Review 1988 sacking of judges?

Bar Council president Yeo Yang Poh issued a statement calling for a thorough review of the 1988 sacking of the three judges, during the tenure of then Prime Minister Dr Mahathir Mohamad.

The three judges sacked for misconduct by a special tribunal set up by the government then were former Lord President Salleh Abas and Federal Court Judges George Seah and Wan Suleiman Pawanteh.

Describing the incident as the "darkest days for the Malaysian judiciary", Yeo said an impartial re-examination of the attack by the Executive then on the judiciary was necessary to restore the honour of the judges.

The Bar Council said the on-going criticism by Dr Mahathir against the current administration had rekindled discussions of the numerous deeds and misdeeds of the government under more than two decades of the previous leadership.

Let's see what the de facto law minister at today's PM's Office say. Undo past wrongs now? Or perpetuate the same old, same old workings of Executive presiding over Judiciary?

Contributed by Yeo Yang Poh

Wednesday, 16 August 2006, 06:30am

The on-going allegations by the former prime minister against the current Prime Minister, when rid of all its political trappings, do summon attention to important issues such as the freedom of speech and of information, freedom of the press, corruption, accountability, and the like. In addition to drawing attention to what is currently taking place, it has also rekindled discussion of the numerous deeds and misdeeds of the government under more than 2 decades of the previous leadership. A number of commentators have already pointed out that, while Malaysians support the call for greater freedom, it is ironic that this call should come from the very person who placed tight and suffocating shackles on various forms of freedom during his time, and who was responsible for developing and fostering an environment steeped in intolerance and fear. The system and the environment that the former prime minister now vehemently attacks are not the new creation of the present Prime Minister. The current leadership in the last 3 years has to some extent loosened a few of the handcuffs on society inherited from before. The proper criticism should be that not enough is being done to quickly undo all the wrongs committed in the past in various areas of governance. One colossal mistake of yesteryears that has brought disastrous damage to democracy and the rule of law in this country, and one which the Malaysian Bar has for many years stood firmly against, is the shameful episodes that took place in 1988, when the institution of the Judiciary was unjustifiably but successfully attacked by the Executive, resulting in the glaringly unfair and unceremonious dismissal of 3 of our top judges, injuring many more. Those were the darkest days for the Malaysian Judiciary. Those were the sickest hours of Executive incursion into the Judiciary. The concept of separation of powers was discarded like a piece of dirty tissue. The independence of the Judiciary was trampled upon like some disused doormat. Those shameful events have left gaping wounds in the Malaysian society, from which we are yet to fully recover. The wounds have neither healed nor closed. Society has suffered, and will continue to suffer, from the gross injustice some 18 years ago, that has given birth to other injustices. Our justice system is not what it once was. It is time to right the wrongs of the past. We can undo the damage caused, but only if we confront and deal with the errors of the past, no matter how painful the process may prove. It will do us no good if we continue to sweep things under the carpet, and pretend that calamity never struck. The Bar Council calls upon the Government to take immediate steps to cause a thorough and impartial re-examination of the events of 1988 to be carried out, with the view to uncovering the truth, leaving no stone unturned, correcting the errors and injustices perpetrated, and restoring the honour of the judges who for no more than asserting their independence were so cruelly sacrificed at the altar of political power play. It is time to return to them the good name they never deserved to lose, and to make amends for what they had lost for no fault of their own. This is absolutely crucial, not just for those judges and others who have suffered at the unseen hands of the perversion of justice. This is equally important for the institution of the Judiciary, and indeed for the nation as a whole. History requires the truth, and society demands what is just. If an independent Judiciary can be savagely destroyed, and if those who engineered or allowed the destruction can get away with it forever, then the rest of society has little hope for justice. Yeo Yang Poh President Malaysian Bar 15 August 2006

Background of the 1988 Sacking of Judges

Judiciary crisis in Malaysia

In 1987, elections for the leadership of the United Malays National Organisation (UMNO) were held. UMNO was the leader of the governing Barisan Nasional (BN) coalition, and its President would automatically become Prime Minister of Malaysia. Tengku Razaleigh Hamzah challenged the incumbent UMNO President and Prime Minister Mahathir bin Mohamad, and was widely touted to win the Presidency. However, Mahathir won 761 votes to Razaleigh's 718, and remained President. Many of Razaleigh's supporters refused to accept this, and argued that the election was tainted. ^[2] 12 UMNO members filed suit in the High Court, attempting to get a court order for new elections. As part of their evidence, they presented claims that 78 of the 1,479 delegates eligible to vote in the elections were illegal, and that several documents involved in the election had been tampered with. Later, one of the 12 plaintiffs withdrew from the suit. Although Razaleigh was not involved in the case, it was widely believed he had been funding and supporting the suit. ^[3]

