May Day For Justice
by Tun Mohamed Salleh Abas, Former Lord President, Supreme Court of Malaysia, with K Das
COURT WITHOUT PEER
Justice is impartiality, and only strangers are impartial - George Bernard Shaw. Back To Methuselah, 1921.
When the Tribunal was finally announced to the public on 13 June one day before the charges were served on me - there were very strong, not to say harsh, protests against the choice of its members. These reactions were given very little publicity in the now disconcerted and demoralised media. But the protests were there all the same.
As for the allegations, (made public, on 21 June), they caused shock for more than one reason. They were the strangest catalogue of oddities ever placed before a panel of judges outside a comic opera.
They were served on me on 14 June and released to the public only seven days later, after the Bar made a strong case for them to be brought into the open. I assumed that once the allegations were made public the whole affair would be brought into the open and that there would be no more secrecy. I was to be proved quite wrong.
I must confess my heart sank when I first saw the list of Tribunal members and the collection of "charges."
First the Tribunal.
It was one which stood in its own class: a Tribunal, one might say, without peer. But it was a very far cry from being a Tribunal of my own peers.
The official communication, from the Prime Minister to His Majesty The Yang Di-Pertuan Agong, dated 11 June, 1988 identified the judges as follows:
1. The Hon'ble Tan Sri Dato Abdul Hamid bin Haji Omar, Chief Justice (Malaya) -Chairman.
2. The Hon'ble Tan Sri Datuk Lee Hun Hoe, Chief Justice (Borneo) -Member.
3. The Hon'ble Mr. Justice K. A. P. Ranasinghe, Chief Justice, Democratic Socialist Republic of Sri Lanka. - Member.
4. The Hon'ble A&. Justice T. S. Sinnathuray, Judge of the High Court, Singapore. - Member.
5. Y. B. Tan Sri Datuk Abdul Aziz Zain, retired Judge of the then Federal Court, Malaysia. - Member.
6. Y. B. Tan Sri Datuk Mohamed Zahir bin Ismail, retired Judge of the High Court, Malaya. - Member.
His Majesty, of course, approved the entire list without question, on the very same day.
A man living in a just society, facing his judges, in the ordinary course of events, should not be concerned about their competence. The system should be relied upon to place on the Bench only men who were manifestly and unquestionably beyond reproach. And obviously, independent in their thinking.
In our own system of justice, nevertheless, "in the common pursuit of true judgement", an accused person may call upon a judge to disqualify himself if he had a good reason to believe he may not receive justice. It has certainly happened in our courts.
What is most important in a court of law is the widest and clearest perception that justice is being done, not only that it is actually being done. Seeing, as the saying goes, is believing. There must be no doubt whatever in the public mind that the whole process of doing justice was beyond reproach. In other words, a man shall be seen to have justice and shall be given every protection against even appearing to be denied justice. To that end he is allowed to challenge even the justness of the selection of his own judge. The process of a judge disqualifying himself in the interest of justice is called "recusal". And the act of recusal is neither uncommon nor surprising in the system of law we subscribe to and live by.
I drink it may be well to record here that one of our High Court judges, Justice K. C. Vohrah did recuse himself during those hectic days when the Tribunal was much in the news. He found that a witness, (in a completely unrelated trial), was an accused man he had earlier commented adversely upon. The judge quoting another judgement said:
"Public policy requires that in order that there should be no doubt about the purity of the administration, any person who takes part in it should not be in a position that he might be suspected of being biased.".
A man may not choose his own judge, but he may object to a particular occupant of the bench, for a particular reason. And an honourable judge will not wait to be asked twice. Even the vaguest hint of unfitness to sit because of a remotely possible bias, or any other reason, would make him step down without further ado. In other words "justice must not only manifestly and undoubtedly be seen to be done," the citizen must believe that ever , y possibility of an injustice being done is completely eliminated beforehand. (And this, may I say here, is one of those principles of that "natural justice" which is not comprehended in some very important quarters).
Now, I was not facing any ordinary court of law. It was a very special court, a Judicial Tribunal named by His Majesty The Yang DiPertuan Agong, designed for me, and for me alone to face. This court had no other function. It was meant to hear only one case, mine.
The Tribunal was at once the court of first resort and the court of last appeal. In our system of doing justice, this is not normal for it did not allow for human error. So constituting this court was a heavy responsibility indeed.
And yet those responsible for constituting this very unusual Tribunal were neither impartial nor strangers. On the contrary, they were the principal complainants in the case and were very familiar with me.
My judges were actually chosen by my adversaries.
Now who were my adversaries? In the exceptional circumstances I was placed in, one was first identified as no less than His Majesty The Yang Di-Pertuan Agong himself. It was a dreadful thought, to have a King - even a Constitutional Monarch - as an adversary.
