Saturday, December 31, 1988

Mayday For Justice

Mayday For Justice


May Day For Justice

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by Tun Mohamed Salleh Abas, Former Lord President, Supreme Court of Malaysia, with K Das

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IF MY PATIENCE SHOULD CEASE TO BE
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To tell the truth to a person commissioned to rule is faithful allegiance. To conceal it is treason. - Saiyidina Abu Bakar.
The ultimate cynicism is to suspend judgement so that you are not judged. - Marya Mannes, More In Anger, 1958.
The letter from Justice Abdul Razak Abu Samah was dated 21 March, a week before I was due to leave for the United States for medical treatment for a detached retina of my left eye.
It was a long letter expressing serious concern over all the attacks and in particular, the Parliamentary assault on the Judiciary by the Prime Minister. I reproduce the letter, addressed to me and copied to the Chief Justice (Malaya), Tan Sri Abdul Hamid Omar, in toto, because it is in many ways representative of the sentiments felt by the judges at that time:
"I would like to refer to the speech made by the Right Honourable the Prime Minister in Parliament which was published in the The New Straits Times on 18 March, 1988, attacking unjustly in my view, the position and acts of judges.
"In my view it is necessary for you to provide us with guidelines as to how judges should act to deal with cases pertaining to the Government if they should arise before them, directly or indirectly, since it would appear that the Government expects to win all their -cases, and if not, judges would themselves 'be put on trial' by the Prime Minister, and while doing so tarnish and soil their good names and reputations. It may well be that in due course, if patience shall cease to be the better part of me, I shall in turn retaliate with all conceivable means, which act would certainly be most undesirable. It is clear in my view, that the Purpose of this oral abuse is to instil fear in the minds of judges, which is clearly an act of contempt. If this is the case, then clearly Justice as construed by the Prime Minister is Justice for the Government only and not for others.
"In my view we cannot remain silent on this matter. If the Prime Minister is of the view that it is proper, in order, and civil, for him to rebuke and tarnish the good name and reputation of judges openly in public, I feel there is no alternative but for us to react likewise, otherwise the consequences would be disastrous.
"In this regard, it is in my view, quite in order for us to act firmly and fearlessly to reply in the Press on the points raised by the Prime Minister, stating what our view is with regard to the public abuse by the Prime Minister. It would appear, whether it is true or not, there is ignorance in the comprehension of the Prime Minister that the concept of natural justice and mala fides are not applicable to the circumstances surrounding us, which is clearly not true.
"What makes the situation currently even more chaotic is that the Prime Minister evidently refuses to accept the principle that the duty and function of the court is to question and correct the acts and conduct of the Executive when it ventures outside the bounds of the law, and this should be made known to them.
"I also wish to suggest that in this respect, as I have suggested a short while ago, as a means of achieving consensus in cases involving the Executive and in order that we are not seen by the public to be in conflict in our decisions, that all judges of the Supreme Court confer and discuss informally and arrive at a consensus on any particular issue. In my view it is because of this apparent conflict that doubts and misunderstandings exist in the minds of those who are ignorant of the law, especially in those who are directly affected."
Copies of this letter (the original of which was written in Bahasa Malaysia) were also addressed to all the Supreme Court judges.
It was, as we can see, not a run-of-the-mill every day letter. The Parliamentary Act amending Article 121 was anathema to the judges. It was aimed at the jugular vein as far as the Independence of the Judiciary was concerned. Justice Abdul Razak was understandably incensed. He was not alone.
Whatever the opinions or feelings this strongly worded letter may have immediately inspired in the other judges who received it, I myself thought 1 should call together as many judges as possible for an urgent meeting-
The urgency was at least partly dictated by my plans to go overseas for medical treatment. At my age - I was in my 59th year - it would have been foolish to delay the treatment recommended for my ailment. Vision, as the poet John Milton put it is one "talent" which is "death to hide". 1 could hardly function if my eyesight were badly impaired. If there had been no such urgency, then it might well be that 1 would have hastened more slowly, and organised a very much larger quorum of judges to meet together for a more thoroughgoing deliberation.
But I did not, and that, too eventually constituted the tenuous and rather precious "evidence" that I "lied."