On September 30, 1987, the High Court gave the parties two weeks to reach a negotiated settlement. A "Unity Panel" was formed to negotiate between the Mahathir and Razaleigh camps, but it soon appeared the differences were interminable. Razaleigh's supporters wanted new elections held, while Mahathir's supporters insisted that the elections stand and that Razaleigh's camp accept a compromise "face-saving" solution. On October 19, the plaintiffs announced the suit would continue. ^[4]

Mahathir, who had never been fond of the judiciary, began making heated statements about it at this time. Mahathir declared, "The judiciary says, 'Although you passed a law with a certain thing in mind, we think that your mind is wrong, and we want to give our interpretation.' If we disagree, the courts will say, 'We will interpret your disagreement.' ... We know exactly what we want to do, but once we do it, it is interpreted in a different way. " Mahathir also lambasted "black sheep ... who want to be ... fiercely independent" and play to public opinion. Soon after, nine judges sitting on the High Court were reassigned to different divisions; Justice Harun Hashim, who presided over the UMNO case, was transferred from appellate and special powers cases to commercial crimes. However, because the UMNO case was already in progress, his transfer would not take effect until the case closed. Harun later ruled that under the evidence presented, it was clear several UMNO delegates had come from unregistered branches of the party. In line with the law, he declared he was forced to declare UMNO an illegal society, and thereby dismissed the case of the plaintiffs. Mahathir soon formed a new party, UMNO Baru (New UMNO), to replace UMNO. Within a year, the suffix "Baru" was dropped, making it just plain "UMNO". ^[5]

Mahathir was upset with the judiciary's increasing independence, and in 1988, the government tabled a bill in Parliament to amend Articles 121 and 145 of the Constitution. These amendments disvested the courts of the "judicial power of the Federation", giving them only such power as Parliament might grant them. The Attorney-General was also empowered to determine the venues in which cases would be heard. ^[6]

At this point, Salleh Abas, who was then Lord President of the Supreme Court, began making strong statements about defending the autonomy of the judiciary. However, he did not name Mahathir, and spoke in rather general terms. However, Salleh was pressured by his fellow judges into taking stronger action. He convened a meeting of all 20 federal judges in the national capital of Kuala Lumpur. They decided not to directly challenge Mahathir, and instead address a confidential letter to the Yang di-Pertuan Agong (King) and the rulers of the various states. The letter stated, "All of us are disappointed with the various comments and accusations made by the Honourable Prime Minister against the Judiciary, not only outside but within the Parliament. " However, instead of calling for any direct action to be taken, the letter only stated the judges' "hope that all those unfounded accusations will be stopped". ^[7]

Ironically, the then King, who was also the Sultan of Johor — Sultan Mahmood Iskandar Shah —, who as heir apparent to the Johor throne had been prosecuted by Salleh Abas when he was Public Prosecutor. The Sultan was eventually convicted of homicide and sentenced to six months in jail. It is not known what the King did upon receipt of the letter, but it appears he informed Mahathir, and that they agreed to take disciplinary action against Salleh Abas. Salleh, who had gone overseas soon after the letter was sent, was summoned by Mahathir upon his return. Salleh later claimed that at the meeting, Mahathir accused him of bias in the UMNO case, and demanded his resignation. Salleh was also immediately suspended from his post as Lord President. Although Salleh initially agreed, when he was later informed that his suspension would be backdated so as to nullify some of his earlier actions in then pending cases such as the UMNO case, he withdrew his resignation. The government then initiated impeachment proceedings against Salleh. ^[8] Salleh would later claim that the government attempted to bribe him to resign.^[9]

Under the Constitution, judges are impeached by a special tribunal of judges, appointed by the government. Four Malaysian judges, a Sri Lankan judge, and a Singaporean judge were appointed to form a six-member tribunal that would hear the case. The tribunal chairman was Justice Abdul Hamid Omar, who was appointed as acting Lord President due to Salleh's suspension. Salleh was officially charged with writing " a letter to the Agong without approval of all judges in the country", displaying "bias and prejudice" against the government, and seeking "to undermine public confidence in the government's administration ". In addition, the government took issue with a ruling Salleh had made in a case involving a minor's religion, and a statement he had made to the media after his suspension, which allegedly was "calculated to politicise the issues and further discredit the government". ^[8]

Salleh was represented by Anthony Lester, QC, who objected to the tribunal's composition. It was argued Abdul Hamid had a vested interest in the case's outcome, since if Salleh was impeached, he would remain Lord President. It was also claimed that the tribunal was improperly constituted because two of the judges were relatively junior, and that the two foreign judges were from countries not noted for judicial independence. Salleh demanded to be tried by peers of equal standing — retired Lord Presidents, if need be. He also demanded that the tribunal make its hearings public. All of these claims were rejected by the tribunal, and Salleh withdrew from the proceedings. ^[10]

