May Day For Justice
by Tun Mohamed Salleh Abas, Former Lord President, Supreme Court of Malaysia, with K Das
LEGAL - POLITICAL CHAOS
The law hath not been dead, though it hath slept. William Shakespeare., Measure For Measure, Act II, SC 2.
While the Judiciary and the legal profession were preoccupied with the threat to the legal system of the land, for the people at large there was a yet greater drama to engage their full attention. That this drama was inextricably linked to the fate of the Judiciary was to become clear only later.
On 24 April, 1987, the key member of the ruling Barisan Nasional the United Malays National Organisation held its Annual General Assembly and triennial Party election. The Prime Minister, Datuk Seri Dr. Mahathir Mohamad, faced his first party election in 12 years, having been regularly promoted through patronage and internal party arrangements (which really meant being elected unopposed), after the 1975 UMNO election.
The politics of the Malays, particularly UMNO politics, had undergone a sea change in the few years of the Mahathir stewardship, and the incumbent party president was challenged for the second time in 41 years. The first challenge had been a dull affair in which Datuk (now Tun) Hussein Onn had been opposed by a minor party official named Sulaiman Palestin. (Another President, Tunku Abdul Rahman had also been challenged by one C. M. Yusof, (later Tan Sri and Speaker of the Lower House) in the early 1950s but the Tunku was then only the care-taker President, not properly the incumbent.)
The 1987 contest was a vastly different matter. Dr. Mahathir was opposed by his very popular former Finance Minister, Tengku Razaleigh Hamzah.
In the event, Dr. Mahathir was returned to office after a long, intense, not to say vicious campaign, as President. But it was with such a minuscule majority that there were immediate questions about the value, not to say validity, of his mandate.
Dr. Mahathir had not only barely scraped in, defeating his opponent, Tengku Razaleigh with a majority of 43 (761 against 718 votes), but there were now allegations that several delegates who had voted were drawn from UMNO branches not properly registered under The Societies Act, 1966. There were also several unproved allegations being bandied about that the balloting process had not been above board.
On 25 June, 1987, an appeal was filed by 12 of the UMNO delegates (one of whom, Encik Hussain bin Manap, withdrew unexpectedly in August) to have the assembly and the election of April 1987 declared null. The remaining litigants have since become famous as the "UMNO 11."
It was a very serious matter and the courts did not regard it lightly. If the election were indeed declared null, a fresh election would have to be held, and Dr. Mahathir might well be defeated. The courts, with the best will in the world, could and would be perceived as entering an area bristling with a great variety of political problems. It was necessary to be extremely cautious.
And the concern was not misplaced, as we shall see.
After a series of interlocutory hearings over the discovery of documents - and that took more than seven months - the matter finally came before Justice Harun Hashim in the Kuala Lumpur High Court, on 4 February, 1988.
The judge then ruled that under the existing law he had no option but to find the party, UMNO, to be an unlawful society. The question of the Assembly itself being illegal therefore became academic.
The effect of the ruling was electrifying.
It is no exaggeration to say that the country, and more importantly, UMNO, went into a state of shock. What the party members faced was complete chaos in the vast organisation consisting of some 8,000 branches and assets worth hundreds of millions of dollars.
The Far Eastern Economic Review of 18 February, 1988, reported the consequent situation in the country as one of "legal-political chaos". The paper went on:
"The startling finding emerged in a case in which 11 disgruntled UMNO members... sought to have the April party election declared null and void. The court dismissed the suit on the grounds that the whole 42-year-old party, which has been the dominant member of Malaysia's ruling coalition since independence, was unlawful because it had 30 branches not registered under the Societies Act.
"This automatically rendered null the last party election, but it did not legally entail that the pre-election party hierarchy ... should now be back in place, because it was unclear exactly when the illegal branches had been formed.
"'It is a very hard decision to declare UMNO unlawful,' said Justice Datuk Harun Hashim in his 4 February judgement. 'But the law was made by our Parliament and certainly UMNO was aware [of the Societies Act] because they were in the majority [in Parliament] at all times [when the law was made].' It seemed the case of the kris (a Malay dagger) turning on its owner, he added. Under the 1966 Act, amended five times over the years, and most recently by Mahathir’s government, each of the society's branches has to register separately with the Registrar....
