P Ramakrishnan wonders whether the powers-that-be are afraid that the truth about the 1988 Judicial Crisis will expose all those who pretend to stand on high moral ground.
The Cabinet’s decision not to review the sacking of the three judges in 1988 brings to mind the telling point observed in that famous saying, “None are so blind as those who have eyes and see not; and none are so deaf as those who have ears and hear not”.
This is so evidently true in this instance.
So many people have spoken up and demanded – in the name of justice – for a review of the sacking of these three brave and valiant judges. There is no doubt in the minds of thinking and well-meaning Malaysians that they were dismissed wantonly under suspicious circumstances that discredited the fair name of the judiciary.
Many brilliant minds, well-read and well-versed in the law, have stated authoritatively that the constitution of the Tribunals and their judgments were flawed and shameful. As summed up by Tun Salleh himself in his book May Day For Justice, the judges and their judgments “dramatised the disgraceful conduct of the entire Tribunal”.
He further observed, “We are discussing the legal juggling and acrobatics, we are considering judicial intemperateness of the worst kind which produced a farce in the name of justice. We are looking at more than a hundred years of judicial ‘expertise’, sitting in council and pompously making a mockery of the basic law of our land.”
Datuk Nazri, to be sure, will dismiss this as the personal opinion of Tun Salleh, who is embroiled in this controversy. Unfortunately for him, this is not the only opinion.
Various eminent individuals and respected groups had soundly condemned the entire process leading to the dismissal. They expressed their outrage that natural justice had been set aside. They were appalled that the basic principles of the Universal Declaration of Human Rights and of the Rukunegara were trampled upon with such impunity.
And what of the witnesses assembled to testify before the Tribunal?
That world-renown Tun Mohamed Suffian, the former Lord President, in a stinging indictment, bluntly stated, “The four witnesses called by the Attorney-General before the Tribunal set up (to remove) Tun Salleh each declared to tell the truth and nothing but the truth; they were not required to tell the whole truth. Indeed the whole truth was not allowed to emerge…”
This is very true when one looks at the evidence elicited from that star witness, Tan Sri Sallehuddin Mohamed, the Chief Secretary to the Government. Sallehuddin was present when Mahathir summoned Salleh and told him to quit as the Lord President. He was there taking down notes as they were speaking. It would be safe to assume that he was jotting down everything that was being said.
Yet, when it was posed to him by the Attorney General whether the Prime Minister had mentioned that Salleh was biased in respect of UMNO cases then pending in court, Sallehuddin merely said, “I do not recall…”
He did not affirmatively reply “Yes” or “No”. His reply meant that he could not remember. That was a ridiculous answer. Since he had taken down notes and he had that notebook with him at that instance for reference, he could have provided a clearer answer. Astonishingly, the judges did not ask him to refer to his notes; neither did they ask for the notebook that he claimed to have with him in order to verify that it was the same notebook containing his jottings.
Wasn’t the UMNO 11 appeal the central and crucial issue for the removal of Salleh? The Lord President had fixed 13 June 1988 for the appeal to be heard before a full bench of nine Supreme Court Judges. This was established beyond doubt by the conduct of Hamid, the chairman of the tribunal and Salleh’s successor as the top judge, in this affair. On the very day that Salleh was suspended – 27 May 1988 – Hamid postponed the hearing scheduled for 13 June. And wonder of wonders, on the very day Tun Salleh was dismiss – 8 August 1988 – the UMNO case was before the Supreme Court. And the appeal was dismissed on the following day. Can we be persuaded to believe that this must have been sheer coincidence! Are we to believe that the UMNO 11’s appeal had nothing to do with Tun Salleh dismissal?
But the point is there was no honest and serious attempt to get to the truth. Questions were posed that would yield answers that could incriminate Salleh – and nothing more.
And how did the judges serve the cause of justice?
Dr Andrew Harding of the Law Department of the School of Oriental and African Studies put it succinctly: “What the judges did was not to annoy the Executive by importing alien English or other foreign legal concepts, but to imagine that they had the right and discretion to develop a distinctly Malaysian public law. What the Executive has done is to sacrifice, for the sake of a transitory, temporary and possibly illusory political advantage, the priceless asset of judicial independence.”
And what was the verdict on the Report?
That leading Australian-British barrister, Geoffrey Robertson, QC, did not mince his words when he observed, “The Tribunal’s Report recommending the sacking of Salleh Abas is among the most despicable documents in modern legal history.”
Betrayal of trust
Other glaring and blatant examples of conduct unbecoming of functionaries involved with the judiciary involved the then Chief Justice (as the designation of ‘Lord President’ was subsequently renamed) and the then Attorney General.