Instead, Salleh asked the Supreme Court to stay the proceedings because of the tribunal's alleged improper constitution and because the King had been "wrongfully advised". The Supreme Court, in an emergency session, unanimously ruled that the proceedings be stayed. Four days later, the King suspended the five Supreme Court judges who had issued the order, on Mahathir's advice. The government announced it would now attempt to impeach those five judges as well for "gross misbehaviour" and conspiring "to make the order". There were now only four judges on the Supreme Court, two of them also sitting on the tribunal. The government appointed new judges to fill the void, who refused to hear any further motions by Salleh Abas. The tribunal eventually found Salleh guilty, and he was officially relieved of his position. Of the five judges who had supported him, two were convicted, and the other three were acquitted. ^[11]

COMMENTS

The Bar Council's call to reexamine the sacking of the judges is most appropriate and overdue. That episode must the most disgusting and most disgraceful of all the damaging "contribution" of our former PM of 22 years towards nation building! In the process, he destroyed the judiciary, the police force and Attorney General's chambers. It does not speak well of those who took orders blindly and meekly to destroy others, in this case the judges involved who did not do anything wrong so that one man could continue to be in power. It is a frightening thought that we had and have men lacking in courage within the judiciary, the police force and the attorney general's chambers, all of whom were and are sworn to protect the innocent and uphold the law without fear and favour! Some of those involved in that infamous event are dead but some are still alive and holding powerful positions. It is not comforting to the nation and its people. Isn't it?

This is the time for the present government to show that it has the backbone and the courage to heed the call of the Bar Council to reexamine the entire national shame so that the judiciary's name and the name of the judges may restored.

August 16, 2006 14:05 PM

Tun Salleh Mum Over Investigation Proposal

KUALA LUMPUR, Aug 16 (Bernama) -- Former Lord President Tun Salleh Abas was tight-lipped over a proposal by the Bar Council that a thorough review of the sacking of three of Malaysia's top judges nearly 20 years ago be carried out.

The media-shy former top judge, when met by reporters, said he had yet to read the Bar Council's proposal and thus had no comment to make.

"Let me read it first...I have not read the report," Salleh said after launching as-Salihin Trustee Bhd, which specialises in Islamic estate planning, at a leading hotel here.

The three judges sacked for misconduct by a special tribunal set up by the then government were Salleh and Federal Court Judges Datuk George Seah and Datuk Wan Suleiman Pawanteh.

Yesterday Bar Council president Yeo Yang Poh, in a statement called for a thorough review of the 1988 sacking of the three judges, during the tenure of then Prime Minister Tun Dr Mahathir Mohamad, which he described as the "darkest days for the Malaysian judiciary".

Yeo said an impartial re-examination of the attack by the Executive then on the judiciary was necessary to restore the honour of the judges.

The Bar Council's statement was issued in the wake of the on-going allegations by the former prime minister against his successor Datuk Seri Abdullah Ahmad Badawi.

The Bar Council said the on-going criticism by Dr Mahathir against the current administration had rekindled discussions of the numerous deeds and misdeeds of the government under more than two decades of the previous leadership.

-- BERNAMA

Judiciary: 'The Hidden Story'

Justice George Seah© writes a must-read 5-part piece in the Malaysian Bar website, titled Crisis in the Judiciary - The Hidden Story, in which he says "history will exonerate me for taking a stand".

To give you some early spices, Seah's story starts with the episode where Umno was declared an illegal entity by the High Court in 1987. Justice Harun Hashim was the presiding judge.

An appeal to the Supreme Court of Malaysia was lodged by the Plaintiffs, so-called UMNO 11, who represented the Tengku Razaleigh faction. Salleh Abas, the incumbent Lord President, was suspended before the UMNO 11's appeal could be heard and disposed of.

The records show that Salleh has order for a 9-judge panel to hear the UMNO 11's appeal, scheduled to start on June 13, 1988. Salleh gave the instructions on May 24, 1988. On May 27, 1988, Salleb Abas reported that he had been suspended from exercising his functions of High Office with restrospective effect from May 26, 1988.

The Chief Justice of the High Court of Malaya, Abdul Hamid Omar, now a Tun, was appointed Lord President and, on assuming office, the acting Lord President vacated the June 13, 1988 hearing date set by his deposed predecessor.

And Seah writes:

Some 15 years later, after the recent death of Dato Harun (Hashim) on 30 September 2003, the following orbituary appeared in the New Sunday Times, dated 5 October 2003 on page 10:

After Harun declared UMNO illegal, he only sought the Diarist's opinion on what was next. The Diarist speculated and also told Tun Salleh Abas what could happen in the event they persisted in their plan to have a full court hearing of the UMNO case. Tun Daim Zainuddin had intimated to the Diarist the Government's plan. They were simultaneously alarmed, sceptical and rather naive. The rest is history ....

