May Day For Justice

by Tun Mohamed Salleh Abas, Former Lord President, Supreme Court of Malaysia, with K Das


Reason wishes that the judgement it gives be just; anger wishes that the judgement it gives seems to be just. -- Seneca, On Anger, 1st Century, AD.

The hereditary Malay Rulers, (who are the Heads of State of 9 of the 13 states in the Federation), of course, were very concerned out what was going on.

Under the Constitution their powers and functions are limited. They elect The Yang Di-Pertuan Agong (a term which may be translated as Paramount Ruler or King) from among themselves every five years, who occupies the Federal throne until the next election when he must step down unless all the others feel he should continue, and re-elect him. (That has never happened.)

The incumbent was the Sultan Mahmood Iskandar of Johor, and his term of office was due to end in April, 1989. Under the system of Kingship the Sultans of all the States except the Sultan of Perak have occupied the throne in Kuala Lumpur. Sultan Azlan Shah, as the current Ruler of Perak should be the next Yang Di-Pertuan Agong, reigning from April 1989 to April 1994. He was at the time of my troubles, the Deputy Yang DiPertuan Agong.

Of the remaining Sultans the Raja of Perlis, the Sultan of Kedah and the Sultan of Pahang were respectively the 3rd, 5th and 7th Yang-DiPertuan Agongs. The Ist, 2nd, 4th and 6th Agongs from the States of Negri Sembilan, Selangor, Terengganu and Kelantan passed away either in office or after completing their terms. Their sons or direct heirs now occupy the State thrones. But they will only come up for election after every other State has had its Sultan on the Federal throne - unless any of them refuses or turns down his chance to do so.

The election of The Yang Di-Pertuan Agong is strictly a matter for Their Royal Highness alone. The Federal Constitution provides for their absolute discretion in this matter. On their nine votes alone the succession depends.

Their Royal Highnesses also have the power to remove from office The Yang Di-Pertuan Agong, under Article 32 (4) and the provisions of Part III of the Third Schedule which reads:

    "A resolution of the Conference of Rulers to remove The Yang Di-Pertuan Agong from office shall not be carried unless at least five members of the Conference have voted in favour of it."

Thus, while Their Royal Highnesses are Constitutional rulers they do wield considerable power in certain clearly specified areas. On the other hand, as Constitutional Heads of State they are not entitled or authorised to interfere with the actions of the Executive, the Legislature or the Judiciary.

Notwithstanding all that, they do have one critical Constitutional role to play. Their role in the appointments of judges is spelt out in Article 122B of the Federal or Malaysian Constitution (as distinct from the 13 State Constitutions), thus:

    "The Lord President of the Federal Court [the Supreme Court since 7 January, 1985], the Chief Justices of the High Courts and other judges of the Federal Court and High Courts shall be appointed by The Yang Di-Pertuan Agong acting on the advice of the Prime Minister, after consulting the Conference of Rulers."

Thus while they themselves do not appoint judges, the acquiescence of Their Royal Highnesses was clearly spelt out as absolutely necessary. His Majesty The Yang Di-Pertuan Agong had to have their acquiescence before appointing any judge. His prerogative in the matter is thus a qualified prerogative. In other words, while the King in Council or on advice of the Cabinet may act in any matter, on the appointment of judges, he can only act in consultation with the Conference of Rulers.

Thus there was no question of the Rulers being ignored in the exercise of appointing anyone to the Bench.

The question now was whether or not a judge could be removed without their knowledge and approval?

At first sight the Constitution appears to be silent on the subject. The written provision is for the Prime Minister, or the Lord President after consulting the Prime Minister, to make the representation to His Majesty The Yang Di-Pertuan Agong for the removal of a judge.

It may be observed here, too, that there is no provision whatsoever, anywhere in the Constitution, for the removal of the Lord President. The framers of the Constitution clearly did not envisage or anticipate any such probability, even if they spelt out very precisely the provisions for the removal of The Yang Di-Pertuan Agong himself. It is an interesting commentary on the perceptions of the framers of the basic law.

Whatever their reasons may have been, there is no clear guideline for His Majesty The Yang Di-Pertuan Agong or the Executive to act in the matter of the Lord President's removal.

When the Constitution is silent on any subject, what should the Government do? What are the Government's options? The first and most obvious move, of course, is "consultation".