The second adversary was the Prime Minister! And that was an even more fearsome thought.
Then came confusion: the claims on the subject of who made the complaint against me, and to whom it was made, changed from one day to the next.
First it was His Majesty who complained about me to the Prime Minister - on 1 May, 1988. (And that was the day of the great mysterious saga I have already touched upon).
Then it was the Prime Minister who complained about me to The Yang Di-Pertuan Agong - on 25 May, 1988.
The Head of State and the Head of Government had both complained, to each other, about me! The drought was terrifying!
(Need I say that in another age such a situation would have been fatal for the subject and the object of disaffection?)
When all the allegations were revealed, both these august personages stood facing me in admittedly adversarial positions. The King's alleged anger and complaint are well known. Then it transpired that the Prime Minister was also displeased.
Such being the terrifying case, could they, in the name of justice, conscience or even common sense, choose my judges?
Again, admittedly, it was an extraordinary situation. It demanded thoughtfulness and extraordinarily cautious procedures. Someone other than the Prime Minister should have advised His Majesty on the choice of my judges. There is no provision for this under the law, but then there is no other provision either.
There were other considerations and options. Since it was the Prime Minister himself who was the adversary - he had made the attacks upon the Judiciary in Parliament to begin with - the Deputy Prime Minister could have made the prime moves in this peculiar situation, if necessary by amending the Constitution. This option - there may be others - was not exercised. The same accusers who had found faults with me simply went ahead, and very quickly discovered suitable judges.
Given all that, how much more reason I had, how much more right, to challenge the composition of the Tribunal and say, "No, no, not this judge and also, not that."
My solicitors, Messrs. Shook Lin and Bok, then wrote to the secretary of the Tribunal, Dr. Mazlan Ahmad pointing out the various disabilities of the members to serve on the Tribunal with propriety. (Annexure 17 in Volume 2 of the Tribunal's Report.)
The reaction to this letter came in the strangest way. Dr. Mazlan did not reply at all. The Chairman of the Tribunal-cum-Acting Lord President cum-Chief Justice instead, wrote to the Prime Minister saying the Tribunal members felt they were appointed by the Yang Di-Pertuan Agong and would therefore continue to serve until commanded otherwise.
It sounded reasonable enough; it even rang of great loyalty to some high justice personified by His Majesty The Yang Di-Pertuan Agong. Ins Majesty is indeed the fountain of justice. No doubt the Chairman of the Tribunal-cum-Acting Lord President-cum-Chief Justice would have leapt from the highest promontory in the land into the sea below, upon being given a royal command. For his letter to the Prime Minister evoked thoughts of that royal knight-at-arms quality:
"All members of the Tribunal will continue to perform their duties unless otherwise commanded by His Majesty."
But the Honourable Acting Lord President-cum-Chief Justice did not seem to consider the rules of natural justice as an impediment to his serving on the Tribunal, nor did he appear alive to the Constitutional nature of the problem before him.
I must say that long before all that transpired, a quick glance at the list alone told me that mine was a forlorn hope. I felt I stood little chance of receiving justice because the very basic requests I had outlined about the character of the Tribunal had been pointedly ignored.
And the Prime Minister had indicated publicly what the ground rules were going to be. Had he not said, "Normally we don't have anyone dictating conditions of this and that. . . ." when commenting on my view that I was "entitled to be tried by judges whose rank and standing are at least equal?" (One might ask here, who the Prime Minister meant by his plural "we"? The Government? The Cabinet? UMNO? "The King and I", meaning His Majesty The Yang Di-Pertuan Agong and the Prime Minister? Who were this " we" who decided on such matters? and in fact, ultimately, did?)
In the days to come the Attorney-General was to say that I "seemed" to cast suspicion on the competence of these judges. This transparently tendentious and mischievous line was to characterise the Attorney-General's "submissions" to the coming Tribunal. The plain fact is that I was saying nothing of the professional abilities of the judges at all.
I may make some observations about the obvious here: only one of the members of the Tribunal (the Chief Justice of Sri Lanka) enjoyed a rank comparable to mine, and not one of them was of a higher rank. And fully half of them were clearly tainted by conflict of interest factors.
All this is not to say they were or had been, competent or not competent to function as judges in their own particular jurisdictions. That was not the issue. The issue was that they were looking at an entirely new jurisdiction, (and one of highly questionable merit at that).
Long after my fate was sealed, when careful post-mortems were being held by people learned in the law, one of our respected retired judges, Tan Sri Chang Min Tat observed:
"Apart from any personal involvement which any judge should take into account when considering whether to disqualify himself, and he should of course be completely honest about it, the appearance of bias is, or should be, sufficient to exclude him. It is for this reason that the framers of our Constitution have in Article 124 (4) included among those qualified to sit 'persons who ... have held office as judge ... or persons who hold or have held equivalent office in other parts of the Commonwealth.' This provision, let us be perfectly clear about it, is certainly not to supplement any insufficiency in numbers from the Supreme Court and High Court of Malaysia. The reason clearly is to ensure that only completely disinterested judges would sit.
