A rare breed: An honest, courageous judge who rushed to defend the independence of the judiciary

Friends! We are gathered here today on a sad occasion to honour the memory of a dear friend.

Many changes have taken place since my retirement in 1982 nearly 20 years ago. In my time and for several years after, when a judge or ex-judge passed away, to honour his memory, his fellow judges and members of the Bar would gather in a ceremony presided over by the Lord President himself. It was a gracious gesture much appreciated by the ex-judge’s widow, children and other relatives. Now all that has changed, as if the passing away of a judge or ex-judge is regarded as something of no consequence, to be welcomed rather than regretted.

One thing that distinguishes our late friend was his courage. In the flurry of court cases that ensued following the blow that hit Tun Salleh, the then Lord President, the number two judge was himself involved as respondent, and so was the number three judge, leaving Wan Sulaiman as the most senior judge. He did not hesitate to take the lead and summoned a session of his brother judges to rush to the defence not just of Tun Salleh but of the existence and independence of the judiciary – as did the Bar too. Tan Sri Hamid Omar knew that should anything happen to Tun Salleh he was to be his successor. The AG who was supposed to assist the Tribunal by putting before them all the facts pro and con, instead acted as a prosecutor. He did added bitterness of an old junior towards Tun Salleh, his old boss in the AG’s chambers.

Whatever the defence, ably led by Raja Abdul Aziz, did, they faced a brick wall. Little wonder that the Tribunal swiftly recommended Tun Salleh’s removal, and he was swiftly removed. The news of the devastation that hit the judiciary resounded throughout the world and reached me in Geneva, where friends asked me what sort of country Malaysia was. I was at a loss to explain and, for the first time in my life, I felt ashamed of being a Malaysian.

Swift action was taken against Wan Sulaiman and the other four judges who had agreed to act with him to save Tun Salleh. The Chairman of the Second Tribunal withdrew on the defence’s application, in contrast to Tan Sri Hamid’s refusal to withdraw from the Chair of the First Tribunal because he said to do so would be tantamount to treason as if people did not know that the Yang diPertuan Agong appointed him on the PM’s advice, which His Majesty had no alternative except to comply. Swiftly, the Second Tribunal too recommended the removal of two of the five judges. Swiftly, they paid the price.

A wave of horror swept throughout South East Asia and the Commonwealth.

Swiftly, Tan Sri Hamid fixed a meeting of the Federal Court which gave judgment in the Prime Minister’s favour, thus enabling him to remain Prime Minister for 12 more years until today.

I had predicted that our judiciary would take a whole generation to recover from the assault. Now that more than 12 years have elapsed, I doubt if the judiciary would recover in a generation from today.

Judges who joined in downing their boss have been rewarded by promotion. Judges who did not, have been cowed into silence. Judges are at sixes and sevens. Some daren’t speak to each other. While there are judges whose integrity and impartiality have never wavered, the public perception is that the judiciary as a whole can no longer be trusted to honour their oath of office. When I am asked what I thought, my usual reply is that I wouldn’t like to be tried by today’s judges, especially if I am innocent.

Senior non-Malay members of the Bar who had rushed to the defence of the independence of the judiciary, who grew up when bahasa was not taught in school, have been punished by acceleration of the introduction of Bahasa Malaysia in court proceedings; some have been forced to abandon practice.

Right or wrong, the public perception is that some lawyers will always win their cases; some will always lose.

Right or wrong, the public perception is that the law is no longer certain: some things have been turned on their heads. You might win in the lower court but when you are taken to a higher court you face another hurdle.

It is not enough for Government to have confidence in the judiciary if the public does not. It is not enough for courts only to go through the motion of a trial. It is not enough if justice seems to be done if in fact justice has not been done.

Friends! You will join me in conveying my sincere condolences to his widow and children. We have only lost a friend. They have lost a husband and a father.