A man wronged (Part 1)

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salleh abas“Looking at the (Tribunal’s) report now, I do not have any doubt that my decision not to participate in the proceedings was right …,” Tun Salleh Abas said in the conclusion of his reply to the Tribunal’s report.  His clarifications point to a shocking scenario of injustice, twisted facts and perverted actors mouthing dubious “evidence” — in other words, a kangaroo court!

I had, in a preliminary statement issued on 10 August, dealt generally with the Tribunal’s Report and commented in some detail on the Tribunal’s findings on one of the charges against me, namely, Allegation 4 (page 44 to 46 of the Report).

I have now read the full Report and am in a position to comment on the other aspects of the Report.

The first obvious observation to make must be on the most unsatisfactory procedure which the Tribunal had devised for its proceedings.  Bearing in mind the serious consequences of the Tribunal’s findings (in this case, resulting in my being removed from the office of the Lord President of Malaysia), the Rules of Procedure contained only nine paragraph, the provisions relevant to the actual hearing being those of paragraph 7 which states:-

“The proceedings of the Tribunal is not a trial but an enquiry on the reference.  The Tribunal shall not apply the strict rules of evidence as contained in the Evidence Ordinance.”

This, by any standard, was quite unacceptable as a procedure.  The rules of procedure prescribed for disciplining of Government officers and of University staff and even employees of the private sector provide for more than that.  It was for this reason that my solicitors had requested that the Rules be revised by the Tribunal in order to ensure a hearing according to a generally accepted and fair procedure.  In their letter of 23 June my solicitors said:-

“Although the Tribunal is not required to conduct its proceedings in the manner of  a Court trial, its procedure must nevertheless provide for much more than found in paragraph (7) of the Rules.  That paragraph does not give an indication of the manner in which the hearing will be conducted.  Matters such as the summoning of witnesses and their examination and the presentation of evidence have not been provided for.”

This letter has not been included by the Tribunal as one of its Annexure to the Report.

In the field of Administrative Law, any enquiry conducted according to such a vague procedure of hearing — which, in fact, provided for hardly any procedure at all —  would be held to be bad in law.  Yet the Tribunal decided to proceed with its hearings in spite of my solicitors’ request and of my Counsel’s oral statement made before the Tribunal on the 30th day of June, 1988.  In Chapter 7 of the Report, the Tribunal seems to suggest that since the Tribunal, unlike a Commission of Enquiry, was not provided with a set of procedure, the Rules of Procedure it devised was adequate because the Tribunal “did not, in drafting the Rules of Procedure, decide on a series of hard and fast rules to regulate the enquiry, but instead, having regard to the requirements of natural justice endeavoured to formulate general and broad principles which would, in all the circumstances, be fair”.  

With respect to all the members of the Tribunal, fairness, in relation to any tribunal (be it a Court or otherwise) can only be ensured by a fair procedure: the suggestion of the Tribunal that the procedure was deliberately made vague in order to adhere to and comply with the requirements of natural justice is absurd to say the least.  No doubt to justify its findings in the face of the absence of a generally acceptable procedure the Tribunal states by way of a preface(at page 36)  that it had “endeavoured to follow the well-known principles applied and followed in such matters and also in regard to the burden of proof and standard of proof by similar tribunals in other jurisdictions”.  A careful study of the Report will show otherwise.

On Allegation 1

The general charge was that I “made several statements (in a speech I delivered at the University of Malaya on 1 August 1987, when I was conferred the Honorary Degree of Doctor of Letters) criticising the Government, and these statements are incompatible with my position as Lord President of the Supreme Court.”

My speech  dealt with the problems of dishonesty in the country.  It is public knowledge that cooperatives and banks were losing money.  In that speech I had suggested two strategies as a long-term solution to the lack of honesty.  The first was to inculcate in our youths the spirit of honesty and moral education, the second to apply legal sanctions which were already available in our legal system.  This would entail the revamping and upgrading of the law enforcement agency by providing more manpower and training.  

In this connection I expressed regret that since Merdeka (not just since the present Prime Minister’s tenure) the Courts’ need had been given the lowest priority for the purpose of budget allocation.  In support of the view I held that the Courts should be provided with a better budget allocation, I stressed the important role the Courts played in the community for ensuring the maintenance of stability and emphasised that there could be no proper administration of government without an independent judiciary funded sufficiently and properly.