"During the final High Court hearing the plaintiffs' counsel, Raja Aziz Addruse clearly wanted only the UMNO election declared void, and not the whole party to be deemed illegal."
But the plea by Raja Aziz fell on deaf ears. For some mysterious (and to many, suspicious) reason the defendants did not apply to separate or sever the two issues (die party election and the status of the party), and the court appeared to have had little choice but to adhere to the clear provisions of the Act.
In the immediate aftermath of the history-making decision, there were those who declared that the Prime Minister must resign, as a matter of honour. As party President for the preceding six years he was responsible for the proper running of the party, and he had quite clearly failed. The party's disaster, it was said openly, was his disaster.
In other modern democracies a political catastrophe of this magnitude would have resulted in the immediate resignation of the party's President and thus the Prime Minister. (By a convention, sanctified by 30 years of usage, the UMNO President automatically becomes Prime Minister of Malaysia. The idea is no longer disputed openly).
But Dr. Mahathir did not resign.
On the contrary he quickly drew the distinction between Government and party, and informed the country on the next day, 5 February, that his Government would continue to run the nation. So long as there was no Parliamentary vote of no confidence in his Government, it seemed, he would simply carry on.
For several days after that we witnessed on national television unprecedented scenes of party members in large groups swearing loyalty to the Prime Minister. There was no formal vote of confidence in Parliament even though the Leader of the Opposition, Encik Lim Kit Siang, specifically called for one. On the other hand, there were public declarations of loyalty to the person of the leader of the now legally defunct party.
The first Prime Minister, Tunku Abdul Rahman, also said publicly that there must be a vote in Parliament to establish Dr. Mahathir's legitimacy as leader of the House, but that respected voice was also ignored.
For a time there was a general assumption that the President or Secretary-General of the now defunct UMNO would appeal against the decision of the High Court. But there was no appeal. It was argued that the defendants had not lost their case. So what was there to appeal against? On the contrary, the plaintiffs had lost their case.
The plaintiffs' riposte to that bit of empty posturing was that the defendants had indeed not lost the case; they had won the case, they had only lost the party. But it was very much a pyrrhic victory. They had won the contention and lost the bone of contention UMNO.
Thus it came about that it was the plaintiffs who had to appeal to the Supreme Court. They wanted the 1987 UMNO election declared illegal and the party itself declared lawful.
Dr. Mahathir, on the other hand, showed no interest in reviving his party. Instead he set in motion the machinery to form a new surrogate party, and in due course, registered a party formally called Pertubuhan Kebangsaan Melayu Bersatu (Baru) or UMNO. His opponents headed by Tengku Razaleigh, who tried two days earlier to register another party called UMNO Malaysia, failed to satisfy the Registrar of Societies, and were turned down. (The Registrar of Societies, one Puan Zaldah Hashim, it was noted, headed the relevant Department in the Home Ministry, one of Dr. Mahathir's portfolios. The Minister was her boss.)
A year later Tunku Abdul Rahman was to write, in an article for Aliran Monthly, titled, Carrying The Joke Too Far:
"The present UMNO of Dr. Mahathir was formed through his own connivance to take over power after he had been discredited as UMNO leader at the General Assembly 1987."
These unsavoury events of April 1987 set in train several law suits, so that by May 1988 the court calendars were being rapidly filled with a plethora of "UMNO cases". Opponents of the Prime Minister wanted the old UMNO revived and made every effort to hinder the progress of the new party's formation. They argued that the new party could not use the old name since it was not substantially different from the defunct old UMNO. But the main case was the appeal in the Supreme Court to declare the 1987 election alone illegal and the party itself not an unlawful society.
The relevance of this important political episode to my own narrative is that the UMNO cases became a point of great contention when the charge of "misbehaviour" was first brought up against me. Indeed, it proved central to the problem I was eventually faced with.
The UMNO saga, in fact, lies at the heart of my story.
The Prime Minister had first accused me of having shown bias in UMNO cases and I had to deny the allegation most vigorously. For reasons best left for later comment, he publicly denied having raised the matter with me at all!
The simple fact is that at the time of the UMNO decision of 4 February in the Kuala Lumpur High Court I had not the faintest suspicion that the Prime Minister nursed such ideas about me. Perhaps he did not. The change, it seems more likely, came only when it became apparent that 1 would have to play a key role in resolving the legal-political chaos the system found itself in.
