Monday, March 31, 2008

TUN MAHATHIR, WE HAVE NOT FORGOTTEN TUN SALLEH ABAS.



May Day For Justice
The Background Behind Tun Salleh's Book
The Removal of Tun Salleh Abas
____________ _________ _________ __

Mahathir was continually upset with the Judiciary because the
verdicts
in a number of cases went against the Government. According to then
Deputy PM, Datuk Musa Hitam, one of his favourite slogans was "Hang
the Lawyers! Hang the Judges!" From 1987, he intensified his verbal
attacks against the Judiciary in the news media, making damaging
statements which clearly demonstrated that he did not understand the
role of the Judiciary as being independent from the Executive and
Legislative arms of Government. That the Judiciary exists as a
check-and-balance against the excesses of the Executive appeared to
have been a concept he never fully grasped. Instead, he accused
judges
of the sort of political interference that would result in confusion
and loss of public confidence in the Government. Hence, to curtail
the
powers of the Judiciary and subsume it beneath the Executive became
one of his cherished dreams.

In April 1987, after an UMNO leadership contest in which Mahathir
very
nearly lost to Finance Minister Tengku Razaleigh Hamzah, there were
allegations that several delegates who had voted were drawn from
branches not properly registered under the Societies Act 1966. An
appeal was filed by eleven UMNO delegates to have the elections
declared null and void. This was a very serious matter for Mahathir
because if the appeal succeeded, fresh elections would have to be
held
and he might lose. The matter finally came before Justice Harun
Hashim
of KL High Court who ruled that under the existing law, he had no
choice but to declare not just the elections invalid, but the whole
of
UMNO an unlawful society as well. The country and, more
particularly,
UMNO, went into a state of shock.

In most modern democracies, a political catastrophe of this
magnitude
would have result in the immediate resignation of the party's
President and Prime Minister. But Mahathir did not resign. He
informed
the country that the Government would continue running the country.
Opposition Leader Lim Kit Siang and Tunku Abdul Rahman called for a
vote in Parliament to establish Mahathir's legitimacy but those
calls
were ignored. Mahathir then set in motion the machinery to form a
new
surrogate party called UMNO Baru. His opponents, however, wanted the
old party revived. The eleven UMNO delegates then launched an appeal
in the Supreme Court to have the 1987 elections alone declared
illegal
and the party not an unlawful society.

Mahathir fully understood the danger to him of this pending appeal.
He
had to act quickly. In October 1987, he launched the notorious
Operation Lalang in which at least 106 people were arrested and
detained without trial under the ISA, including three very
articulate
critics, the Opposition Leader Lim Kit Siang, political scientist
Dr.
Chandra Muzaffar and leading lawyer Karpal Singh. The official
reason
for the arrests was that a highly dangerous security situation had
arisen but this has been strongly disputed as nothing more than a
shameless fabrication. The broad sweep included even
environmentalists
and Consumer Association spokesmen. Four of the most outspoken
newspapers -The Star, The Sunday Star, Watan and Sin Chew Jit Poh -
had their publishing licences suspended. When, after five months,
the
papers were free to publish again, they were no longer the same.

Mahathir's next move was to push through Parliament far-reaching
amendments to the Constitution so that the Executive gained in power
enormously at the expense of the Judiciary. There was general
indignation at this rude behaviour which shocked a good many people.
The indecent haste and the fact that the amendments were made at a
time when the Government's main critics were in detention, including
the Opposition Leader and six vocal MPs and outspoken newspapers
demoralized added further to the appalling injustice of the
situation.
Tunku Abdul Rahman, Malaysia's beloved first Prime Minister, put it
succinctly: "It was legal, but was it just?" Others noted angrily
that
the Constitution had been raped once again. In a speech, the
outgoing
President of the Bar Council, Param Cumaraswamy, said:

"The Prime Ministe'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. He has
indeed defiled and defaced the Constitution. It is surprising that
those 142 MPs 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."

One visiting parliamentarian was astonished at the lack of public
debate. In his own country, he said, such amendments would have
taken
years.

Next, after having curbed the independence of the Judiciary,
Mahathir
set about destroying its integrity. This was the removal of Tun
Salleh
Abas as Lord President in 1988, a move which Tunku Abdul Rahman
described as "the most shocking story in modern legal and judicial
history,"

____________ _________ _________ __

Tun Salleh Abas was a man of humble origins - his father was a
sailor
and small village trader - who rose to become Lord President, the
highest judge in the land and head of the Judiciary while remaining
a
deeply religious man.