"Even if it can truthfully be claimed that Supreme Court and High Court Judges are independent and have personally no interest whatsoever in the outcome of the trial, surely only serving judges of a higher standing than the person on trial, past judges and Commonwealth judges with no connection with this country can demonstrate with a certainty that is inarguable, that they have no higher office to aspire to, no continuation in office to protect, no higher honour to aspire to, in other words, they have no expectations whatsoever. They are not in the running in any rat-race. This one consideration must surely argue for trial by his peers."
Tan Sri Chang's paper on the subject of "Judging The Judges", unfortunately, came in November, three months after 1 was dismissed and the Tribunal dissolved. But he did leave some food for thought when he said that the Tribunal should remember:
". . . that the standard set by them will be the standard for any future Tribunal, and woe betide them if they should ever be in the same position if the standard set by them should be other than the proper one...."
No one can argue with that.
Now, soon after the Tribunal was named, my Solicitors wrote to its Secretary, objecting to its composition. As early as 17 June, the Bar Council also called upon the Chief Justice and Acting Lord President, Tan Sri Hamid not to accept the Tribunal appointment if he was nominated because it would be embarrassing both for him and to the Bar - because he was next in line for the post of Lord President if I was removed.
In fact the immediate past President of the Bar Council, Encik Param Cumaraswamy, accompanied by three other members, Encik G.T. S. Sidhu, Encik S. Theivanthiran and Encik Manjeet Singh, went to see the Chief Justice on 11 June. They urged him on behalf of the Bar Council not accept the proposal that he chair the Tribunal "in order to avoid any ugly embarrassment to the Judiciary." They carefully spelt out two reasons for rejecting the position of Tribunal Chairman:
1. He was an interested party. If the Lord President was in fact dismissed he stood in line to succeed.
2. He had participated in the conferences of the 20 judges on 25 March which resulted in the letter to His Majesty The Yang Di-Pertuan Agong, which in turn appeared to result in the whole exercise.
The Chief Justice refused to give them any assurance that he would turn down the job. Instead he Rave them a short lecture on the character of the King's command, the details of which I would not like to retail here. Suffice it to say it did him no credit as a judge. They then asked him to seek an audience with His Majesty to resolve the matter. His response was that they could seek such an audience if they so wished! But he himself would not.
The day of the meeting, 11 June, of course, was the day the Prime Minister had written to His Majesty The Yang Di-Pertuan Agong, naming the Tribunal, and it was also the day His Majesty had approved the list. So the Chief Justice, when he met the four Bar members, knew that he was already all but formally appointed. (His name could not have been submitted without his acquiescence - for he cannot claim that it was done without his knowledge, in the name of the Prime Minister's prerogative). Yet he did not tell his callers that simple truth.
The meeting with the Chief Justice was altogether disconcerting.
The Bar Council's arguments were powerful indeed but they fen on very unreceptive ears. They were so obvious - anticipating Tan Sri Chang Min Tat's "rat-race" observation - that there should have been no need to even raise the matter.
But for their own reasons - and the Bar Council now had some cogent reasons - they made the point again, this time publicly, in a resolution, which was later approved by the entire Malaysian Bar, that the Chief Justice must disqualify himself from sitting.
Eventually the Chief Justice turned the Bar down, also publicly - in a Press Statement on 19 June - for what can only be interpreted as a reason of a completely mediaeval orientation: that when the nomination came, it would be a Royal command which he could not disobey. To do so, he declared, would be an act of disloyalty. This, it turned out, was also the rationale for that letter of his to the Prime Minister which said, and I repeat it:
All members of the Tribunal will continue to perform their duties unless otherwise commanded by His Majesty.
It was all a matter of "loyalty" for him.
But how? Had we, in the closing years of the 20th century, suddenly plunged back into the dark ages?
I might say here, as a lesson in elementary Constitutional theory, that a Royal command today is in truth nothing more than a Constitutional command. For His Majesty The Yang Di-Pertuan Agong, is a Constitutional Monarch and not an absolute ruler with the power of life and death in his hands. And this, I should emphasise, is not a matter of quibbling.
If there were an absolute monarch today, his every wish would indeed be an irrevocable command. And since, on 27 May, the Honourable the Prime Minister told me His Majesty The Yang Di-Pertuan Agong had commanded him to tell me to step down, I should have asked no questions and stepped down forthwith.