There are authorities both within and outside the scope of the Constitution who may be consulted. Then appropriate action had to be taken to amend the Constitution to accommodate this unforeseen (one might even say the unthinkable) contingency.

But if there was no time - and that, for some reason, was the feeling in May 1988 - there should have been, at the very least this: careful and thorough consultation on the subject.

In this matter the authority to consult, within the scope of the Constitution was rather obviously, the Conference of Rulers. The Bar Council was one of the first to make this obvious suggestion. Outside, of course, lay the whole world of Commonwealth jurists.

Now the Constitution reads that "the members of the Conference of Rulers", under Article 38 (6) ... may act in their discretion in any proceedings relating to the following functions, that is to say

    (a) the election or removal from office of The Yang Di-Pertuan Agong or the election of the Timbalan [Deputy] Yang DiPertuan Agong;

    (b) the advising on any appointment;

    (c) [etc., etc.]"

The Conference of Rulers obviously had powers under which they could not only remove The Yang Di-Pertuan Agong himself from office but they also had power in the matter of any appointment under the Crown.

Clearly, under the Constitution the Conference participated lawfully in the matter of appointing judges. Equally clearly its members "may act in their discretion in any proceeding relating to ... the advising on any appointment."

Does advising on any appointment mean only the act of assigning persons to posts, or does it mean the entire question of any particular "appointment"?

If "appointment" is a noun the meaning is obvious. It means the "job", and if it means "job", "the members of the Conference of Rulers may act in their discretion in any proceedings relating to ... the advising on any appointment," that is, they can if they wish, participate in any decision or "proceedings relating to ... the advising on any job"'.

So, could the Conference of Rulers "advice" on the matter of a judge being a removed from office? The answer appears to be yes.

If the word "appointment" was an active verb, then the Conference may be limited to the act of placing a man in the job. But it is clearly not a verb. It is a noun which means "a post", "a job", a position or "an office assigned".

The framers of the Constitution did not use a specific word to limit the meaning merely to assign a job and exclude the exercise of removal from the job.

We must also remember that the Rulers' powers entitled them to “act in their discretion in any proceedings relating to ... the ‘advising’ on any appointment". In other words, the Conference, in its discretion, had the power to advise in the matter of judicial posts. The members may act in their discretion when it came to a "question" of the posts. There was no doubt about their jurisdiction there.

As it happened, the Conference of Rulers was to meet as a matter of routine on 28 June, the day after the Tribunal was originally scheduled to begin sitting. I was to discover that they actually met four days earlier, in a kind of pre-Conference or Special Meeting. And they thoroughly discussed my situation.

So it was that on Friday, 24 June, as I was leaving my home in Jalan Conlay for afternoon prayers at the nearby Mosque, a large car pulled up. A messenger alighted and informed me that Their Royal Highnesses the Sultans wished to see me at once.

It was almost a month since I had been suspended from office. My letter to His Majesty and Their Royal Highnesses was three months old. The Tribunal was already set up and was due to sit in a few days. I was preparing to face it. Whatever was going on behind the scenes in my cause, I had made no effort to influence Their Royal Highness to act on my behalf. I certainly did not want to be accused of trying to politicise what had already become a notorious affair. And now, out of the blue, here I was, being summoned to have an audience with the Sultans!

The instinct was to do the correct thing at once. I had no reason to delay. I rushed upstairs, changed from the usual simple Malay clothes I wear to the mosque, into a formal Western suit, and went to the Istana (Palace) Kelantan in Jalan Kia Peng.

My mind had been in such a turmoil for four weeks now, and I did not know what to expect.

I have met the Rulers of the Malay States before. At least one, His Royal Highness the Sultan of Perak was a familiar figure since I have known him for a long time in his years as judge, Chief Justice and Lord President. But I had never met so many Sultans in one room at the same time.

Here were the Rulers or their representatives from Kedah, Kelantan, Negri Sembilan, Perak, Perlis, Selangor and Terengganu. The Sultans of Kedah and Selangor who happened to be abroad were represented by their heirs apparent, a brother and son respectively.

His Royal Highness the Sultan of Pahang was not present because his consort who, as I have mentioned, had been sick for some time, was now extremely ill. (As it happened, Her Royal Highness, Tengku Afzan passed away on 29 June).

