May Day For Justice
by Tun Mohamed Salleh Abas, Former Lord President, Supreme Court of Malaysia, with K Das
No man can be just who is not free. -- President Woodrow Wilson. Speech in July 1912.
This book is concerned, ultimately, with freedom.
It was written because judges in Malaysia have been deprived of their independence. And without an independent judiciary in place, all our freedoms are in jeopardy.
Freedom, of course, means more than mere independence. It implies the absolute power of self-determination, and men everywhere aim at achieving as much of this freedom as possible in their lives. This "possible" may never approximate the ideal, but the ideal nevertheless remains. It will always remain so, as much as man's quests for other seemingly unattainable ideals like truth and justice will also remain.
As for our judges, they did not seek or expect to achieve any unbridled "freedom" to exercise their powers. They only wanted, and expected, to enjoy a certain independence to function - to perform their duties without fear or favour, without interference by the Executive or anybody else. They were content to live their lives chained, as it were, and limited, by the bonds of the Constitution. Within those confines they found their sufficient independence to live and work in dignity, peace and comfort.
The Constitution of Malaysia guaranteed that independence, that limited freedom from interference, and judges took it for granted that they were secure in that guarantee. They had, after all, enjoyed this independence, despite its sometimes irritating curbs, for a long time.
But that vital part of the Constitution which gave and guaranteed that Independence has now been tampered with.
Historically the Malayan, and later, the Malaysian, Judiciary grew out of the British system which thrived here in colonial times. British judges in this country in pre-war days and in the post-war years functioned like judges in Britain, without fear of being interfered with or being abused in any way, even though their tenure of office was less secure, being subject to the pleasure of the Crown.
There was the case of Mr. Justice Edward Terrel, who was Acting Chief Justice of the former Federated Malay States. It was not really a case of "removal." Mr. Justice Terrel lost office when Malaya was overrun and occupied by the Japanese in the last World War. At the time he was on leave in Australia. His suit against the British Government for damages failed because the tenure of office of colonial judges was not dependent upon good behaviour but during pleasure of the Crown.
That was a unique case. It was the Colonial Office in action, not the British Government in its Imperial Majesty. It was not an aberration but an extraordinary exception because of the War. It was not the rule.
The judges as a community in British Malaya, then, remained independent and secure.
This happy condition obtained after Independence as well when many Malayans were elevated to high places on the Bench. When the government lost a case in court there was never any attempt to browbeat the Judiciary.
For instance, in the celebrated case involving the then Education Minister, in Abdul Rahman Talib v. Seenivasagam & Another in 1965, when the Minister lost a libel suit he filed against an Opposition Member of Parliament, he felt obliged to resign. The then Prime Minister, Tunku Abdul Rahman did not agree with the judgement of the court and he wrote to Encik Abdul Rahman Talib, saying "I [am] convinced of your innocence." What Tunku Abdul Rahman actually thought of the case or said about it in a private letter is not relevant, but there was no question of his interfering in any way with the courts or the judgement delivered by the Courts. The judgement itself stood inviolate.
For almost thirty years after Merdeka Day, which fell on 31 August, 1957, the Judiciary was treated with all the respect due to it even if the Government had occasion to be disappointed with the outcome of some cases.
An outstanding example was the case of Teh Cheng Poh v. Public Prosecutor in 1979 when Datuk (now Tun) Hussein Onn was Prime Minister. A man was sentenced to death for unlawful possession of firearms after a trial conducted in accordance with the Essential (Security Cases) (Amendment) Regulations 1975.
When the Privy Council overturned the then Federal Court decision on the matter, the Executive took what many legal luminaries regarded as drastic and regressive action. It was no joy to many that the law was changed or that (coincidentally) Privy Council appeals were abolished not long after, but the Executive action was well within its legal rights. There were debates about the ethics and morality of changing the law in the way Independence it was changed, and the Government was criticised severely both inside as well as outside Parliament for it, but the courts and the judges again remained unscathed. They were certainly not blamed. They remained independent.
The Judiciary therefore continued to function as it was meant to, applying the law, interpreting the law and dispensing justice without fear or favour. And it continued to do so until now. Those who lost cases complained, as they have always done, and will no doubt continue to do, but few doubted that justice was being done fairly. In fact there was a growing feeling that the judges were becoming visibly more independent - and unafraid to do justice according to the law. That was important: the clear public perception that justice was being done.