But in Malaysia today we do not support and sustain any absolute monarchy. The command today must necessarily be Constitutional in character to be valid, and that is precisely why a Tribunal was necessary to inquire into the allegations against me. The problem from the outset was Constitutional. In an absolute monarchy such a Tribunal would have been superfluous.
To claim that a Royal Command today had to be obeyed unquestioningly is therefore to do violence to the Constitution, which we as judges were sworn to preserve, protect and defend.
Indeed the truth is that it would do violence to the institution of the modern monarchy itself since that institution, too, derives from the inspiration and wisdom of the Constitution.
But the Acting Lord President, for his own reasons, chose to retreat into a hopelessly untenable position, and so took on the appointment of the Chairman of the Tribunal. No one, it seems, and nothing, could persuade him that he had blundered.
Ironically, (to digress again), the day was to come when another man, who also claimed at first that he could not disobey a Royal command, was shown enough in the law and its conventions, and the Constitution, to step down from the Chairmanship of the second Tribunal. He was none other than Supreme Court Judge, Tan Sri Hashim Yeop Abdullah Sani, who had made that disturbing (and prophetic) remark, on the afternoon of 27 May, about possible additional charges against me.
I sincerely hope that Tan Sri Hashim's decision has put paid to any future claim by any official that we somehow still subsist on mediaeval norms and obsolete legal principles. Unfortunately his decision came too late for me. But where does that put Tan Sri Hamid today? I fear that as late as March 1989, he was still hanging on for dear life to his moribund theory of the Royal command, as demonstrated by his letter to the International Commission of Jurists (See Appendix XIV).
Now, even if Tan Sri Abdul Hamid Omar did not invoke this moribund concept, and even if he did not stand first in the line of succession to my post, he ought to have seriously considered that other glaring fact: that he had participated in the judges' conference in my Chambers on 25 March, 1988. That was when all but one of all the country's 10 Supreme Court Judges and 11 of the High Court Judges decided that I should write that fateful letter which set in train the events which resulted in the Tribunal.
Now, even if he claims - and he has not done so - that he was not enthusiastic about the letter, he certainly has to admit that he openly agreed on the need for it at the time. And indeed, if he felt then, as he claimed he felt later, that a Royal wish was an absolute command, he did not make his feelings known on 25 March to the 19 judges in my Chambers.
Nor did he subsequently dissociate himself from the judges' decision at any time. Not even, I might add, did he do so when he took his place at the head of that Tribunal at the end of June.
And then there was no disclaimer, no explanation, not even an attempt to rationalise away the position he took, in the Tribunal's final Report.
How, then, did he consent to sit and judge in a matter in which the alleged offence was committed not only on his own behalf but actually in concert with him?
There is no question that the Chief Justice did take part in an action which was subsequently condemned as an offence; was he going to sit in judgement over his own particeps criminis or partner in crime? If it was indeed an offence, should he himself not also be in the dock?
The other point which could not escape notice was that he was not my equal in rank in the judicial community.
I was appointed to the Federal (now Supreme) Court Bench in 1979 and elevated by The Yang Di-Pertuan Agong to head the Judiciary in 1984.
My posting may appear to have been made over Tan Sri Hamid's head. Indeed he was elevated to the Bench in 1968, about 11 years before me. Yet, it is simply a fact that in the judicial - legal community he was assessed and ranked by the established system, below me - despite his far longer stint on the Bench. Now this is not to raise questions about his learning and experience, or his competence, nor yet his character or standing in the community.
In the normal course of events the choice would have been made by the then Lord President prior to his retirement, after consulting senior functionaries, including even the Attorney-General. Then the Prime Minister would have been given the name for submission to the Conference of Rulers.
At the risk of sounding trite, such decisions are not made hastily or lightly. Every opinion on my worth would have been sought and carefully weighed, every sensitivity considered. Every alternative would have been put on the scales. No doubt Tan Sri Abdul Hamid was also considered for the post and perhaps found wanting in some respect. I cannot say. I can only say with certainty that he was not by-passed by accident or carelessness. And despite his earlier elevation, he was not my senior in rank.
For the record, I took my Bachelor of Laws degree in July 1954 and was called to the Bar at the end of that year.
As a State Government scholar from Terengganu, I returned from London to my home state, and was offered jobs in the Civil Service and the Diplomatic Service. I turned these down because I wanted to practice law. I was then loaned to the Federal Government and posted as a magistrate and President of the Sessions Court, to Kota Bharu in November, 1955. Tan Sri Hamid, who did not even read for the law degree - it was not a prerequisite to become a lawyer in those days - had not yet even been called to the Bar at that point in time.
I joined the Legal and Judicial Service soon after it was created in December 1956, and would have under normal circumstances become a judge by 1963. But those were the years of great changes and growth, the years of Malayanisation of the Public Service. Independence came in 1957 and British expatriate officers were being replaced by local people. Then came Confrontation, that sham war declared by Indonesia, and the formation of Malaysia.