The judges met in the ante-room of the Supreme Court Room No. 1 on Friday, 25 March, one week after those debilitating and shameful Constitutional Amendments were made. Because of the speed with which the meeting was called, no outstation judges could attend. The twenty who were present on that day and signed the list (See Appendix 1 for a reproduction of the original) were the following:
1. Tun Mohamed Salleh Abas, Lord President.
2. Tan Sri Wan Suleiman Pawan Teh, SCJ.
3. Datuk George Edward Seah Kim Seng, SCJ.
4. Tan Sri Hashim Yeop Abdullah Sani, SCJ.
5. Datuk Gunn Chit Tuan, J.
6. K. C. Vohrah, J.
7. Tan Sri Eusoffe Abdoolcader, SCJ.
8. Datuk Mohamed Yusof Mohamed, J.
9. Abdul Razak Abu Samah, J.
10. Datuk Anuar Zainal Abidin, J.
11. Datuk Ajaib Singh, J.
12. Datuk N. H. Chan, J.
13. Datuk Siti Normah Yaakob, J.
14. Datuk V. C. George, J.
15. Datuk Shaik Daud Mohamed Ismail, J.
16. Tan Sri Wan Hamzah Wan Mohamed Salleh, SCJ.
17. Tan Sri Haji Mohamed Azmi Kamaruddin, SCJ.
18. Tan Sri Abdul Hamid Omar, Chief Justice (Malaya).
19. Datuk Mahadev Shankar, J.
20. Tan Sri Syed Agil Syed Hassan Barakbah, SCJ.
There was no doubt that the judges present were highly disturbed by the Prime Minister's conduct, and it was quickly agreed that something must be done.
The unanimity of the prevailing sentiment must be clearly noted. There was no dissenting voice. There were, on the other hand, some opinions which were stronger than others in that they recommended drastic action.
One was for a public statement to be made, in the media, to explain in detail what the issue was. All but two of the judges turned the idea down.
It also became clear during the meeting that while the judges were extremely unhappy they were by no means inclined to any confrontational course of action. Essentially they wanted an end to the distressing climate the Prime Minister had single-handedly created. So, not surprisingly, they settled for a solution which called for politeness, decorum, common sense and some kind of mediation. It was finally agreed - unanimously, let me emphasise this very strongly, it was agreed unanimously, - that representation should be made to His Majesty The Yang Di-Pertuan Agong to resolve the problem.
There was no suggestion that the judges wanted any action against the Prime Minister. They did not even want a public airing of their concern in the press. The clear hope was that His Majesty The Yang Di-Pertuan Agong and the Honourable the Prime Minister would mingle their minds with the noble intention of bringing peace to the judges who felt harassed, keeping very much in mind what the new Constitutional Amendments implied.
1 must say, in case there are doubts in any quarter, that the judges most assuredly felt they were being treated with contempt. Justice Abdul Razak's letter provides a good barometer of the feeling with which the atmosphere was charged.
It should be stressed here that among the 20 judges present were 9 of the 10 Supreme Court Judges, and included the Chief Justice (Malaya), Tan Sri Abdul Hamid and Supreme Court Judge, Tan Sri Hashim Yeop Abdullah Sani. I single out these two names for reasons that will become rather obvious as 1 go on.
And the decision was to write a letter to His Majesty The Yang Di-Pertuan Agong, basically expressing a consensus of unhappiness over the Prime Minister's extraordinary behaviour. Neither of these two Supreme Court judges objected to the final decision reached by the meeting. I may note, however, that Tan Sri Hashirn did express the need for caution in proceeding with the business. Why he thought fit to do so - since we were all only too aware of the highly sensitive nature of our undertaking - was not clear to me at the time, but it did provide me some food for thought in the sad days to come.
Then a drafting committee of three - consisting of Supreme Court Judge Tan Sri Mohamed Azmi Kamaruddin, Supreme Court Judge Tan Sri Wan Hamzah Wan Mohamed Salleh and High Court Judge Abdul Razak Abu Samah - was appointed to prepare the letter. The letter was to be ready that afternoon, to be signed by me when I returned after Friday prayers and lunch.
When I returned to my Chambers in the afternoon, however, the letter was not ready as the judges had not progressed very far with the draft. I therefore invited them to my Chambers, and with their assistance, I drafted the letter. I then called my Malay stenographer and dictated the draft in their presence. After that had been done the draft was shown to them, and when the necessary corrections were completed, the draft, as amended, was again given to my Malay stenographer for retyping.
The following is a translation (and not the official version, I may note) of the letter which was addressed to His Majesty The Yang Di-Pertuan Agong and copied to each of Their Royal Highnesses the Rulers of the nine Malay States:
"I, as Lord President, on behalf of myself and all the judges in the whole of Malaysia humbly and with due homage wish to express our sentiments regarding the development of the relationship between the Executive and the Judiciary.