The first important signs of a change in the climate with respect to this independence came late in 1986 when the Supreme Court handed down a decision in the case of John Berthelsen of the Asian Wall Street Journal.
On 26 September, 1986, the Home Ministry had suspended the publication of the Asian Wall Street Journal and served a 48-hour expulsion order on one of its reporters, John Berthelsen. Another reporter from the same paper, Raphael "Rocky" Pura (then away in Hong Kong) was instructed to report to the Immigration Department upon his return to Kuala Lumpur, and was also served the order.
On the following day, 27 September 1986 the expulsion order on John Berthelsen was varied by the High Court from 48 hours to five days. The Asian Wall Street Journal challenged the Government's action in court.
The Supreme Court (coram made up of Supreme Court Judge Tan Sri Wan Suleiman Pawan Teh, Supreme Court Judge Tan Sri Eusoffe Abdoolcader and myself) ruled on 3 November that the suspension of the Asian Wall Street Journal and the expulsion of the journalists were wrong. The paper resumed publication and the expulsion orders were quashed.
Soon after this episode came the first public attack on the Judiciary.
In an interview with Time magazine, published in the issue dated 24 November, 1986, the Prime Minister, Dr. Mahathir Mohamad expressed himself very strongly in an interview headlined I Know How The People Feel:
ď.. The judiciary says [to us], 'Although you passed a law with a certain thing in mind, we think your mind is wrong, and we want to give our interpretation.' If we disagree, the courts will say, 'We will interpret your disagreement.' If we go along, we are going to lose our power of legislation. We know exactly what we want to do, but once we do it, it is interpreted in a different way, and we have no means to reinterpret it our way. If we find out that a court always throws us out on its own interpretation, if it interprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish."
Because of these remarks, Dr. Mahathir was taken to court by the Leader of the Opposition, Encik Lim Kit Siang, for alleged contempt of Court. The High Court cleared him of the charge. Encik Lim then took the case to the Supreme Court, which also cleared the Prime Minister of the charge. In his judgement the High Court Judge, Justice Datuk Harun Hashim made certain remarks and they were reported in The Star of 29 November, 1986, under the headline, Mahathir's Dilemma. The judge had dismissed the application, because, he said, the remarks "viewed objectively and as a whole, reflected a complaint against Parliament for passing laws full of loopholes." Justice Datuk Harun Hashim then commented:
"I think the Prime Minister's dilemma can be resolved simply - .f the Government is not happy with a decision of the court, then the answer is to ask Parliament to make better laws or ensure that more adequate provisions are included."
The Prime Minister, it seems, found these remarks quite unpalatable.
Was Datuk Harun in fact exceeding his role as a judge?
I think not.
For a judge does not merely decide on the merits of a case but is entitled to explain himself. From time immemorial, in every culture, judges have been teachers as well as adjudicators. A judge should, when he thinks fit, comment on the issues at hand. Perhaps I should quote a very well-known, modern authority on the subject.
"Those who comment [reporters, lawyers, members of the public, politicians, etc.] can deal faithfully with all that is done in a court of justice. They can say we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy, still less into political controversy. We must rely on our conduct itself to be its own vindication.
"Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this person or that, will deter us from doing what we believe is fair., nor, I would add, from saying what the occasion requires, provided that it impertinent to the matter in hand. "
The speaker was none other than that famous English judge, Lord Alfred Denning, delivering a judgement in a contempt case, ex parts Blackburn, in 1968. 1 think he spelt out the limits imposed upon us by the norms of civilised behaviour as well as the rights and duties of judges to say what occasion demanded. And as for what is pertinent to the matter at hand, that of course, cannot be decided by any statute law or administrative instruction. We may also note carefully here that Lord Denning made it clear that judges are not above criticism. He only asked that critics realise that judges cannot react to their criticisms or enter into controversy.
Be that as it may, given the different cultural norms we are subject to as Asians, 1 did suggest to Datuk Harun that perhaps he should not be so garrulous in his remarks from the Bench. Of course 1 did not say that he was not entitled to say what was pertinent to the issues he was dealing with.
I must correct here the rather shallow and impertinent view expressed recently that judges must not make these comments.