The Attorney-General's Chambers were fully occupied drafting innumerable laws. I was persuaded by the late Tun Razak to stay on in the Attorney-General's Chambers rather than seek elevation to the bench. In the years 1960-1961 I returned to London and did courses in International and Constitutional law, and at my own initiative, the examination in International Economics for the LI.M. degree. That was the time I met and befriended Tan Sri Hashim Yeop Sani who was doing his Bar studies. I never found time to finish my Master's dissertation when I returned because of the work-load in the Attorney-General's Chambers in those hectic years.
In the late 1970s, as I was reaching the age of 50 serious thoughts of leaving the service occurred to me, when I was offered rather lucrative jobs by two banks. My own inclination was to go into private practice. It was Tun Suffian Hashim, the then Lord President who persuaded me to stay on. Reluctantly, I agreed. On 6 January, 1979, I was elevated, in view of my length of service and experience, direct to the Federal Court Bench rather than to the High Court Bench.
I discovered that Tan Sri Hamid was not very pleased about this because the appointment immediately made me senior to him in the Judicial Service. He was then a High Court judge and rose to the Federal Court a year or so after me.
In 1982 when Tun Suffian was about to retire and Raja Azlan Shah was about to become Lord President, my name and that of Tan Sri Wan Suleiman Pawan Teh were submitted for selecting the Chief Justice. I discovered later that Tan Sri Hamid protested and wanted his name to be considered too, and it was then included in the list.
It should be noted that Tan Sri Wan Suleiman was senior to me, and Tan Sri Hamid was now my junior in rank. Both these judges had a lot of experience in trial court work, Tan Sri Wan Suleiman much more than Tan Sri Hamid. I had none. Yet the final choice fell on me. The factors which decided in my favour cannot all be enumerated here, but l was told that Tan Sri Wan Suleiman was not eliminated because of any lack of judicial skills.
One of the first to congratulate me on my appointment, personally and very warmly, was Tan Sri Wan Suleiman. Tan Sri Hamid, on the other hand, wrote a memorable one-word letter which I still possess, and the one word was, "Congratulations."
In view of subsequent events, after I rose to become Lord President, I can say here that Tan Sri Hamid was not very helpful to me as the new Chief Justice. He never stopped trying to demonstrate that he was, somehow, a more efficient and more competent judge than I. He made a number of changes and public pronouncements on his own, instead of assisting me as Head of the Judiciary, very much to my embarrassment.
Once during my absence attending an overseas conference, as Acting Lord President, he appointed Datuk Harun Hashim, then a High Court judge as Acting Chief Justice, to the dismay of all the Supreme Court Judges. On another occasion, during my last official absence in April/May, 1988, he announced that six new judges were to be appointed. Needless to say I was put in a very awkward position when the Bar Council asked me to elaborate on the matter and I had no knowledge of it.
I let these things - and many others - pass, because I wanted, at all costs, to avoid presenting the image of a squabbling and divided Bench. There is more to doing justice than to be learned in the law and condemning criminals. As Lord President I had to make sure that the image of the Judiciary was not tarnished by personal weaknesses and private ambitions.
At any rate, the post of Lord President was an honour I accepted with much humility for I was conscious of the vastness of the responsibility I had been endowed with to crown my career.
At the end of the day, Tan Sri Abdul Hamid Omar should have, whatever his private ambitions, as a matter of professional etiquette and ordinary courtesy disqualified himself as far as the Tribunal went. One should not presume to sit in judgement over one's superiors in rank. The principle is obvious and ancient: no one should be judged except by his peers - nisi per legale iudicium parium - and certainly not by anyone even vaguely in a directly subordinate position: headmasters are not judged by junior pedagogues - however more experienced they may be as teachers in the classroom; nor Generals by Colonels - even if the Colonels are more battle-scarred than the Generals; and more than anyone else, the Chief Justice should have known that, and known precisely where he stood in relation to the Lord President.
In the days to come, in his letter to the ICJ (Appendix XIV) he was to make much of the difference between our judicial experience on the Bench. I can only say that every good lawyer is not elevated to the Bench, simply because he knows the law very well, and mere years of service on the Bench does not necessarily make a man a better judge (or qualify him to become Lord President). Nor, on the other hand, is there any wisdom in the view that "one judge is as good as another." Thus the view Tan Sri Hamid expressed to the ICJ was not naive so much as it was tendentious. and in the end, quite pointless.
He was prejudiced against me.
And I did specifically ask for a Tribunal of my peers or betters.