These statements, flowing from general concepts, are axiomatic, and any first year student of law will be familiar with them.  My making them was wholly compatible with my position as a judge and as Lord President.

But the Tribunal found against me on this Allegation, its finding, according to the Report, being further supported by the evidence of two witnesses:

READ MORE:  Speaker’s written request to court may give rise to unnecessary perception

a. One of these was the Director-General of Fisheries who was called in relation to a passage in my speech, which said: –

“Although most of the officers in the public service are trustworthy, there are times they were found to be not so efficient and adequate.  This happens when an officer faces challenges as to whether to approve or not to approve an application in connection with any plan or scheme, made in the name of someone who is prestigious and of high standing. As there is no moral courage even though he understands by his conscience that the application should not be approved, all rules of law are put aside and the approval is given, resulting in harm to the rights of others.”

This witness testified that I had on two occasions accompanied my son to see him to “enquire about the development of deep sea fishing” because my son was interested to venture into it, that he had explained to us the procedure for obtaining the requisite licence, that I had not exerted any pressure on him with respect to my son’s application for a licence which was not submitted until some 6 1/2 months after the second meeting, and that all applications for licences would always be considered in accordance with whatever rules, procedures and regulations were applicable.

In fact, I had seen Encik Shahrom bin Hj Abdul Majid only once.  The appointment (fixed for 3 September 1987) was cancelled due to his having to attend an important matter on that day.  Indeed Encik Shahrom had honestly stated in his evidence that the two occasions had been “probably on 3/9/87, the first occasion and probably on 13/10/87, the second occasion”.

In calling this witness, the Attorney-General informed the Tribunal that the gist of the evidence to be adduced was that I had brought my son to see the witness “asking for the licence to be issue to (my) son” (page 20 No.. 4).  This statement of the Attorney-General is false.  This witness did not say that I had asked  for a licence to be issued to my son or that I had put any pressure upon him to issue one: in fact, his evidence is that my son’s application was still under consideration.

It is difficult to fathom how the evidence of this witness could be said to support the Tribunal’s finding against me on Allegation 1.

b. The other witness was the Deputy Director of Budget, the main thrust of whose evidence was that the Ministry of Justice and the Courts did not come under the classification of Social Category in relation to budget allocation and the Courts had not been treated in any way more unfavourably compared to other Ministries.  This was evidently in rebuttal of what I had said in my speech that:

“… unfortunately since Merdeka, the courts have been placed under a social service category to receive budget allocation every year. Due to their placement in this category, the courts have been given the lowest priority. The concept of placing the courts under the social service category is very unreasonable and out of place.  The courts are not like the Ministry of Health, Ministry of Sports and Ministry of Education.”

In accepting the evidence of this witness, that the Ministry of Justice and the Courts do not fall under the Social Category, the Tribunal failed to appreciate that my reference to “social service category” was by way of comparison.  

It is a fact that since Merdeka the Courts had not been given a high priority status in relation to budget allocations.  Until a few years ago, the High Courts in Kuala Lumpur and the Supreme Court were housed not in the present Supreme Court Building but in the building across the river.  That the Supreme Court was able to have the present building was due largely to the Selangor State Secretariat and the other Government Departments (formerly using a large part of the Sultan Abu Samad Building), moving out into their own offices at Shah Alam and elsewhere.  

Prior to that, plans for the building of a Hall of Justice had to be shelved a number of times due to funds being required for more important projects: on the last occasion drawings for the Hall of Justice had almost been finalised.

The Tribunal seems to have missed the point of evidence of this witness, which was, that the Ministry of Education, the Ministry of Health, the Ministry of Information, the Ministry of Youth, Sports and Culture and the Ministry of Social Welfare (all placed under the “Social Category”) were considered more important than the Ministry of Justice.  It is ironical that Tan Sri Abdul Hamid bin Omar himself, no doubt unwittingly, echoed my very argument in this question he put to the witness:-

“Tan Sri Abdul Hamid bin Omar: So if Justice Ministry is put under Social Category then it should be better?”

That was the point of my speech.  The Courts were not accorded as high a priority as these other Ministries, for the purpose of budget allocations.

The evidence adduced of this witness was very superficial. The fact that large allocations have been given to the Social Category Ministries during the last few years is not relevant to the matter in issue.  I do not see any of the two Malayan Chief Justices on the Tribunal denying the truthfulness of my statement: they, rather than the witness, would have had a better knowledge of what funds the Courts required and were or were not made available.  Why did they no deny what I said?