"We feel disturbed because various comments and allegations have been made by the Honourable the Prime Minister against the Judiciary, not only outside but inside Parliament.
"We are nevertheless exercising restraint and do not wish to reply to these adverse remarks since such an act would not be in accord and consistent with the position of judges under the Constitution. And according to Malay custom such an act would not be becoming or proper. [See Appendix Ill for Bahasa original and the official translation of this passage]. It is to be remembered that we as judges are appointed and conferred with the authority by Your Majesty and the Malay Rulers to preserve, protect and defend the Constitution. As such it is clearly proper for us all to exercise restraint in the interest of the nation.
"In addition, the said allegations and comments have brought disrepute and caused us mental anguish in carrying out our duties in a correct and proper manner. We cannot but feel embarrassed because we cannot avoid being looked upon with contempt by those who do not appreciate our position under the Constitution.
"This letter is intended to serve as a means of conveying our feelings to Your Majesties in the hope that these baseless remarks will cease.
"In conclusion, I respectfully and humbly beg for your pardon and do homage to your Majesties.
"I humbly pray."
I should note here that although there were only 20 judges at the 25 March meeting, 1 wrote that 1 was making my representation on behalf of all the Malaysian judges. This was blown up into a great issue later. It may be noted here, too, that 1 sent a copy each of this letter, to all the judges, whether or not they were present at that historic meeting.
The covering letter which was addressed to the judges of the Supreme Court and the High Courts, with copies to the Chief Justices of Malaya and Borneo respectively, and was couched in the following words.
Re Executive Criticism Against The Judiciary
"A meeting of all Supreme Court and High Court judges resident in Kuala Lumpur was held this morning in the ante-room of the Supreme Court regarding the continuous verbal attacks on the Judiciary made by the Prime Minister.
"It has been decided that judges should not react publicly by making any statements and that if any statement is to be made in public it should be left to the Lord President.
"In the meantime it has been decided that a letter will be sent to all the individual Rulers [the hereditary Sultans of the Malay States] to acquaint them of our feelings and frustrations which not only lowers our dignity in the public eye but also obstructs the proper functioning of the courts."
This letter was dated 25 March, 1988, that is, the same day the letter to His Majesty The Yang Di-Pertuan Agong and the Sultans was drafted.
Among the 20 judges who attended the meeting were, I may note again, all except one of the Supreme Court judges, and that was the Chief Justice (Borneo), Tan Sri Lee Hun Hoe. It so happened that he was not in Kuala Lumpur at the time.
Since I was the Lord President, writing in consultation with all but one of the Supreme Court Judges, on a matter of importance affecting the Judiciary as an institution, it was, I thought obvious, perfectly reasonable to say that I was indeed writing on behalf all the judges who constituted the Judiciary.
It is normal practice for the head of any organisation or institution (whether it is the Prime Minister's Cabinet or the Society for the Prevention of Cruelty to Animals) to express the opinion, feeling and attitude of the body of people of which he is the head. Indeed he is expected to do that. In the case at hand, none of the judges present at the meeting objected to writing the letter, nor did a single judge in the country subsequently dissociate himself from it. And that, in fact, includes the ones who sat on the Tribunal to investigate me.
On the contrary the letter drew positive responses from many outstation judges after the authorities had suspended me from office. One judge wrote later:
"This letter was written with the full appreciation of the possibility that its contents will become known to and considered by the relevant authorities. However, as an officer who had received much guidance, training and considerate treatment from you, I wish to express my grief at the measures taken against you.
"Although I was not one of the judges who participated in making the decision to send the letter in question, after receiving a copy of it and reading its contents, in my opinion the step taken to send the letter was just and proper according to our practice and custom. Thus it saddened me when such a letter is made an issue to challenge your sincerity, and loyalty to the Rulers. This [sincerity and loyalty] is fully proven by recent decisions in cases involving the Government.
"What is more saddening is that you are the only one who is to face the Tribunal in connection with the disciplinary action taken, though the responsibility also lies with those who agreed to have the letter sent, and those who retroactively became jointly responsible, including me, for the action taken in sending the letter.
"I pray that God protects your good name and the happiness of your family in this world and in the Hereafter."