Doing justice is not a narrow matter of "going by the book". The judge must do more than hold the scales with a steady hand and speak with a frozen heart. He must explain, expound and inform. Judges are chosen for much more than just their legal scholarship. Indeed it is axiomatic that they are chosen because of their wisdom. There must be compassion, generosity of heart, wit and wisdom as well as deep learning. In short they must have a wide-ranging knowledge and understanding of the way of the world. So every good judgement must serve as a lesson not only to the litigants concerned but to society as a whole. If the wrong person is selected as a judge - and I fear that it does happen - it is no reflection on the ideals of what a good judge should be and do.
Now, unlike Prime Ministers in the past who may have privately disagreed with certain judgements, Dr. Mahathir went public with his disappointments and attacked the judges for what he clearly thought was behaviour exceeding their roles.
I am not suggesting - and I have never suggested it, despite some hoary arguments that were to surface shortly - that judges are beyond criticism. What human being is?
But it is one thing to criticise a Judgement and quite another to condemn a judge for trying to do his onerous job as well as he can.
The Prime Minister, however, made it very apparent by the range and scope of his criticisms that he believed that judges could not, and indeed should not, act independently. Judges had to interpret the laws, as he put it to Time magazine, "according to our wish." Independence of thinking was not an idea he associated with judges.
It also became very evident, slowly but surely, that Dr. Mahathir simply could not understand or appreciate what the concept of "independence" was, as far as the judiciary was concerned, and thus the vital importance of the concept of the "separation of powers." This concept, of course, is basic to a democratic form of Government. The Prime Minister seemed to think that judges were little more than some irritating appendages to the Executive.
The powers, of course, are separated for a very fundamental, not to say compelling, reason: to dilute power and make certain that no one can act arbitrarily against the citizen. It is the most exquisite rationale against despotism. One might say it is the answer to absolutism - whether it be royal absolutism or republican.
As a lawyer and a judge I was always concerned with the problem of the general public understanding this clearly. For the public must know its full import in a democratic system if democracy itself is to mean anything or survive.
So it was that as early as March 1984, just one month after I was appointed Lord President 1 wrote on this subject for the Third International Conference of Appellate Judges and the Conference of Commonwealth Chief Justices held in New Delhi. I then said, inter alia:
"The Judiciary accepts the laws passed by Parliament as valid and will not impugn them unless they are clearly against the provisions of the written Constitution.
"Similarly, the Judiciary will not strike down an Executive action unless it is not supported by law and the Constitution. Thus, the Judiciary's relationship with the Executive is one of mutual respect for each other's existence and responsibilities, subject only to one rider in that as a guardian of liberty it has jurisdiction to examine an Executive action to see if it is within the law and, if necessary, to pronounce a decision against such action, however unpleasant that task may be.
"Mutual respect implies a self-restraint and tolerance in each other's sphere of activities. If this respect is in any way impaired, the result could be disastrous to the country, especially to the Judiciary when its support-service, such as staff and finance is dependent upon the goodwill of the Executive.
"Denial of this support is enough to make the Judiciary ineffective and render the cherished doctrine of independence of the Judiciary a mere meaningless slogan. But if the moral authority of the Judiciary is held in high esteem by the people, that would strengthen the position of the Judiciary and would constitute a definite check against improper acts by the Executive , as the voters may well cast their verdict against the Government at the next general election.
"Thus, the relationship of the Judiciary with the Executive must in the ultimate analysis depend upon the Judiciary's own internal discipline and integrity, and also its public image so as to inspire support and acceptance by the people. The cardinal principle in the maintenance of this relationship is that the Judiciary will decline to get involved in the right and wrong of a Government policy unless citizens' rights are violated. If a judgement is pronounced against the Government, it must not be regarded as a judicial condemnation of the Government policy but rather as its protection of a citizen's right and liberty.
"To be an effective guardian of liberty, not only should the Judiciary be independent, it should also not be deprived of its role in interpreting the law and Constitution and apply it to the cases before itself. This means that access to courts shall not be denied, but kept open to citizens to lay their grievances."