READ MORE:  Are we all equal under the law?

It is, of course, regretable that the Tribunal had chosen to focus attention on specific passages in my speech and, in so doing, had overlooked completely the principles of  law which require the whole to be considered in order to determine intention.  Had established principles been observed, the Tribunal could not have taken those passages in isolation and out of context.

Allegation 2

This Allegation contains a general charge and four specific charges, all arising out of a speech I gave at the Shangri-La Hotel at the launching of the book “Malaysian Law” and “Law, Justice and the Judiciary: Transnational Trends”, on 12 January 1988.

a. The general charge is that I “made several statements discrediting the Government and thereby sought to undermine public confidence in theGovernment’s administration of this country in accordance with law”.

The speech was made in defence of the judiciary against the Prime Minister’s constant attacks since November 1986, the last of which was made in the Dewan Rakyat when he moved the Printing Presses (Amendment) Bill.  The remarks he made against a number of judges then were both vituperative and derogatory.  

The fact that he made those remarks at all, without the requisite notice under Article 127 of the Federal Constitution (which prohibits discussion of the conduct of a Judge except on a substantive motion of which notice has been given by not less than one quarter of the total number of members of the House), was itself most improper: the Speaker of  the Dewan Rakyat, Tan Sri Mohamed Zahir bin Ismail (who was also a member of the Tribunal), apparently allowed it.

The strain in the relationship between the Executive and the Judiciary started in 1986 after the Supreme Court decided the case of John Berthelsen v Director of Immigration & Ors (Civil Appeal No. 403/86), where it held the revocation of the work permit of a foreign journalist invalid on the ground that he had not been given an opportunity to be heard.  It was soon after this that the public attacks against the Judiciary began.

 In an interview with TIME magazine the Prime Minister expressed his displeasure with the Court’s decision.  His remarks as published in TIME magazine (issue of 24-11-86) led to his being cited for contempt of court at the instance of the Leader of the Opposition; and although the application was dismissed (the judgment of Mr Justice Harun being upheld by the Supreme Court), the High Court judge’s remark that the Prime Minister was confused over the concept of the separation of powers (and the need for an independent judiciary) within the democratic system received wide publicity in the press, with The Star (29 November 1986) carrying it under the heading “Mahathir’s Dilemma”.

On 5 September 1987, Justice Harun, in an address delivered to law students at a seminar at the Universiti Kebangsaan, suggested that the system of appointing Senators should be replaced with an electoral system.  

On the following day the Prime Minister, in a speech he delivered in Kuantan, accused certain judges of voicing their views on political issues outside the court room and therefore of interfering with politics.  He said that “judges were no longer adhering to their rightful role of administering justice in a democratic system but had instead encroached on the roles reserved for the other branches of government” and that the “judiciary should be neutral in politics because people who disagreed with the political views of these judges would have little faith in them if they were to go before them to seek justice”.  The next day, he made another speech saying that it was “up to the head of the judiciary to admonish judges who made public their political views”.  

Not wishing to aggravate the situation, I declined to make any comment to the newspapers on the Prime Minister’s statement, expressing the view that the “best thing to do was to keep quiet and let the matter rest” (New Straits Times,  11 September 1987).  I felt that the matter was best treated as a domestic issue to be settled between me and the judge concerned.

But the matter was not to rest.  The judiciary was not to be left alone.  The events that followed are too well reported to need repeating.  Reference to the following publications will indicate the nature and extent of the attacks levelled at the Judiciary: –

•    The New Straits Times (3 October 1987) under the heading “Government Will Ensure Separation of Powers, says PM.”

•    The New Straits Times (4 December 1987) under the heading “Ensuring The Right To Govern”. Malayan Business magazine (1 January 1988).

One need only to read the Prime Minister’s comments reported in the publications mentioned above to appreciate the contumelious nature of the attacks levelled at the Judiciary.

It is quite inexplicable that these speeches of the Prime Minister attacking the Judiciary, which were known to the Chairman of the Tribunal, Tan Sri Abdul Hamid bin Haji Omar, were not referred to at all or considered by the Tribunal.  

