishly and mischievously claimed later on. On the other hand it has much to do with the United Nations Basic Principles. The plain fact is that we had a conflict between two separate and independent arms of the Government: the Judiciary and the Executive. It was therefore patently of the utmost public interest. Vital constitutional principles were at stake. The proceedings could not be held secretly. They had to be held before the public, for public interests were primarily involved.
No authority needed to be cited to make my point. The Government and especially the Attorney-General - should have been aware of the Principles of the UN relevant in the matter.
Would a public hearing politicise the whole affair? The question, was ultimately really meaningless, for not only had it already become political, but what is more, if it had not, it would shortly become so. For when two arms of the Government had been forcibly locked into conflict, what could the state of affairs be but political?
Yet in the end, even my call for high-ranking judges and an open hearing were construed to be attempts at politicising the issue and thus evidence of my unsuitability to be a judge!
But as I remarked in my speech of 12 January, the problem of maintaining judicial independence is complicated by the fact that the Judiciary is the weakest of the three branches of the Government. As I noted then, it has no say even in the allocation of funds. Now it was obvious that under direct attack by the Executive, it is completely helpless.
As I also noted in Manila, it is the pre-eminent position held by politicians, because of their power, influence and prestige that gives rise to some problems in the relationship between the Executive and the Judiciary. In their perception, law, as interpreted by judges, is an impediment to economic development, and as the Executive is given its power by the electorate, the law so interpreted militates against the intention of the Executive and thus the will of the people.
This claim, as I pointed out, is nothing more than an empty demand that the Executive and the Legislature should be judges of their own powers. That view, of course, has echoes, and are reminiscent of, the divine power of those ancient kings who demanded absolute obedience to their every command.
We were soon to learn that these same ancient and quite moribund prerogatives were to be invoked again in the name of justice, and in some very surprising quarters.
Given the relative capacities to influence national or public events, there was little a judge could do to demand Justice on his own behalf when confronted by the Executive juggernaut. There were many intellectuals who presented arguments as to why the Judicial Tribunal should be formed out of a body of men of the highest judicial standing and with no direct interest in the outcome of the hearing, and why the hearing must be made public. They were ignored.
It was rather late in the day for me to argue that the Constitution should have been reviewed to strengthen the position of the Judiciary. Those who did propose that it be reviewed had already been roundly condemned by the Prime Minister as dangerous demagogues if not subversives or worse.. One of those attacked was Justice Datuk Harun Hashirn. Nevertheless I do hope that the day will soon come when wisdom prevails once again and the two other powerful arms of Government, the Executive and the Legislative, will correct what is obviously a highly dangerous imbalance.
But for the moment, I was not completely surprised by the way the Prime Minister reacted to my statement two days later. The Star report read, inter alia,
"Tun Salleh.. said ... that he was 'entitled to be tried by judges whose rank and standing are at least equal' to him.
"Commenting on this, Dr. Mahathir said, 'Normally we don't have anyone dictating conditions of this and that ...
"'We will abide by what is the law . . . we adhere strictly to the law."'
"He said that the same went for the decision on whether or not the Tribunal would be open to the public.
"The Prime Minister stressed: 'If there is such a provision in the law, we will follow accordingly."'
It was a notable statement for a legislator to speak so blandly about a judge "dictating" to him. I was hardly doing any dictating. If a judge in any society cannot express himself on a matter concerning the law, the society must be very ill. To say that my viewpoint amounted to dictating terms was to reduce the whole business to the level of black comedy.
It was equally remarkable for a man deeply involved with the issue for some time to speak of legal "provisions" for the Tribunal, when in fact he knew none existed.
It had already been widely reported that there was no provision for this particular exigency in the Constitution or elsewhere in the law. Unfortunately the reporters who questioned him, also seemed unaware of this glaring fact. (Or did they simply circumvent this "sensitive" question, as they habitually seemed to do?) For did the Attorney-General himself not tell the Press as early as Tuesday 31 May, that the Constitution "did not describe the Tribunal's procedure"? Yet the Prime Minister's news conference calmly gave the impression to the people at large that everything was being done under some existing legal provisions.
But those who knew better were asking, what law was the Prime Minister saying "we will abide by?" Perhaps he meant the "spirit" of the law? Did he mean the spirit of the law? If he did indeed mean that, then my ordeal was over.
Alas, that was very far and away from what he meant. Indeed his narrow philosophy was that we had to live by the letter of the law. That was why he laid such great store by "Written laws". Indeed his real problem was with the 'spirit" of the law which needs sympathy and understanding, and actually calls for "interpretation".
But in the absence of any specific law, the least one could expect was some serious deliberation on the subject, certainly some consultation with the other Commonwealth countries which did have such laws, and preferably some with precedents in actual cases. Both Britain and India are excellent sources. (There actually was an attempt to remove a judge in Sri Lanka not too long ago, and I shall come to the case in due course). There are lawyers in the Malaysian Bar well versed in researching such matters.
Obviously it would take time. But that did not matter.
Nor would it have been out of place to consult the retired Lord Presidents and Chief Justices in the country. Instead, there was no delay. On 1 June the Attorney-General told the press that the Tribunal would be "set up next week"!
"Next week?" While I had reason to be grateful for the s~ with which action was being taken, it became clear that the whole world had not exactly been scoured to find judges of high standing. Judges everywhere have their calendars of cases, and to find them at such short notice was something of an achievement which I myself would have balked at. Then again, I confess, I had become thoroughly used to the scorching speeds at which things were now being done.