There was no question that the Judiciary in our system was designed, after the British model, as a "a definite check against improper acts by the Executive", that is, against abuse of power by the Executive arm of the Government. A great many ordinary people in Malaysia, and in most developing countries, are not aware of this vital fact. Therefore, in order to develop and strengthen our democratic institutions, this message cannot be repeated often enough. Less than a year after New Delhi, on the occasion of the official opening of the Supreme Court in Kuala Lumpur I raised the subject again:
"If justice is administered properly, the public confidence in the system is assured, but if it is not, the public confidence is eroded and people are likely to resort to measures of self help in order to settle their disputes, and if these incidents occur too frequently national unity and political stability which hold the nation together will be in jeopardy. It is as simple as that.
"Thus an independent Judiciary is the key to national unity and progress, especially when it is comprised of men of high honour and integrity and men with a sense of responsibility and loyalty who are there to do justice according to law and according to the Oath of office which they have taken."
These ideas are not new, not revolutionary. They are perhaps as old as civilisation itself. But they have to be repeated from time to time, and judges throughout the ages have done so, because every generation must be made aware of their importance. Public awareness of this is, without doubt, the key to the liberty, peace and happiness of the citizen. Without an independent and courageous Judiciary the citizen cannot feel safe against capricious officials or the resulting arbitrary rule, for there will be no one to turn to against the onslaught of such an intimidating thing as the Government machine.
In the more mature societies a long history of public debate on citizenís rights have made the people very conscious of their rights, and the role the Judiciary plays in preserving these rights, that is, their freedoms. This is not the case in developing countries such as ours. That is why judges must do more than simply adjudicate.
Judges must also act as teachers in those societies still struggling to emerge from the soul-strangling psychological cocoon of another era - to take their place in the modem world.
Race memories of ancient norms and arbitrary rule still help preserve old fears. Old proverbs teach children at their mothers' knees that "Kecil-kecil anak harimau," implying, "Though he is tiny, he is a royal tiger cub and must be respected;" or "Punggur rebah, belatuk menumpang mati," suggesting "When the chief falls ruin comes to his followers." The Tamil people say, "What difference does it make whether Sri Rama rules or the ogre King Ravana rules?" implying helplessness against any and every ruler, whether he be benevolent or malevolent.
These traditional notions of the subject's relationship with rulers easily translated to mean others, besides hereditary Kings and sultans, who wield power - still haunt society. Russian peasants descended from the Czars' serfs - 70 years after the Bolshevik Revolution - remain terrified of the members of the Politburo as well as petty officials - glasnost and perestroika notwithstanding. Descendants of the Indian Maharajahs' retainers fold their arms and look at the ground when they stand before any minor Government official or Cabinet Minister. They are terrified of even policemen. It is not so very different in Malaysia. The subject is often unaware that the world has changed, and that protective devices against arbitrary rule have been created and enshrined in the Constitution for his security, welfare and happiness. Even in New York and Chicago free citizens still complain disconsolately that, "You cannot beat City Hall," implying that the rulers somehow always have the upper hand. Ancient fears are not easy to dispel . An old English saying, derived from ancient Greek is, "Kings have long arms."
It all takes time.
There are those marvellous lines from Shakespeare's King Richard II:
"Not all the water of the rough rude sea Can wash the balm off from an anointed King."
The lines were written in 1595-96, almost 400 years after Magna Carta was first signed. For centuries it was English wisdom that "The King can do no wrong." Yet as recently as 1981 it had to be explained again to a population already well imbued with the democratic impulse and spirit, that the King pan indeed do no wrong, but for very different reasons, as the London Times did in an editorial:
"The Queen has no power but some influence. [She] can do no wrong. The ministers are responsible."
There is no arbitrary power left with Constitutional monarchs. The Queen was no longer capable of doing a wrong because she has no power to. As far back as 1605, a Polish politician, Jan Zamoyski put it very neatly:
"'The King reigns, but does not govern."
Who but judges in courts of law, doing justice in full public view, can explain these things to the people at large with more knowledge and more authority, on a continuing basis? 1 myself made it my business, over a long period, to play whatever role 1 could in the process of this education, this creation of a public awareness of the rights of subjects and the range and variety of protective machinery available to him. So did many Malaysian judges. How important this public awareness is became very clear to Malaysians after the John Berthelsen case. They were also to learn that the naked Constitution is no protection against capricious action or arbitrary rule by the authorities. For without independent judges on the bench, that sacred instrument itself is not safe.