The Diarist that Seah mentions is Abdullah Ahmad aka Dollah Kok Lanas, who was then the Group EIC of the NSTP.

Seah, then, was sitting at the Supreme Court bench, alongside Salleh Abas.

As history has it again, Seah was suspended from his judiciary duty alongside four other Supreme Court judges. On this, Seah says:

It should be pointed out that Article 125 regulates the suspension and removal of a Judge of the Supreme Court. The Article does not provide for suspension and removal of more than one Judge of the Supreme Court. This is understandable because the Prime Minister has not been vested with power under the Federal Constitution to suspend the Supreme Court, which is the third pillar of a parliamentary democracy. Similarly, the King can remove the Prime Minister on constitutional grounds but, with great respect, has no power under the Federal Constitution to suspend Parliament. A fortiori, the Yang Di-Pertuan Agong has no vested power even under Article 150 of the Federal Constitution to suspend Parliament.

In my opinion, the subsequent suspension of the five Judges of the Supreme Court following the suspension of the incumbent Lord President, Tun Salleh Abas, was tantamount to the suspension of the Supreme Court. Nobody seems to have questioned the legality of the suspension of the five Judges of the Supreme Court at the material time and this constitutional point was not determined by the Tribunal set up to investigate the charges against the five Judges of the Supreme Court .

The fracas later degraded into a situation, borrowing words from Seah, of 'colonels judging the generals' and the verdict cast in stone. "It was an episode which plunged the judiciary into depths of despair."

"Opposition leader should head Judicial Commission"

At a time when the idea of a Judicial Commission is being tossed around by the present administration, Seah says the Opposition leader should head this commission. Quote"

I think I should give my personal views on the composition of members of the proposed Judicial Commission.

In the first place, the Prime Minister must not be involved, directly or indirectly, in these appointments. It follows that I am not in favour of the Prime Minister being appointed Chairman of the Judicial Commission. A fortiori, I am also against the Prime Minister nominating a person to be Chairman of the Judicial Commission. In my view, the Chairman of the Judicial Commission which is meant to be an independent and impartial body, should be the leader of the Opposition in Parliament, with the Chairman of the Bar Council of Malaysia, as his deputy.

As regards the other members of the Judicial Commission, the details can be worked out after hearing the views of the people of Malaysia, if the proposal is acceptable in principle.

If the Federal Constitution is to be amended to cater for this change, perhaps opportunities should be given to the people to put forward suggestions to amend the Constitution to prevent the Prime Minister from holding more than one portfolio in the Cabinet at any time. This would be in line with the principles of parliamentary democracy.

To commit history or to omit history? Your call. It's a history lesson for all of us.

Comments

Posted by: Overthefence June 5, 2006 12:55 PM

I concur absolutely with The Honourable Justice George Seah. As one can see Tun Dr Mahathir (TDM) has many parallels with President George Bush. Both stole the elections to become head of state. Both are dishonest and manipulative except that TDM is worse than Bush. He manipulated to remove the LP and five Supreme Court judges which Bush did not do. SO TDM's call for people against war to be leaders is hypocrisy and incomplete. Leaders must also be anticorrupt, honest and respect meritocracy and independence of the judiciary and the press. Dont be a pot calling kettle black.

Posted by: bystander June 5, 2006 01:32 PM

The starting point where George begins omits the real beginning of the story when UMNO was declared illegal in 1987. He 'forgot' to mention that it was a court action by the UMNO 11 that led to the high court decision making UMNO illegal in the first place! The reason why the UMNO 11 then lodged an appeal is because Ku Li did not want to be remembered as the person who's supporters' actions led to UMNO being declared illegal in 1987! In fact, Ku Li continues to be haunted by the fact as he and his team were poorly advised by their lawyers on their actions, including the CURRENT UMNO SEC-GEN among others! This is why Ku Li chose eventually to disband S46 to return to UMNO.

More importantly though, the idea of having the Opposition Leader as head of the Judicial Commission is if anything, a little naive. It may be acceptable to some here whilst LKS is still leader of the opposition, but demographically speaking, the future Opposition leader would be the PAS leader after the last election. So, would people be as happy with Hj. Hadi Awang, or his clone, champions of Hudud Law, being head of the Judicial Commission?

In addition, having then the head of the Bar Council be deputy head of such a Commission is worse than the past scenario of having colonels judging the generals, it would be akin to having Leutenants judging everyone from Captains (Magistrates) through to Generals (Supreme Court Judges)!!

The Bar Council does not have any legitimate right, constitutionally or democratically, to be involved in the Judicial Commission and with the conflict of interest involved, should hardly be considered as parties involved in leading it!

So, is this really the writings of a former Supreme Court judge, or is someone putting words into this learned man's mouth? Someone from the Bar Council perhaps?