At the time of the UMNO decision in the High Court in February, however, we were still preoccupied with the rumoured plans to amend the Constitution to circumscribe judicial independence. It was with these thoughts in mind that 1 spoke at the International Conference on Constitutional Principles in Manila on 20 February. And I addressed myself to the question of why written constitutions in developing countries do not endure, and in my argument I again raised the question of who should be the interpreters of these constitutions. I confess it is a subject close to my heart:
"... every political settlement, which is what a Constitution is, if it is to retain its sacredness, and to have a lasting effect, must of necessity be one which the local inhabitants freely accept and not one which they feel has been imposed on them or one grudgingly given. In other words, it must be such as to reflect a general consensus of the communities as opposed to acceptance by a particular group or a particular community only.
"The next question is who should interpret this general consensus? Should it be left to the politicians whose views are always coloured by party interests? or should it be entrusted to an unbiased interpretation of judges? The politicians claim their right to interpret, because they say the constitution is a political document, whilst lawyers will argue back and say a constitution is an agreement, and being an agreement it is a legal document and therefore should be subject to judicial interpretation.
"The ultimate answer to these competing claims lies somewhere between the two - in other words, it is a sort of compromise. In working out the strategy of this compromise the court is careful to adopt an attitude that it will decline to decide on matters of pure policy as these belong to the province of the executive and politicians, but it will act if matters of policy are also matters of law.
"The boundary lines between these two provinces has never been clear. In a less politically mature society, a court's decision in this grey area of politics and law could create a great deal of tension to an otherwise amicable relationship between the Judiciary and Executive, if the decision goes against the Executive, as it could be misinterpreted that judges are inimical to the Executive. In such an atmosphere the Judiciary's function as the interpreter and guardian of the Constitution - which in mature societies has been accepted without question - will become threatened.
"It is therefore important that there be a proper understanding of the function of the Judiciary on the one hand and that of the Executive on the other. No one would be able to chart these boundary lines with exact certainty, but the politicians and the people must have confidence in judges to plot and demarcate the boundary lines step by step as the society grows and goes on developing and evolving. If there is no such trust the life of the Constitution itself will be in danger.
"Most newly developing countries place a very high premium upon political stability and economic development. Amelioration of the standard of living, eradication of poverty, industrialisation of the economy, modernisation of agriculture and scores of other economic projects are the very objectives of their independence. All these will not be possible unless the country is relatively stable politically.
"Thus public order and tranquillity are seen as an important means to achieve all these economic and social objectives. These in turn have been made possible by the continuance in power of the same political party which had won independence earlier on. The expressions commonly associated with the Westminster model of constitution - 'the Executive is under the control of Parliament' and 'while the Minister may come and go, civil servants remain' are no longer apt t(-, describe the relationship between the Executive and the Legislature, and that between the civil servants and their political masters. The position can now be accurately described the other way around, i.e., that Parliament is not in control, but the Executive is, and that civil servants are no longer permanent, but Ministers are.
"It is this new phenomenon - a phenomenon of the pre-eminent position held by politicians, particularly those in the Government Benches, because of their power, influence and prestige, due to the roles they play in international affairs, defence and economic development, coupled with electoral victory at the general elections - that gives rise to some problems in the relationship between the Executive and the Judiciary. In their perception, law, as hitherto interpreted by judges, is dilatory and impedes economic development, and as the Executive is placed in power by the electorate, the law so interpreted is militating against the intention of the Executive and the Legislature, and finally against the will of the people. This claim seems to be nothing more than a hollow demand that the Executive and the Legislature should be judges of their own powers. Such a claim is certainly reminiscent of the divine power of the king who demanded absolute obedience to his commands.
"From what I have described it can be seen that the transplanting of the Westminster type of constitution in many developing countries is not without defects. Indeed the wheel has turned full circle. It is true that the Legislature makes the law, but the law made by it is at best a mere form and has no substance until applied and interpreted by the court in concrete cases. It is like a ship. What makes it move to reach a particular destination is not its builder but its skipper and his crew. Similarly, law as enacted is merely a dead letter, and unless life and soul are breathed into it by application and judicial interpretation, it remains lifeless. Take away the interpretation, the law will be nothing but a body without a soul. The soul of law does not lie in the maker of the law nor in the breasts of judges but in the intelligible reasoning and learning based upon principles handed down from generation to generation.