This letter was dated 24 June, 1988. Earlier, another outstation judge, in a letter dated 13 June, 1988, had written:
"It grieves me that so much controversy has arisen from the letter which you sent on behalf of the judiciary to DYMM The Yang Di-Pertuan Agong and DYMM the Rulers. I wish to assure you of my full support of your action in sending the letter. Had I been present at the meeting of the judges which resolved on the course of action which you took, 1 would have expressed my support of the resolution in person."
These letters are sufficient to indicate that I had the backing of the judges generally, including those outstation judges who did not attend the meeting, or at least, these letters coupled with the fact that there were no reservations expressed, let alone a single adverse comment from any one of them, entitled me to assume that I had the full support of the judiciary.
In this context it will not be out of place for me to quote a letter from one other outstation judge, not on my letter to His Majesty The Yang Di-Pertuan Agong but on the speech I made on 12 January, 1988 which was the basis of one of the charges. The feeling expressed in it was unmistakably in line with what all of us felt. The letter was dated 20 June, 1988 and read:
"I wish to thank you for enclosing a copy of your speech at the launching of the two books recently on 12 January, 1988. It makes so much better reading when it is in extenso than reports in the press after [the editors] have dismembered it.
"If I may be permitted to say so, 1 like your central theme that the people should learn to trust the courts more. 1 suppose we can't blame them [the people] if they trust us less when they [the authorities] continue to say untrue or unfair things about us. Speaking personally, when we pray so [much] to be just and fair, and [pray] that we be guided at all times, and then we get these unjust and unreasonable criticisms, it makes it very painful to bear.
"In this matter what is regretful, though, after your speech exhorting everyone to let things be, [Education Minister YB Anwar [Ibrahim] stirred it up again in Penang. People reading his speech may get the wrong impression, that Judges] cannot be criticised. Through appeals [to higher courts] judges and judgements are being criticised and attacked every day of the week. We feel nothing. In those instances, when we have erred and are rightly corrected, it is done in the right forum, by people rightly put there to judge us. But unhappily the impression one gets is that judges cannot be criticised. 1 think the whole point has been missed.
"It is when they say we are biased or corrupt that we take exception...."
I have to preserve the anonymity of these writers. They were concerned about the independence of the judiciary, not their own security. However, a formal document which can be published in full was a statement by the High Court Judges of Borneo:
"This statement is made with reference to the letter written by Yang Amat Arif, Ketua Hakim Negara, [Lord President] Tun Dato' Hj. Mohamed Salleh bin Abas to DYMM Seri Paduka Baginda The Yang Di-Pertuan Agong,, dated 26 March, 1988, a copy of which was extended to each of us.
"We have no objection to the said letter being written on our behalf"
The statement was dated the 16 July, 1988 and signed by the following Judges of the Borneo High Court:
1. Datuk Tan Chiaw Thong J, of Kuching, Sarawak;
2. John Chong Yik Liong J, Kuching, Sarawak;
3. Datuk Charles Ho Nyen Cheung J, Kota Kinabalu, Sabah;
4.Denis Ong Jiew Fook J, Miri, Sarawak, and
5.Datuk Chong Siew Fai J, Sibu, Sarawak.
Considering all these letters, we have to ask: was it logical, let alone honest, to claim that I was writing on behalf of only the Kuala Lumpur Judges?
My letter to The Yang Di-Pertuan Agong was prepared on a very busy Friday since 1 was leaving for the United States on the Monday following. I had other duties to perform, and had to find time to set several office matters in order before my departure. One of the tasks was to write an important note to Tan Sri Abdul Hamid Omar:
"I shall be away in the United States for about two weeks beginning Monday, 28 March in connection with my eye treatment. Enclosed please find a copy of my letter to YAB Perdana Menteri. During my absence, I hope that all sensitive cases, like the Karpal Singh appeal and UMNO cases not be listed for hearing until my return."
This letter was as much a matter of courtesy as it was to prevent any misadventure through any unforeseen breakdown in communications, for I had already informed my Senior Assistant Registrar, Cik Soo Ai Lin of these matters in an earlier note to her dated 18 March. Given the disturbing nature of the prevailing situation, I thought it best to be present personally when these sensitive cases went to court.
The Karpal Singh appeal was a highly controversial one. The UMNO case was even more so. It would have been remiss of me as Lord President if I did not handle them with particular care.