In this respect, the Attorney-General too seems to have failed to discharge his duty as laid down by the very procedure devised by the Tribunal, namely, to “assist the Tribunal in the enquiry”: it was his duty to act fairly to the enquiry.  He was aware of these speeches (they were referred to in the affidavit filed in support of my Prohibition application, which was served on him), and he ought to have brought them to the Tribunal’s attention.  

The scurrilous nature of the attacks on the Judiciary must surely be very relevant for determining whether or not I had overstepped my bounds as the holder of the office of Lord President Malaysia in making the speech on the 12 January 1988.  It was after all in defence of the Judiciary and the Judges, and to clear misconceptions of the functions of Judges created by these attacks of the Prime Minister that I had made the speech .  I would have failed in my duty as Lord President had I not acted as I did.

I had hoped by the speech to prevent the situation from becoming worse.  In the concluding part of the speech, I had said:-

“I make these remarks not in the spirit of confrontation, but as a clarification in the hope that whatever has been misunderstood will be clarified and passed over. I have remained silent far too long and in view of some of the criticisms intended against us, I feel I owe a duty to the public to make this clarification.  I find no better occasion on which to make this statement than at this historic ceremony of launching the book “Law, Justice and the Judiciary: Transnational Trends” which itself deals with the role of the court and the law in developing societies.”

The clarification did not, however, have the result intended.  The attack was continued in a speech made in Parliament when the Prime Minister moved a Bill to amend Article 121 of the Federal Constitution, the object of displeasure then being the judges’ power of judicial review and their role as interpreters of the law and the Constitution..  His remarks (reported in the New Straits Times dated 18 March 1988 under the heading, “Why Changes Are Needed”) were also not brought to the attention of the Tribunal or considered by it.

b. Of the 4 specific charges under Allegation 2, all except one would have been dealt with by my comments above.  The remaining specific charge 2(iv) must be considered on its own: it does not and cannot form part of Allegation 3 as the Tribunal has seems to have found in its Report (page 37, Vol.1).

This specific charge was said to have arisen out of the part of my speech, where I said: –

“Law and the Constitution however perfect these could be written in any language, can never be divorced from the need of interpretation.  Even if all the laws are codified, as have happened in civilian countries, interpretation of the cold words of codified law become a matter of paramount importance in order to breathe life into them for the need of adjudication of the moment …  No better illustration can be found with regard to interpretation as part and parcel of the law than the Islamic legal system.  This system consists mostly of the Quran and Hadith …  The interpretation of these two sources of law is done according to the established and accepted methodology … Therefore, no legal system can ever escape from the need for interpretation, be it a divine legal system or a secular system.  For the law is a concept clothed in language.  It cannot be seen, but perceived through intellectual efforts and experience.”

The charge against me was that I advocated the acceptance of Islamic legal system not only in the interpretation of the Civil Law of Malaysia but in its general application.  I was also accused of attempting to restate the law generally along Islamic legal principles, ignoring the character of Malaysian society as one which is multi-religious and multi-racial with deep cultural differences.  My statement was said to violate established principles of judicial interpretation widely accepted in the courts in Malaysia and in the Commonwealth.

Whoever thought up this charge had not quite understood the plain meaning of what I had said.  My thesis in that speech is that interpretation is part and parcel of the law.  I quoted Islamic law merely to show as an example that even such a divine law requires to be interpreted.  What more, a secular law.  This subject was incorporated in my speech as a result of public statements made by the Prime Minister questioning the role of judges as interpreters of the law.  To impute to what I said the meaning set out in the charge is quite mischievous, and for the Tribunal to believe that that was what was meant or intended was quite irresponsible.

As for my view on the application of Islamic law in our legal system, I had, in delivering the judgment of the Supreme Court in the case of Che Omar @ Che Soh v P.P. (1988) 2 MLJ 55, expressly stated that, until Parliament legislated to the contrary, the Courts were bound to apply the law as they existed.  The Attorney-General who, in his capacity as the Public Prosecutor, was a party to this case, would have been very familiar with this decision and should have drawn the attention of the Tribunal thereto.  In not doing so, the Attorney-General had not acted fairly and was again sadly wanting in the discharge of his duty to “assist the Tribunal in the enquiry”.

 

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Part 2

Source: AM 8(6) 

To understand the intrigues and the menoeuvering that took place behind the scenes, perpetrated by individual in high positions for selfish reasons, Datuk George Seah's 5-part series on the 1988 Judicial Crisis in Aliran Monthly is highly recommended as background reading material. 


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