His Majesty The King had been at the meeting but I was told that he left about ten minutes before I arrived. It was an overwhelming experience for me: an ordinary citizen surrounded by reigning princes of the Realm!

And what they had to say fairly took my breath away!

The former Lord President, Sultan Azlan Shah, as Deputy Yang Di-Pertuan Agong spoke for the rest. It seemed they had come to the conclusion that what had happened to me was all wrong!

And they had all reached the decision that the order suspending me from carrying out my functions as Lord President must be revoked immediately! I must be reinstated forthwith as Lord President of the Supreme Court of Malaysia!

I was like a drowning man being abruptly hauled out of the deep by the sudden hand of Providence. I could hardly believe what was happening. Was it possible? Was I dreaming? My astonishment transformed itself into an overpowering euphoria.

It was exactly four weeks to the day after I was suspended. I had already resigned myself to a long and arduous struggle to redeem my honour. Just a few moments earlier there was no end in sight. Now I was miraculously on the beach, and the clamorous ocean in which I seemed to be drowning was now only a calm sea, lapping at my feet.

I praised God for his justice and his infinite mercy! I murmured my thanks to Their Royal Highnesses.

Undoubtedly the primary reason for my happiness was my own return from undeserved ignominy and disrepute. I knew I was blameless. And now the whole world would know that I was indeed innocent of all the wild charges against me.

But there were other reasons for feeling happy. Their Royal Highnesses proved, so it seemed, that the checks and balances in our Constitutional system were working. They had prevented an injustice from being done. They had, clearly, taken my letter very seriously. They had followed the events of the past weeks very closely. They had heeded the call of the Bar Council. They had functioned precisely as the Constitution demanded - that they act fairly and firmly, and constitutionally, in the interest of their subjects.

To that end they had convened a meeting together with His Majesty The Yang Di-Pertuan Agong. His Majesty, I was given to understand, had explained that he was displeased that I had sent him my letter without observing proper protocol. Malay custom in dealing with members of Royalty of his stature demanded that in lodging any prayer of complaint the applicant should do so personally, not through a letter, not through an intermediary.

I then explained to Their Royal Highnesses my reasons for acting the way I did, pointing out that it was my medical condition which had made me hasten to the United States in March. That was why I had placed the matter of the letter in the hands of another Supreme Court Judge, Tan Sri Mohamed Azmi Karnaruddin. Their Highnesses were clearly sympathetic. They were only too familiar with Royal protocol. They had spoken to His Majesty who had agreed to receive me and accept my explanation and apology.

My feeling of relief cannot be described. The event had taken place not a moment too soon. It was a Friday. The Tribunal was scheduled to sit on the Monday. The foreign judges were already in Kuala Lumpur. Their Highnesses told me it had been arranged for me to meet His Majesty. The Raja of Perlis, a kindly. old gentleman, even advised me on the niceties of protocol, and the language of royal courts I must use when I met the King. At first the Raja suggested that he accompany me when I saw His Majesty but later felt that it would not be proper protocol.

The meeting to end my ordeal would be at noon on Monday, followed by lunch with my Monarch. It was arranged that my lawyer, Raja Aziz Addruse would accompany me to the palace and an invitation for him was arranged. It was a pleasing prospect. All was well, and in my euphoria I could not help thinking that justice does always triumph in the end.

Earlier there was a report that the Tribunal hearing had been postponed for two days. The impression created was that this postponement was to accommodate a request by me. It was a false representation of the facts. What I wanted was the date to be vacated to give me time to prepare my defence. But that now became irrelevant. The matter had become academic. If the whole thing was going to be solved by simply apologising for what His Majesty held to be a mistake in protocol, then it did not matter.

I stress here that the entire basis of the allegations against me seemed to be my March letter to His Majesty and the Rulers. Let me stress that Their Highnesses mentioned no other charge to me on that day, 24 June. As far as they were concerned it was only a matter of protocol, and conventions. I also note here that none of the Rulers had construed sending them a letter by post as a mistake in protocol. Nor did they find anything in the letter to be objectionable or wrong.

On Monday, 27 June, I went to Johor Bahru via Singapore, and arriving early, spent the morning having tea with one of my friends and colleagues, Justice Datuk L.C. Vohrah while I waited for Raja Aziz to arrive. He was travelling separately because he had misplaced his passport and could not come through Singapore. He had to charter a private plane and come direct to Johor.