A second member of the Tribunal who was seen by many people as totally unsuitable was the Speaker of the Dewan Rakyat, Tan Sri Mohamed Zahir Ismail who retired after 8 years on the High Court Bench, in 1982, and was appointed Speaker of the Lower House. He was awarded the post by the political party in power. He was now part of the Legislature, and for that he was clearly beholden to the party which forms the Government led by Dr. Mahathir Mohamad, a principal complainant in the matter at hand '
it would be difficult for him to explain how as a member of the Legislature he could, in conscience, sit in judgement over a member of another independent arm of Government, the Judiciary. For as a former judge he must surely know exactly what the doctrine of separation of powers implies. The conflict was so glaring that the wonder is that he was asked to serve at all! And when he was actually asked, why the former judge did not react with an immediate and unequivocal "No!" is another marvel.
There have been others before him who sat on that high chair in Parliament who were beholden to other Prime Ministers. Ale most memorable was the late Tan Sri C. M. Yusof who was a rival of the then Prime Minister, Tunku Abdul Rahman, for the post of party president and thus the Prime Ministership itself. But he was never called upon to sit in judgement over a judge.
Now, even if Tan Sri Zahir had not been the Prime Minister’s political crony but a heartfelt opponent, the fact that he presided, without objecting, over the Dewan Rakyat when the Prime Minister was attacking the Judiciary during the debate over amendments to Printing Presses and Publications Act 1984 was disqualification enough. Even if the Speaker is an appointee of the party in power, he has to be neutral in the chair, and he should have, in deference to that same doctrine, stopped the Prime Minister from proceeding to abuse and insult the Judiciary, not just casually but at great length.
One might object to that argument because Parliament, of course, may discuss anything. It is a forum for free expression. No subject there should be taboo. But that was never a good argument for discarding all principles, proprieties and protocol and descending into the gutter.
Angry partisan MPs, it is true, all too often do fall into the error of name-calling and mud-slinging, but they usually hurl their missiles at those who can defend themselves immediately. As Mahatma Gandhi put it, "Pouring ridicule on one's opponents is an approved method in ‘civilised politics."' But the abuse of the absent Judiciary was quite another matter. It was an assault on a helpless target with no means to defend itself - except through a Speaker who knew the Constitution and respected it. For Article 127 of the Constitution spells it out only too clearly:
"The conduct of a judge of the Federal [now the Supreme] Court or a High Court shall not be discussed in either House of Parliament except on a substantive motion of which notice has been given by not less than one quarter of the total number of the members of that House, and shall not be discussed in the Legislative Assembly of any State."
Tan Sri Zahir made no move to stop the Prime Minister, and thus raised serious questions about his competence to judge. It is true that no individual judge was being attacked, but the insult directed at every judge in the land was quite disgusting.
Secondly, it was remarkable that as this former judge continued to preside over the debate in the Dewan Rakyat, the elected Members of the House proceeded to deliberately and "lawfully" butcher the law (and thus the doctrine) upon which our most important democratic institutions rest Article 121 of the Constitution.
After that, how could a judge expect fairness, let alone "elementary justice" from a man who appeared to see no harm in the Judiciary being publicly damned?
To reduce the Zahir question to simplicity itself: should a practising politician sit as a judge in a case brought to court by his own political party leader who, moreover, happens to be actually in power?
Tan Sri Abdul Hamid makes the point in his letter to the International Commission of Jurists that Tan Sri Zahir was appointed a High Court Judge years ahead of me (in 1975), while I had no trial court experience at all. No doubt, no doubt. But if trial court experience was even vaguely relevant, there were men enough with far superior records, with experience in the High Court as well as the Supreme Court, the Chief Justice's office and even the Lord President's! And they were all available.
And be all that as it may, what could all his trial court experience do to offset the myriad disabilities clouding his fitness to sit at all?
The third member of the Tribunal who raised public eyebrows had sat on the Federal (now the Supreme) Court bench some 17 years earlier. Tan Sri Abdul Aziz Zain was now a businessman, and more to the point, held a currently valid certificate for practising as an advocate and solicitor. In short he was a practising lawyer.
Under what rules of ethics does a practising lawyer think that he can accept an invitation to inquire into the conduct of a judge, let alone the Lord President of the Supreme Court?
Even more incredible was the fact that he was a litigant (with several others) with two suits against him in connection with the sale of houses, pending at the High Court at the time.
Were those who chose the members of the Tribunal completely unaware of this fact? What of the Chief Justice-cum-Acting Lord President? And the Attorney-General himself? Did they not know? Did this former judge himself not know enough to inform the Tribunal's convenors of the fact - and then disqualify himself'?
Did any of these men, at that point, address their minds to the questions of propriety, suitability and fitness - upon which the principles of natural justice rest?