"In this connection it is essential for the Judiciary to adopt a proper attitude which calls for maturity and wisdom. It cannot be so liberal as to adopt unwarranted judicial activism, nor should it be too restrained as if the law remains at a standstill for all time. A balance must be struck somewhere between these two extreme poles. If the Judiciary can play this role irrespective of criticisms levelled against it, or praises extolled in its favour, the constitution in any developing country will be assured of celebrating at least the first fiftieth anniversary of its founding ...."
Less than a month after that Manila conference the worst fears of the Judiciary were realised when Parliament made one of its most far-reaching amendments to the Constitution. For on 18 March, the Federal Constitution was amended yet again, this time the changes being aimed directly at the Judiciary. My comments on the occasion should perhaps be preceded by remarks made by others in the country. For these people, not being judges, can be considered more objective on the subject while it might be argued that members of the Judiciary may have been embittered by the turn of events - and indeed many were. The Executive Committee of the reform movement, Aliran, reacted with this statement on 19 March:
"There was a solar eclipse on 18 March, 1988. It was also the day that the authority of the Judiciary was eclipsed by the brute power of the Barisan dominated Legislature.
"Perhaps the Barisan Nasional members did not realise what they had done. By assisting the Executive to destroy the authority and independence of the Judiciary, each and every one of the 142 MPs who voted for the amendment of Article 12 1, is guilty of betraying his or her oath of allegiance to the Constitution. For they have a legal and moral obligation to protect and defend the Constitution of the land.
"However the greatest burden of guilt will have to be borne by the Prime Minister himself His oath of office as Prime Minister places him under the obligation to defend the Constitution. And yet he, as the head of Government, has seen it fit to introduce a scandalous piece of legislation which makes the Judiciary subordinate to the Legislature, and more accurately, the Executive.
"There is only one reason why Dr Mahathir Mohamad wants to curb the Judiciary. He does not want an institution, or an individual for that matter, to check him as he exercises his vast powers. He does not want the courts to scrutinise his laws to see whether they are in harmony with the letter and spirit of the Constitution. He does not want the judges to examine his actions and those of his ministers, to determine whether any injustice has been committed. To put it simply, he does not want institutions like the Judiciary, to ensure that he is accountable - accountable to the Constitution, to democratic values and principles and to the people.
"It is the blow struck at the principle of democratic accountability that is the most tragic consequence of the amendment to Article 121. In the situation that has developed in our country since the 27 October affair [Operation Lalang], it is only the Judiciary which has been able to check, to a limited extent, the excesses committed by the Mahathir Government. This was clearly demonstrated in the Karpal Singh case, and now the Judiciary has been constitutionally castrated."
I might note here that the Karpal Singh case referred to was his successful application for a writ of habeas corpus on 9 March, 1988, in the Ipoh High Court before Justice Peh Swee Chin. Encik Karpal Singh, however, was re-arrested on his way home, at Nibong Tebal 9 hours later, and detained, again under the ISA. He filed an appeal against the re-arrest, and that case now lay before the Supreme Court.
The re-arrest, of course, was a clear affront to the Judiciary. But even more importantly, it showed a contempt for the Rule of Law as such. A moral, ethical, legal and constitutional course of action would have been for the Government to first appeal against the Ipoh High Court decision. But nine days before those new and far-reaching Constitutional Amendments were made in Parliament, the Executive made it clear in Nibong Tebal that respect for the Rule of Law, let alone the Judiciary, was not one of the principles it observed in conducting its affairs. The re-arrest was fully within the legal powers of the Executive, but nonetheless it was a rude gesture. Put another way, as Tunku Abdul Rahman has put it, 'It was legal, but was it just?
Politeness, of course, begets politeness, and disrespect can only generate disrespect, and rudeness clamours for rudeness. The Constitutional Amendment, to many people, represented shockingly rude behaviour. Some of the comments made by a good many people are in fact unprintable. One of the milder remarks was that the Constitution had been raped once again. But the general indignation felt by thinking people was well expressed in the speech made by the outgoing President of the Bar Council, Encik Cumaraswamy on 19 March, 1988. He said:
"Just on the eve of my retirement from the Presidency we saw one of the basic structures of our Constitution destroyed.