At about 11.00 a.m. the telephone rang and Raja Aziz, speaking from the airport in Senai told me to proceed to the Istana immediately as the meeting had been advanced to 11.00 a.m.

I must say I was surprised. It made no sense.

The Johor Bahru judge put his car and chauffeur at my disposal and I rushed to the Palace. I could not imagine why the time was changed so suddenly. Raja Aziz also told me that the Government’s Executive Jet was parked at the Sinai airport. What was it doing there? What high personage had suddenly decided to visit Johor? And why? I could not guess. All I knew was that together with the changed schedule, it all boded no good.

If the meeting was to begin at 11.00 a.m. and it was to be followed by lunch, it was going to be a long meeting indeed!

And why should there be a lengthy meeting? An explanation and apology - if it had already been mediated for at the highest level, and agreed to by Their Highnesses should only take minutes. It was to be a matter of form. Matters of substance had already been disposed of. Had not His Majesty told his brother Sultans that it was only the matter of form which had distressed him? The programme, as the Raja of Perlis had explained to me on Friday, was going to be a simple one. I would explain to His Majesty and I would apologise. He would then tell me that he was revoking the suspension order. Then lunch. There would be only three of us: The King, Raja Aziz and myself.

The change of plan had obviously taken place in the last few hours because I could not be informed in the morning before I left Kuala Lumpur. Raja Aziz only found out about it because he had left Kuala Lumpur late.

What exactly had happened in the time between my meeting with the Sultans at noon on Friday and the Monday morning? It was impossible to tell. But I was soon to find out that other major characters had entered the drama.

I reached the gate of Istana Bukit Serene with an uneasy feeling. I was met at the gate and taken to the main porch of the Palace and met by one Datuk Khalid, His Majesty's protocol officer.

There was no sign of Raja Aziz.

When I was escorted into the audience room of His Majesty shock awaited me. Seated in the room, on his right, were the last two persons in the world I expected, or indeed wanted, to see: the Attorney-General, Tan Sri Abu Talib Othman and the Chief Secretary to the Government, Tan Sri Sallehuddin Mohammed. I greeted His Majesty, saying "Peace Be Upon You," and he motioned me to a chair on his left. I sat down.

What were they doing there, these two men from the Executive complex? These were Dr. Mahathir's top legal adviser and his top Civil Servant. Was I to believe that they were going to be witnesses to a peacemaking meeting? The notion was ridiculous. The Yang Di-Pertuan Agong needs no witnesses from the Executive branch for the kind of exercise which was at hand. It was a matter inspired by the Conference of Rulers exercising one of its few prerogatives. So what on earth were this odd couple doing there? They could not help. They could only be in the way.

Worse, I was alone. Raja Aziz, I discovered later, had arrived by Taxi from Senai but was not allowed to pass through the Istana Gates. He was told that the meeting was only between me and His Majesty. And he was told to wait at the Holiday Inn in Johor Bahru, and await instructions!

So there I was on my own, suddenly confronted, not with prospects of peace but the Executive Juggernaut itself - the King flanked by two of the Prime Minister’s most powerful men.

But there was no time to think. His Majesty to whom I was going to explain my alleged lapse in "protocol" exactly 3 months earlier shattered all thoughts and meanings of what that word meant by his first words after greeting me, which consisted of asking me bluntly what I was doing there and what I had to say for myself!

Now this was not what I had expected. According to Their Royal Highnesses conferring in Kuala Lumpur, the matter had been settled. Of course I was going to explain, but His Majesty's greeting was not couched in the language of peace, conciliation or settlement.

I had to ask myself what I was doing there?

What was the Lord President of the Supreme Court of Malaysia doing that morning in the Royal Palace inhabited by His Majesty the King of Malaysia?

Let me answer for the record: I was there because a special conference of the reigning Sultans of Malaysia had arranged for this audience with His Majesty the King. I was there on a mission initiated by the Ruling Houses.

What was I doing there? I was there because I was to formalise a prearranged agreement. And I was being asked what I had to say for myself! I was dumbfounded. I might as well have been struck in the face by my Royal host!

But it was too late. I must make the best of the situation. I began to explain that the purpose of my visit was to explain why I did not deliver that fateful letter to His Majesty personally. I said that if I had erred in the matter of protocol or Malay custom, I craved His Majesty's forgiveness.