By March 1988, Mahathir's scandalous and violent public attacks on
the
Judiciary had so provoked the judges that Tun Salleh was obliged to
call a conference. Twenty judges met in the Supreme Court one week
after the debilitating and shameful Constitutional amendments were
made. By unanimous agreement, a letter was drafted to the King (also
the Sultan of Johore) and copied to all Sultans, expressing disquiet
over various comments made by the Prime Minister. The letter was
delivered on 25 March and Tun Salleh left soon after for medical
treatment in the United States followed by a pilgrimage to Mecca. He
had a most important duty to perform upon his return: he fixed the
hearing of the crucial UMNO Eleven appeal for June and, because of
its
overwhelming significance, decided that a full coram of nine Supreme
Court judges should hear this. Three days later, Tun Salleh was
suspended from his official capacity by the King on recommendation
of
the Prime Minister. In the same hour that he received the suspension
letter, the Acting Lord President, Tan Sri Abdul Hamid took the UMNO
Eleven case out of the calendar so that the link between the two was
difficult to deny.

Tun Salleh's suspension came after he refused to bow to Mahathir's
pressure to either resign or retire, even though financial
inducements
were offered, including mention of a lucrative job in the
International Development Bank in Jeddah. The initial reason given
for
the suspension was that the King had taken great displeasure over
the
letter Tun Salleh had written on behalf of all judges. According to
official records prepared by the Attorney General, the King had
requested Tun Salleh's removal in an audience with the Prime
Minister
on the "Wednesday morning of 1 May 1988" after the weekly Cabinet
Meeting.

There are serious doubts as to whether this audience actually took
place. The first of May 1988 fell on a Sunday, not Wednesday as the
Attorney General recorded. Even if the day of week were corrected,
there can be no Cabinet meeting on a Sunday. That the King expressed
great displeasure only on 1 May, when he had in fact received the
letter on 25 March cast further doubt over this assertion. It is
difficult to believe that the King wanted Tun Salleh removed purely
because he had protested about the public insults directed against
the
entire Judiciary by the head of the Executive. In any event, royal
displeasure would not be a constitutionally valid ground for
dismissal. Indeed, Mahathir advised the King as much in a letter
written four days after this probably fictitious audience; however,
the Prime Minister went further in the same letter to say that he
would investigate Tun Salleh for any evidence of misbehaviour. In
any
event, the King did not clear up the mystery and, in an audience
with
Tun Salleh, actually asked the latter to step down without giving
reasons although the Conference of Rulers had already asked for his
reinstatement. Amazingly, Tun Salleh was suspended and a Tribunal
set
up to determine his fate before any formal charges were laid.

The Constitution does not provide for the removal of a Lord
President.
While the Tribunal need not be an inappropriate means, its
composition
was to say the least, disgraceful. It was composed of six acting and
retired judges, although the Constitution required an odd number to
prevent deadlock. Of these -four from Malaysia, one from Sri Lanka
and
one from Singapore -only the Sri Lankan enjoyed a rank comparable to
Tun Salleh's. This was contrary to the very reasonable dictum that
one
should be tried by one's peers rather than one's juniors. The fact
that two retired Lord Presidents of Malaysia were available but not
invited was glaring. There were grave conflicts of interest with
three
of the Malaysian judges that should have disqualified them from
sitting: Tan Sri Abdul Hamid who was next in line to succeed as Lord
President and who had also participated in the conference of 20
judges
which resulted in the letter to the King; Tan Sri Zahir who, being
also the Speaker of the Lower House, was beholden to Mahathir, the
principal complainant in the matter at hand; and Tan Sri Abdul Aziz
who, although a former judge, was then a practising lawyer and, more
incredibly, had two suits pending against him at that time. But Tun
Salleh's objections were ignored and when the Bar Council issued a
statement calling for the Tribunal to be re-constituted, both the
New
Straits Times and The Star refused to publish it. Further, it was
decided that the Tribunal would sit in closed sessions although Tun
Salleh had requested a public hearing.