"The balance between the Executive, Legislative and the Judiciary is rudely shaken, and the Executive at the centre gains enormously in power at the expense of the Judiciary.
"The reasons given in Parliament for the amendment were most astonishing. The Prime Minister's vile and contemptuous allegations, and the accusations levelled at the Judiciary and our judges left many shocked beyond belief. His speech which was full of venom, hate and spite with no substance whatsoever, illustrated his complete and total ignorance of the role of the Judiciary and the judicial process itself.
"What he may not have realised is that in directing all those attacks on our judges he has in fact thrown his might not so much against His Majesty’s judges but against the majesty of the Law, Justice and the Constitution. Far from defining clearly the duties and functions of each arm of the Government, he has caused confusion.
"He has indeed defiled and defaced the Constitution.
"And his onslaught on the application of the rules of natural justice by the courts is somewhat surprising. Just two years ago he referred to these rules in a letter to former Auditor-General, Tan Sri Ahmad Noordin Zakaria and criticised him for failing to give certain individuals named in the BMF report the right to be heard to clear themselves. In that letter he said:
"'You have created doubts and suspicion about them without their being able to clear themselves. It is elementary justice that people must be allowed to give their side of the story.'
"I cannot possibly understand why he gets so offended when the courts in their rightful role apply these same principles, which he called 'elementary justice' to test the legality of ministerial decisions. He is obviously applying double standards ....
"It is surprising that those 142 Members of Parliament who voted in favour, after taking the oath that they would preserve, protect and defend the Constitution, had no compunction about destroying one of its basic structures.
"I am particularly disappointed with our lawyer MPs. I am sure in their own minds they knew what was done was all wrong. But why they didn't have the moral courage to oppose the move? What we need in Parliament are MPs who are forward-looking and not those who look forward.
"Unlike Parliament in Britain where there is no written Constitution, the Malaysian Parliament is not supreme. Here it is the Constitution which is supreme. This difference must at all times be borne in mind. Parliament being a creature of the Constitution its amending power must necessarily by implication be limited. How can a donee of a limited power enlarge its own power to change the basic structure of the donor?
"Though we may be able to excuse the Prime Minister who is a medical doctor for his ignorance yet we certainly cannot excuse his legal advisers. What is depressing is that by these amendments the power of the Attorney-General is now enhanced and entrenched in the Constitution at the expense of the judicial power. He will soon seek legislative powers to direct his prosecutions to be heard before courts of his choice, a power which the Supreme Court last year held as exclusively theirs under Article 12 1.
"What is more depressing is that these amendments which go to the heart of our system of Government were passed with lightning speed - with about three hours debate in the Dewan Rakyat - with not much time given to public debate, if at all that was possible. Yet the Prime Minister could assert in his speech, that our laws were formulated through "lengthy, in-depth debate." A visiting Parliamentarian from Europe who read all about it in Kuala Lumpur told him that he was amazed at the speed with which Constitutional amendments were passed here. In his country it would have taken years.
'It is deplorable that such far-reaching amendments were passed by the Dewan when the Leader of the Opposition and six other vocal MPs in the Opposition were under ministerial detention, thereby depriving 594,400 voters of representation in the same Dewan. That is about 10% of the total electorate in the country. Three newspapers remain banned thereby giving no room for any public debate. In those circumstances, how the Government can call itself a Parliamentary democracy is something beyond belief."
It was a sad occasion. Matters had gone beyond the very worst fears we had entertained. To say that the judicial and legal community was in a state of dismay would be to understate the case badly. The Judiciary, given our Constitutional status - or whatever remained of it - had to continue to exercise great restraint and propriety. But I was still obliged, as Lord President, to express my misgivings, and I did so, as follows:
"The court does not exist for the sake of the judges, nor do judges exist for the sake of the court. Both exist for the sake of justice. The history of mankind is full of instances both happy and sad, of man's struggle in search of justice, such as war and peace, benevolence and tyranny, order and anarchy. All these were done by men in the name of justice. Yet no one has ever been able to find the true meaning of justice in human terms. But there are institutions which are universally thought of as being capable of at least approximating justice.