Instead Tan Sri Abdul Aziz publicly registered his protest and said he took exception to the fact of the law suits pending against him in court being raised by the Bar Council in a press statement dated 17 June. The Bar however was not intimidated. It repeated the same facts in another statement, on 23 June and said it stood by them. And this former judge did not even respond to the challenge the second time round! The public allegation against him stands to this day.
Could such a man sit in judgement over another judge? Or any other man?
So against all expectations, defying every ordinary convention, he went on to sit on the Tribunal.
Nor did the Attorney-General and the Chief Justice comment on the merits or defects of the Bar Council's claim, or reconsider Tan Sri Abdul Aziz Zain's suitability to sit.
How did they dare not to concede that the mere appearance of not being completely above suspicion was a severe disqualification to sit?
Tan Sri Abdul Aziz, too, according to Tan Sri Abdul Hamid’s letter to the ICJ, sat on the Bench long before I did, in 1964. But how does that qualification weigh in the balance against his awesome disqualifications?
These then were the three men who formed half the body that was to inquire into the allegations of my "misbehaviour."
With fully half the Tribunal appearing to be so badly tainted, who could reasonably expect justice to be done?
And here I cannot help asking, "Was it not a wonderful coincidence that every one of these three gentlemen also happened to go to the same school in Kedah - The Sultan Abdul Hamid College in Alor Star - as the Prime Minister, Dr. Mahathir himself?" The old school tie is a wonderful thing, but should it ever actively furnish, or even passively decorate, a judicial bench hearing a complaint by a man wearing the same old tie?
The appointment of the Chief Justice of Borneo, Tan Sri Lee Hun Hoe (who by a strange coincidence also happened to be born in Kedah) may have stretched credibility a little less, and he may have been the least controversial of the four Malaysians on the list, but even he was subordinate in rank in relation to me as Lord President. Knowing my feelings on the matter, and his awareness of our particular relationship in the immediate past, apparently, was not sufficient for him to disqualify himself.
The Bar Council's report on the Judicial Tribunal's Report later commented:
". . the Bar Council had brought to the notice of the Government that there were available two retired Lord Presidents, at least one retired Chief Justice and a number of retired Supreme Court Judges who could have been appointed."
Why were these former Lord Presidents, Chief Justice and Supreme Court Judges not invited to form the Tribunal and sit on it? It is one of these questions, I imagine, which will never be answered by those in power. Indeed, it will be one of those questions which will be the subject of shameful introspection for years to come.
The Tribunal formation, by this gross omission, insulted two men who stand in high esteem at home and abroad. How would these judges themselves explain to the world their exclusion from roles they were eminently, nay, ideally, suited to play? The Government, it has to be admitted, shamed not just these men also but disgraced itself and the country by not seeking their advice and service.
I will not dwell at any length upon the suitability or otherwise of the two foreign judges, from Singapore and Sri Lanka for the reason that they may not have been aware at the time they were being invited, of all the ramifications of the exercise they were about to participate in.
But I might note first they were not senior in rank to me, and at least Singapore's Justice T. S. Sinnathuray was asked only because the Chief Justice of Singapore was not immediately available. And the Government, it seems, was in a terrible hurry.
Mr. K. A. P. Ranasinghe, was a fairly recent appointee. As Chief Justice of his country he appeared to be the only vaguely reasonable choice (in terms of rank), of the six, but it is noteworthy that he had replaced the former Chief Justice of Sri Lanka, Mr. N.D.M. Sarnarakoon QC, who quit after an attempt to have him removed, also for alleged misbehaviour, failed. (I shall touch on this very important case a little later on).
Meanwhile it might be asked: once they reached Kuala Lumpur, did these two judges not have time enough, and inclination enough, indeed curiosity enough, before embarking on their onerous and unprecedented duties, to discover that they had indeed fallen among very strange lawmen?
As superior court judges in their own countries, did they not become conscious of the hostility to the whole exercise expressed by virtually the entire intelligentsia of the country, led by the Malaysian Bar?
Did they, I really wonder, study Article 125 (4) and ponder on its full meaning? Did the point raised by Tan Sri Chang Min Tat on Commonwealth judges strike them in their reading? How did they, in the end, consent to sit with judges who were not demonstrably untainted? What made them proceed to sit as if all were well?
Or did they too, ultimately, subscribe to that astonishing egalitarian view expressed by the Attorney-General on 1 June to the press: "Any judge can be appointed [to the Tribunal]. One judge is as good as another? "
Another curiosity about the Tribunal formation was the decision to appoint an even number of judges.
In the event it did not matter whether there were 6, 16 or 26 judges, but the explanation for deviating from the constitutional provision of "not less than five persons" was disingenuous to the point of provoking guffaws of laughter. That there were "not less than five" persons on that special Bench cannot be gainsaid, but that tenuous fact alone does not even begin to answer the doubts created in the public mind. Nowhere in the civilised world does any tribunal or court of law deliberately operate with an even-numbered coram. Apart from anything else, there is always that risk of deadlock.