The Honourable Attorney-General appeared to be in a state of confusion because he sat with his head down, not saying a word. What was there for him to say?

As for the Chief Secretary, he also had his head down, writing vigorously in a notebook. Obviously he was doing what he does best, making a record of the conversation as he was doing four weeks earlier in the Prime Minister's office. He did not speak. Like the Attorney-General, what could he possibly say if he already knew the facts?

The question really was, what were they doing there in the palace in any case?

His Majesty ignored them both completely and told me in no uncertain terms that I must step down from office!

It is pointless to say I was flabbergasted. It would be the understatement of the century.

There was no question of my explaining my position with the elaborateness and care due to the weight of the problem. He did not seem very interested in the details. Whatever His Majesty may have told Their Royal Highnesses, he now made it explicit that I had only wasted my time going to Johor Bahru. My options, he seemed to explain, were limited. I either quit or I would be removed. Obviously, in his view, I had made some gross error, some unforgivable blunder, not a mere protocol slip. I had apparently also discredited the Government in my speech in Manila. I had committed the error of calling a press conference over my letter offering to retire early and then withdrawn the letter.

Suddenly the presence of the Attorney-General and the Chief Secretary to the Government made sense. His Majesty seemed to be unexpectedly au fait with the whole affair, and with matters quite outside the protocol matter which he told Their Royal Highnesses in Kuala Lumpur was the sole cause of his displeasure. He had been briefed afresh. He was also obviously aware of the other charges against me, and they seemed equally important to him now. His reference to the Manila speech was a surprise - and a give-away - because there had been no reference to it at all since this whole business began.

I was also told by the King that I was only an ordinary "civil servant" who had been appointed by His Majesty and could be dismissed by him at any time! That was amazing considering that the Chief Secretary was sitting next to him together with the Attorney-General, both of whom, in theory at least, were experts on the matter. It was not the time or place for me to raise constitutional questions on the tenure of offices of judges, or explain that judges of the superior courts are not civil servants. How could I when the expert advisers sat there, mute? Did His Majesty get this strange notion, I wondered, from the Prime Minister's speech of 2 October, 1987, in Kota Bharu.

I let it pass, as I let most of what he said also pass.

His Majesty also made out that I was ungrateful because it was he who bestowed the title of Tun on me. Again the legal expert did not say a word on modem protocol surrounding honours bestowed by the King. I said nothing. He also objected to my retaining Mr. Anthony Lester QC to be my Counsel in the proceedings which lay ahead. It was altogether incredible.

Finally he made it clear that I should retire and take all the benefits which the Government wished to give me. Then I had to respond and say that I was not prepared to do that. His Majesty then asked, rhetorically, what would I do with myself if I was dismissed?

I did not want to interrupt his angry flow of words but when he paused I said that I was a very ordinary person who came from an unknown family. I would go back to my village in Terengganu if need be, and make a living planting ubi (tapioca).

He looked as if he were stunned by the idea. There was a pause. Then he repeated what he said earlier, intimating that I must quit and finally asked what I proposed to do. I told him I had to see my position in the light of the Constitution and the law. I made it very clear to him and to the others present that I would not resign.

I do not think I have to explain the state of turmoil my mind was in. There was horror in the absurdity of it all now, or was it only absurdity in the horror of it? The 20 minutes with His Majesty The Yang Di-Pertuan Agong on 27 June were undoubtedly the most torturous moments in my entire life, including the six minutes with the Prime Minister on 27 May and the hour with the Attorney-General on 28 May. Or was it simply that the last torture is always the most painful?

During the entire episode the Attorney-General and the Chief Secretary were as quiet as the proverbial mice. The Attorney-General kept his head down and the Chief Secretary kept writing, and he was so assiduous I thought it best not to say anything that might be used as evidence to accuse me of fresh "crimes".

I may say that it saddened me to see the highest Civil Servant in the land cutting such a sorry figure. The Attorney-General, too, looked pathetic. Whatever role it was they had been invited to play that day, they did nothing in my presence.

I still could not see what they were doing there, at a Royal audience arranged especially for me. Were they perhaps only witnesses in case of any future argument that the Conference of Rulers wanted my suspension as Lord President revoked? I did not raise that delicate subject. Certainly I thought they were there to advise His Majesty. In my presence they gave no advice. What advice they gave him before I arrived, I cannot tell, though, of course I can guess.