"A society may do anything to its [law] court - demolish it, truncate it, decapitate it or weaken it in any way - but the flame of justice can never be extinguished in the hearts and minds of the subjects. I do not wish to quote Western scholars and philosophers like Aristotle and Plato and generations of fathers of other modern "isms". But in line with the often stated objective of absorbing Islamic values I wish to rest my quest for authority in no other source that the Holy Quran itself.
"In Islam a valuable right given to men, and to Muslims in particular, is the right to justice.
"In Chapter 5 verse 3: 'Do not let your hatred of a people incite you to aggression. ‘In Chapter 5 Verse 9: '0 ye who believe! Stand out firmly for God as witnesses to fair dealing, and let not the hatred of others make you swerve to wrong and depart from justice. Be just: that is next to piety; and fear God. For God is well-acquainted with all that ye do.' .
"This is repeated in Chapter 4, Verse 135: '0 ye who believe! Stand out firmly for justice, as witnesses to God, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for God can protect both. Follow not the lusts (of your hearts) lest ye swerve, and if you distort Justice) or decline to do justice, verily God is well-acquainted with all that ye do.'
"As witness to God' is an article of faith ensuring that those in power should not feel that they had full power. Ibis is in clear contrast from the secular doctrine of the 'will of the people' which in practical terms is the will of those in authority.
"In Islam equality before the law is not limited to between subject and subject, but also between subjects and rulers. Here 1 quote a case during Khaliff Umar:
"At that time Egypt was governed by a Governor named Amr bin AI-As. The subject matter of the case was that the Governor’s son had whipped an Egyptian subject who had sustained some personal injuries. The Egyptian laid a complaint to the Khaliff in Medina whereupon the Khaliff summoned the Governor and his son to his presence. After hearing both sides the Khaliff gave the whip to the Egyptian and asked him to strike the Governor's son. After this had been done the Khaliff said to the Egyptian: 'Give the honourable Governor a stroke as well, because the son certainly would not have beaten you were it not for the false pride that he had in his father's office. ‘The Egyptian replied, '0 Commander of the Faithful, I have already to avenged myself on the person who had beaten me and I do not wish avenge myself on his father. ‘Then the Khaliff replied: 'By God, if you had beaten him (the father) I would not have checked you for doing so. You have spared him of your free will.' Then the Khaliff turned to the Governor and said angrily: '0 Amr, when did you start to enslave the people though they were born free of their mothers?'
"The verses 1 have quoted and the short instance I have mentioned clearly go to show that the spirit of justice lies in ordering the relationships between man and man be they rulers or subjects, poor or rich, noble or humble. Historically they come from the same parents as stated in the Holy Quran, Chapter 49, Verse 13:
'0 mankind! We created you from a single (pair) of a male and a female, and made you into nations and tribes, that ye may know each other (not that ye may despise each other). Verily the most honoured of you in the sight of God is (he who is) the most righteous of you. And God has full knowledge and is well acquainted (with all things).'
"Based on those texts the late Abdul A’la Mawdudi, one of the greatest Muslim ulamaks of the present century said: 'In Islam the Judiciary is not placed under control of the Executive. It derives its authority directly from the syari'a and is answerable to God. The judges are appointed by the Government but once a judge occupies the bench he has to administer justice impartially according to the law of God; the organs and functionaries of the Government are not outside his legal jurisdiction, so that even the highest Executive authority of the Government is liable to be called upon to appear in a court of law as plaintiff or defendant. Rulers and ruled are subject to the same law and there can be no discrimination on the basis of position, power or privilege. Islam stands for equality and scrupulously adheres to this principle in social, economic and political realms alike.'
"This is not a very happy occasion for me to make a speech. This week and in particularly today is full of events and all that I can say here is that I am deeply concerned at the turn of events and controversies surrounding our institutions."
Was the Parliamentary assault on the Constitution and on the Judiciary a direct result of the historic High Court decision of 4 February, 1988? 'Mere now seemed to be overwhelming evidence that it was, but as judges we could neither comment nor act on that assumption.
But the attack was real enough and dangerous enough to make judges feel the time had come to take some kind of public position. And the first concerted action came as a result of what I would describe as an agitated letter from one of my colleagues, the High Court Judge, Justice Abdul Razak Abu Samah.
His patience was reaching its end. The Prime Minister, in his view, had finally exceeded all bounds of propriety and gone completely overboard.