So why did this Tribunal consist of 6 persons? Was a seventh judge actually sought for the Tribunal? Was there great difficulty, perhaps, in the haste, about securing a suitable candidate of the same judicial ilk as the others? Despite the principle that "one judge is as good as another?"
There was a strong rumour that the Chief Justice of Mauritius was invited but that the Honourable judge, for some reason, declined the invitation.
I learnt later from the retired Chief Justice of India, Mr. P. N. Bhagawati, who is now travelling around the world, participating in legal and judicial conferences, that the Chief Justice of Mauritius was one of the judges who attended the Conference of African Chief Justices in Nairobi in September, 1988. He had voted on a resolution condemning what had happened to the Malaysian Judiciary. Clearly the events surrounding my dismissal were being followed even in the African continent.
There is, of course, no shortage of independent minded, learned judges in the Commonwealth. If the Mauritius judge had in fact declined there were excellent alternate candidates in Africa, Australia, Britain, India and other Commonwealth countries.
The most startling commentary on this 6-man coram business came in that letter written by the former Chief Justice to the ICJ in March 1989 (Appendix XIV). At page 5 of his 12-page letter, the coram is carefully reduced to five and one of the four Malaysian judges is quietly disposed of. The Chief Justice writes with studied meticulousness, as follows:
"In the first place, taken at its full face value this charge [by the ICJ could be construed to mean that the Tribunal comprised three members all of whom were from Malaysia. In fact, however, apart from the three judges from Malaysia (of whom I as Chairman was one ), there were two foreign judges, namely......”
This was distortion of the most blatant and most shameless kind. The International Commission of Jurists did not say there were only 3 judges on the Tribunal. It said the Malaysian judges in the Tribunal were all junior in status to the Lord President [See Appendix XIII below, para 2(c)l. 'Me ICJ did not mention the numerical size of the Tribunal at all in para 2(c), but the Chief Justice imports the idea quite casually and leaves it there. Then he adds two foreign judges to the "three" local judges - and Hey Presto! - there is the internationally respectable coram of five!
Why the new Lord President went to the trouble to do all that I cannot tell. It seems foolish at the very least for it renders empty the earlier argument that the Constitutional provision for "not less than five" did not mean an odd number but simply 5 or more. That specious argument was disgraceful enough. Now it was much worse.
The best excuse Tan Sri Abdul Hamid can try to make about that piece of legerdemain is that he forgot, or that it was a typing error. But it will impose severe strains on anyone's credibility who reads his words: "In fact, however, apart from the three judges from Malaysia (of whom I as Chairman was one) there were two foreign Judges. . . " Like the Attorney-General on the subject of the Sunday-gone-Wednesday statement, the Chief Justice painstakingly nails it down, and very firmly: there were three (3) Malaysian Judges, including himself!!
The arithmetic is remarkable:
Tan Sri Abdul Hamid Omar of Kedah (Chairman) + Tan Sri Lee Hun Hoe, born in Kedah + Tan Sri Abdul Aziz Zain of Kedah + Tan Sri Mohamed Zahir Ismail of Kedah = 3 Malaysian Judges!
1 + 1 + 1 + 1 = 3!
So which of the four learned Malaysian judges did His Lordship dispatch into limbo when he wrote to the ICJ in 1989?
Was it a slip? A moment of carelessness? A typing error? Then consider the clarification in parenthesis:
"In fact ... apart from the three judges from Malaysia (of whom I as Chairman was one)...."
But parenthetical statements, like asides sotto voce, are not the results of slips. They are, if anything, more deliberate, more artful, more attention-demanding than any direct statement they set out to qualify and clarify.
Now why did the ex-Tribunal Chairman go through all the elaborate rigmarole of explaining himself? Was it, in the end, anything more than mumbo-jumbo to bamboozle judges sitting thousands of miles away?
Or was it an effort to distort history? It was incredible!
But I have gone too far ahead of the story with these reflections upon Orwellian calculus. For the moment, then, let me say, whatever the true reason for the Judicial Tribunal in Kuala Lumpur comprising an even number of judges, the rationale offered by the authorities on the subject was hardly characterised by anything even vaguely resembling candour.
And the new Lord President knew it was all wrong! He knew that it was not internationally acceptable practice. He knew it so well that he had to fabricate this extraordinary tale of numbers to justify himself to the ICJ! And yet, when he chaired that extraordinary body called the Tribunal in Parliament House in Kuala Lumpur, he let the thought go tripping lightly past his integrity.
But one thing was certain. This "court," this Judicial TRIBUNAL UNDER ARTICLE 125(3) and (4) OF THE FEDERAL CONSTITUTION was in every way without peer in our history.