Or was I wrong? Had the search in fact already extended itself very far? If the Tribunal was to be "set up" so quickly, had the search already been begun some time earlier? These were not kind thoughts, or pleasant ones, but years of training devoted to discover the truth in so many courts of law, gives the mind its own rein, and it moves swiftly, ahead of the heart.
Only before taking any action does a well-meaning man pause to weigh up the evidence garnered instinctively by his senses. Being then deprived of the opportunity to act, my mind was racing, and I could not help speculating. Neither could many people in the country.
I cannot help reflecting that the alacrity with which the Tribunal was to be constituted was only slightly more noteworthy than the speed which it was actually achieved.
How was it done? Did the search begin on that notorious May Day itself? Did it begin in April? Or even earlier? At this point I could not help recalling the investigation into my leave application. And the inquiry about the Commissioners of Oaths. Were the plans laid as early as that?? Or even earlier in February, when UMNO as a political party "died" in the High Court?
In the end the "one-week" promise did not materialise. It took almost four weeks before I was invited to appear before the judges. But even that let us concede, was speed indeed!
Being in touch with many people at the time who sympathised with me and informed me of developments, I got the impression that in the public mind the whole affair was now tainted with politics. One of the more dramatic moves we read about was the decision of former Deputy Prime Minister, Datuk Musa Hitam to part company with the Prime Minister and his new political party, UMNO Baru. I was told that my suspension from office was, to Datuk Musa, the last straw. I cannot assert that it is true, not having spoken to him, but my point is that people generally saw it all as a matter of politics. Datuk Musa rejoined UMNO Baru months later, but I must say it was at a time when everyone thought that Dr. Mahathir was done for after a heart attack. It was all a matter of politics.
The link between the UMNO cases and my suspension was by now the subject of common conversation. Few believed that the myth of my "misbehaviour" was anything but that: a myth. I had fixed a coram of 9 judges. In the ordinary mind, that move of mine was my actual and only ,.misbehaviour."
It is therefore ironic that in the days to come I was to be accused of or rather, charged with - politicising the whole business.
Prominent political figures were making it known that in their view I was the victim of politics, not the politicising agent. One of the most articulate of these voices was that of Tunku Abdul Rahman Putra, our first Prime Minister, who was then 85 years old, but still a strong-voiced champion of the Independence of the Judiciary. He expressed what he called his disgust at the turn of events.
There were other concerned voices, from abroad. 'Mere was the International Commission of Jurists which sent a telex to the Prime Minister which said inter alia:
". . we respectfully question whether any action of the Lord President constituted "misbehaviour" or "inability" within the meaning of Article 125 (3) of the Constitution of Malaysia.
"As we understand the situation, in recent months there have been tensions between the Executive and the Judiciary arising inter alia from judicial decisions unfavourable to the Government, and public statements from the Government critical of the Judiciary and certain of its decisions.
"In this context, the Lord President believing, after a meeting with all the Kuala Lumpur judges, that such statements served to undermine the Independence of the Judiciary, took what would appear to be the only proper course open to him, namely to inform His Majesty the Yang Di-Pertuan Agong (by whom he was appointed) of his concern in a private letter. According to a statement released by your office, it was this letter, to which His Majesty took exception, which resulted in a decision to suspend the Lord President. . .
'Our organisation respectfully submits that the actions of the Lord President in communicating his preoccupations to the Monarch, in order, in his view, to protect the Independence of the Judiciary, cannot constitute "misbehaviour". By communicating his concern to His Majesty by a private letter, the Lord President clearly conducted himself in such a manner as to preserve the dignity of his office."
The 35-year-old Commission based in Geneva is a non-governmental organisation which enjoys consultative status with the United Nations Economic and Social Council (UNESCO) and the Council of Europe. It is a non-political body dedicated to defending the Rule of Law everywhere in the world, and in recognition for working in complete independence and demonstrable impartiality, it was awarded the first European Human Rights Prize in 1980. 'Re ICJ does not indulge in politics. (See Appendix XIII for subsequent action by the ICJ.)
All that, however, made no impression on the Malaysian authorities. I am not at all certain that the ICJ was not simply rationalised away as a "foreign" and "Western" operation interfering in our internal affairs. (I fear it is a common and foolish argument we hear all too often. It always serves when there is no intelligent argument to rebut critics).
But what of LAWASIA? It is very much a local regional organisation. Its appeal was couched in far more knowledgeable terms of our laws and addressed to The Yang Di-Pertuan Agong, saying inter alia:
"Some of the things that have taken place so far in the exercise of the powers under Article 125 do not accord with the accepted principles of Law...."
But these voices, articulate and lucid though they were, proved quite impotent against the juggernaut - a word, let me note, derived from the Sanskrit Jagannath meaning the Lord of the Universe who is usually ensconced in a gigantic chariot, which, once set in motion cannot be stopped - which could not be stopped in an emergency.
In the Hindu tradition, devotees used to throw themselves under the wheels of this monstrous vehicle, to show their great, blind devotion. The gods, by the usage of time, were confused with the machine, simply because it rolled majestically on. The only rationale for its motion seemed to be that it could move. (I must record here that this comment means no disrespect on my part to Hindus and Hinduism).
Unfortunately there are devotees of the secular juggemaut too, who for their own reasons put their shoulders to its wheels, and heave mightily, not caring who in its path was crushed under its weight.
Now the Executive juggernaut rumbled on, ignoring all the exhortations to reason, towards the destruction, not just of my personal career, which was of consequence only to me, but the integrity of the Judiciary itself.