The charges, when finally published, were manifestly absurd. Running
over 12 sheets of paper, it was clear that quantity had been
substituted where quality was lacking, and some of them actually
related to Tun Salleh's behaviour after suspension. Many of them
related to his speeches and press interviews, whereby sinister
meanings were imputed to various innocuous comments that he had
made.
To cite an instance, in a speech at the University of Malaya, he had
said: "The role of the courts is very important to bring about
public
order. If there is no public order there will be chaos in this
country
and if there is chaos, no one can feel safe" On this basis, Tun
Salleh
was charged with making statements criticizing the Government which
displayed prejudice and bias against the latter. Another statement
of
his, "In a democratic system, the courts play a prominent role as
agent of stability but they can perform this function only if judges
are trusted," resulted in the charge that he had ridiculed the
Government by imputing that it did not trust the judges. These
charges
were doubly ludicrous in the light of Mahathir's many poisonous
attacks against the Judiciary.

It is not surprising that Tun Salleh, after reading this catalogue
of
fantasy crimes, refused to appear before what was so evidently a
kangaroo court. The Tribunal, after refusing representations made by
Raja Aziz, Tun Salleh's leading counsel, that it had no
constitutional
validity to sit, chose instead to proceed so hastily that it wound
up
deliberations, including the examination of witnesses with just four
hours work. As it prepared to issue its Report, Tun Salleh's lawyers
sought an urgent stay of proceedings in the High Court. This would
normally be granted immediately at the least possibility that an
injustice may be about to be done but, here, events turned into
utter
farce.

Instead of immediately reaching a decision as expected, the
presiding
judge, Datuk Ajaib Singh, after the court had been in languorous
session the whole day that Friday, adjourned hearings for 9.30 am
the
next day. On Saturday however, the judge emerged in court only at
11.50 am and, even then, postponed hearings again for the Monday! In
desperation, Tun Salleh's lawyers, knowing that the Tribunal could
easily release its Report before then, sought the assistance of
Supreme Court judge, Tan Sri Wan Suleiman, in his Chambers. The
latter
agreed to hear them in open court in half an hour's time and called
a
coram of all remaining Supreme Court, one of whom, Tan Sri Hashim
Yeop, refused to sit. The soap opera reached an apogee of
ridiculousness when Tan Sri Abdul Hamid, head of the Tribunal and
Acting Lord President, gave orders for the doors of Supreme Court to
be locked and for the seal of the Supreme Court to be secreted away!

Undeterred, the five Supreme Court judges ordered the policeman on
duty to open the door forthwith. After less than half an hour, the
Court ordered the Tribunal not to submit any recommendation, report
or
advice to the King. Tun Salleh's lawyers were typing the Order to
serve personally to the Tribunal at Parliament House when news
arrived
that the gates of Parliament House had been locked! At this point,
Justice Wan Suleiman rose to the occasion and, calling the office of
the Inspector General of Police, told a senior officer that any
impediment to serving the Order would constitute contempt of court.
The gates of Parliament swung open and, at 4 pm, Raja Aziz and his
team served the Order to the Tribunal members who were found to be
still hard at work on a word-processor that Saturday afternoon. All
six members accepted service without complaint.

It would appear that justice had at last prevailed but, four days
later, all five Supreme Court judges were suspended. Almost every
rule
that was broken to suspend Tun Salleh was broken again to suspend
them. The prohibition order they had made were revoked within days.
A
second Tribunal eventually reinstated three of the judge: Tan Sri
Azmi
Kamaruddin, Tan Sri Eusoff Abdoolcader and Tan Sri Wan Hamzah but
Tan
Sri Wan Suleiman and Datuk George Edward Seah were removed from
office.

The UMNO Eleven case was quickly dismissed. The removal of Tun
Salleh
also saw the resignation of Deputy PM Datuk Musa Hitam who,
according
to popular wisdom, could no longer stomach Mahathir's ways.

*****.*****

Daripada Abu Umarah iaitu al-Bara' bin 'Azib radhiallahu anhuma, katanya: "Kita semua diperintah oleh Rasulullah s.a.w. untuk melakukan tujuh perkara, iaitu meninjau orang sakit, mengikuti janazah, menentasymitkan orang yang bersin, menolong orang yang lemah, membantu orang yang teraniaya, meratakan salam dan melaksanakan sumpah."

(Muttafaq 'alaih)

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