Then Chief Justice Hamid’s conduct must be investigated to
determine whether he had behaved honourably. After all, he was present on that fateful Friday afternoon, 25 March 1988, when 20 judges gathered to discuss Mahathir’s incessant attack on the judiciary and to decide what course of action to take. It was the collective decision of those present to write to the Yang Di-Pertuan Agong to bring to His Majesty’s notice that Mahathir’s attack was discrediting the judiciary.
It was this writing of the letter that brought about the controversy leading to the dismissal. Having been party to this decision how could Hamid be a member of the Tribunal and its Chairman? If the letter was offending, didn’t he contribute to the offence as well?
To make matters worse, he was fully aware that, following Salleh’s sacking, he was next in line to be the Lord President. Wasn’t he conscious of the glaring conflict of interest? Didn’t his conscience prick him enough to decline his appointment to the Tribunal? Wasn’t that the right and honourable thing to do?
Tan Sri Rais Yatim in his book, Freedom under Executive Power in Malaysia, vividly described this revolting conduct by quoting an observer on page 345: “How Hamid, the Chairman of the Tribunal, managed to get through this part of the proceedings without choking is hard to understand, since he was himself one of the judges at the meeting where the letter was discussed and agreed upon and he made no objection to it or any other part of the business.”
And more than that, he even played a terrible role that could be seen as subverting justice and throwing a spanner into the wheels of justice when Salleh’s solicitors, despairing for relief, went with their plea to the Supreme Court. Hamid had ordered the doors of the Supreme Court to be locked and the seal of the Supreme Court to be put away. The staff were told not to be available to assist any of the Supreme Court Judges. These actions were taken deliberately to frustrate Salleh’s solicitors and deny him justice. Hamid’s conduct must be seen as unbecoming of an officer of the court sworn to uphold the Constitution and safeguard justice.
And what about the Attorney General Tan Sri Abu Talib’s role in this nefarious episode? His role was to guide the Tribunal and establish the truth. But what did he do?
Salleh had emphatically addressed this issue in his book, “I do not have to comment at length on the Attorney-General himself. His behaviour described in these pages condemn him completely. He made false statements, he misled his King, he assisted his Prime Minister in a journey into the darkness of lawlessness and pushed the judges into that special perdition reserved for guards who betray their trust.”
We have to fall back on Rais’ book once again for another view.
“It is significant to point out that the Attorney General, Abu Talib Osman, who was completely relied upon by the Prime Minister during the crisis, played an outstanding role in the removal of Salleh.”
Why not review?
What finality is Nazri talking about? And why is the Cabinet echoing him? What facts is he falling back on to suppress the truth from emerging? Let us look at a few precedents.
Didn’t the Federal Court undertake to review its own decision in Datuk Seri Anwar Ibrahim’s corruption case? Didn’t the same Federal Court, which had earlier upheld the Anwar’s conviction, agree to review its own decision? One may or may not agree with the outcome of the review but there was at least a finality to that case.
Nobody then screamed that there should be no review or took an uncompromising stand that the Federal Court’s earlier decision should not be disturbed.
And let’s look at cases involving election petitions. Until recently there was no recourse for appeal. But it has now dawned upon the authorities that there must be a provision to allow for such an appeal in all fairness. Why didn’t Nazri oppose this development?
It is absurd for Nazri to insist that unless “anyone of the judges who had sat on the tribunal came forward and said that they were instructed to find Salleh guilty”, there would be no review. He is being naïve to expect this to ever happen.
But we are told that HRH the Sultan of Johor told Salleh in no uncertain terms that he very much regretted what had happened to Salleh and that HRH had been “made use of”. The person responsible for triggering off the entire controversy has stated that he was “made use of”. Doesn’t that amount to something? Shouldn’t this be sufficient to review the 1988 episode?
And Nazri should also get his facts correct. With reference to Salleh’s five-point new and important facts, Nazri told the Cabinet that the five incidents did not merit a review as they had occurred before the tribunal was formed. This isn’t entirely true because the fifth incident that relates to HRH the Sultan of Johor actually took place long after the tribunal was formed.
Nazri must realise that there can be no closure in Salleh’s case without a review. There can be no finality without an appellate decision. This injustice that was inflicted on Salleh will not be put to rest and will linger on as a festering wound that needs remedial treatment.
Why are Nazri and the Cabinet afraid to allow this review? Are they afraid because many of them did not stand up then for the Judiciary? Are they afraid that the truth will expose all those who pretend to stand on high moral ground when they did not have the courage to stand up for justice and truth in 1988? Or are they worried as Salleh’s sacking was so closely related to a crucial court case involving UMNO?
Let us extricate ourselves from this shameful past and come out as honourable men who are very concerned about justice and truth. Let us pay heed to the wisdom in Confucius’ saying, “A man who has committed a mistake and doesn’t correct it is committing another mistake.”
Let us also be guided by the powerful statement of Blaise Pascal, “Justice and power must be brought together, so that whatever is just may be powerful, and whatever is powerful may be just.”
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