    But their presence established one matter firmly: His Majesty was acting on advice. It was the Executive in action that morning when The King told me to step down, not the Rulers, because the two civil servants had no business in matters involving the Conference. Whatever was on his mind earlier, His Majesty was not speaking for the Rulers when he said that I should step down. And certainly the matter of "royal protocol" was not the issue at all that day.

There was no sign of Raja Aziz. Where was he? It seemed pointless to wait and listen to His Majesty repeating himself, however insistent the Executive message was. And I could not imagine what even Raja Aziz could have done in the circumstances. His Majesty was not giving me the opportunity to explain myself satisfactorily, let alone make a case. It was becoming clear that he had not been advised to hear out whatever I might have to say.

One thing was very clear: nothing was being achieved.

So I stood up and took my leave, saying, "Peace be upon you," and kissing his hand, after making it clear that I had no intention of retiring, let alone resigning my post voluntarily. Then I shook hands with the Attorney-General, the Chief Secretary to the Government and Datuk Khalid, and left.

There was of course no lunch with the King on that day.

As may be imagined, I left the Istana totally dejected. It was more than a personal disaster. I would be dishonest indeed if I tried to pretend that I was not deeply disappointed that my career had been shattered for the second time within a single month. But my thoughts also turned to Istana Kelantan in Kuala Lumpur. What would the other Rulers say when they heard of this amazing, not to say bizarre, episode in Johor Bahru? How would they receive this news?

At the judge's house another shock awaited me. Raja Aziz was there. He looked upset, and understandably so. He had been turned away at the Istana gate! He was told that he was not expected! He had been, inexplicably, "disinvited" to lunch!

Despite the arrangements with Their Royal Highnesses, one of the most prominent lawyers in Malaysia, and the respected Chairman of the Bar Council, was turned away at the gate with the message that "only Tun Salleh" was expected! His own royal origins were not something to which Raja Aziz attaches great importance, but the treatment at the Palace gates was disturbing.

We Malays do believe in good manners. By tradition we are particularly correct when it comes to guests, even if the guest who comes calling is someone who is heartily disliked. That is the Malay way. The rules of our hospitality are the rules of politeness. As I have already said, it is one of our strengths.

I was by now getting used to receiving one rude shock after another, but the Johor visit, I thought, was shaking to the very roots all that was sacred in Malay custom and tradition.

More immediately, the three of us could hardly begin to speak about the implication of it all. Justice Vohrah's good wife had prepared a delightful lunch but I could not eat. My mind was still in the audience room at the palace. What transpired there would preoccupy me for a long time. As is my habit I sat down and recalled the morning’s sorry events on paper.

I returned to Kuala Lumpur to live again in the continuing nightmare that had begun in May. Now it was a matter of facing the Tribunal in all its gross absurdity and to steer my way through the gothic obstacles and pitfalls of which it was almost exclusively constructed.

But I still had to face Their Royal Highnesses. They would be awaiting my return with some anxiety. What would I tell them? What could I tell them except the unvarnished truth?

From the Kuala Lumpur airport, where I was met by an emissary, I went direct to the Istana Perlis. The Raja of Perlis was waiting for me. The other Sultans present were those of Perak, Terengganu and Kelantan. The four Rulers were very sympathetic and looked annoyed at what had transpired in Johor.

I explained what had happened and they listened in silence. I could see they were deeply disappointed. The events in Johor, for them, were unprecedented. One of their brother rulers had broken faith. It was clear to me that they could not accept that fact with equanimity. They could not simply let it pass.

After about 45 minutes I left the Istana. I was told later that after I left the Ruler of Negri Sembilan and the regent of Kedah arrived. The Raja Muda (Crown Prince) of Selangor apparently did not turn up.

The action the Sultans took subsequently cannot be, and should not be, described within the compass of this book. It is enough to say that when they tried to act in concert, they found it was far from easy, and that in the end they did not achieve what they set out to do. They could not reverse the decision made by His Majesty in Johor. But that is really another story.

As for the brief and promising interlude in Johor Bahru, it turned out to be only a brief and intense nightmare suddenly stuffed inside the larger and longer nightmare.