It might well be that my desire to be back in the country during the hearing of these cases was what inspired the Prime Minister to allege later that I showed bias in the UMNO cases. This is only speculation on my part, but in the absence of other evidence I cannot help but wonder if this was so. He later said 1 had made "speeches" showing bias in UMNO cases. Then he denied having said any such thing. But I cannot help thinking he entertained these baseless suspicions. The only "speech" I made on the subject was to indicate that I wanted to be involved personally when these sensitive cases came up for hearing.
The letters to His Majesty and the Malay Rulers were signed by me on Saturday, 26 March. The responsibility for the dispatch of these letters was undertaken, at my behest, by Tan Sri Mohamed Azmi Kamaruddin. That Saturday was notable for another event. The Star which had been suspended from publishing on 28 October appeared in the streets again with a huge headline, "WE'RE BACK". But as we were to discover, it was not exactly the same Star of October 1987. (The other papers were also free to publish again, but one of them, Sin Chew Jit Poh, never recovered from the blow of Operation Lalang: its financial woes had grown in that time, and it was already under receivership.)
Two days later, on 28 March, I left for the United States as planned. I note here that some time before I left, Tan Sri Hamid intimated to me that he wanted to go on leave immediately upon my return, and this I had agreed to. But when I eventually came home I found he was no longer keen to leave. I shall come to the importance of this change of heart in the proper place.
When I arrived in Los Angeles where I was to spend the night, I was informed that His Royal Highness Sultan Ahmad Shah of Pahang was then in San Francisco with his consort, HRH the late Sultanah who was undergoing medical treatment for what turned out to be a fatal illness. By a coincidence, Dr. Mahathir also happened to be in Los Angeles, apparently on a private visit. So neither of them would have been aware of my fateful letter addressed to His Majesty and the Malay Rulers. I make this point partly because His Royal Highness, despite his busy schedule and sorrowful days with his ailing consort, was one of the two Rulers who actually replied, rather than simply acknowledged my letter. And my letter to him also figured very prominently - if very strangely - in subsequent events.
On the next day, 29 March, 1 left Los Angeles for Washington and then to Johns Hopkins Hospital in Baltimore where I spent one week being treated by the eye specialist, Dr. Ronald Michael. He confirmed that what was done by Dr. Shukri in Kuala Lumpur had been both necessary and beneficial for my eye.
On 5 April I left for London where I underwent a general medical check-up. In that time I also made some courtesy calls on British judges, including the new Lord Chancellor, Lord Mackay of Clashfern, PC, as it is normal practice to do so.
It was while I was in London that I decided to go to Mekkah on a long pilgrimage.
I have been to Mekkah before, but in London this time, with the fasting month of Ramadan approaching, and being deeply disturbed by all the affairs at home, I felt a great urge to go to the Holy Land and spend the time there in fasting and prayer. Ramadan, of course, is the holiest month in the Muslim calendar. In the Islamic tradition it was the month in which the Holy Quran was revealed to mankind.
Accordingly 1 wrote to the Prime Minister and informed him of my proposed leave of absence until 17 May when I planned to return home. I then left London for Jeddah on 14 April.
My plan was to cut myself off completely from the world during the entire month of Ramadan and read only the Holy Book during that period. Indeed the last newspaper 1 did read was on 14 April and I noted that it was on the day the hijacking of the Kuwaiti airliner was reported. Until 16 May, 1988, I did not read any newspaper or try to discover what was going on in the world. In effect then, for an entire month, 1 was a recluse.
On 16 May, I left Jeddah for Kuala Lumpur.
I had no idea at the time that even going on leave to undertake a holy pilgrimage was being subjected to critical examination in Kuala Lumpur. 1 was to discover later that forces were already at work in my absence searching assiduously to find some fault or other with me, even in that simple matter of going on leave. For there was an investigation of what looked like a suspicion that 1 was taking more vacation leave than I was lawfully entitled to. The investigation, I discovered with some astonishment, was at the behest of the Prime Minister himself!
It is another dreadful commentary of the Independence of the Judiciary that even on ordinary matters such as taking leave, the Lord President appears to be under the control of the Prime Minister, that is, the head of one arm of the Government not only appears to rank below, but was subservient to, the head of another. It is, of course, patently wrong. But over the years judges had been treated with such dignity and decorum by all the previous Prime Ministers that they apparently did not even consider suggesting changes to the system of administration. But obviously it was a very unfortunate kind of optimism (or was it naivete on our part?) which nurtured this gross oversight in the minds of so many learned judges over so many years.
On 17 May I landed in Kuala Lumpur at about 6.00 a.m. It was the morning of Hari Raya Puasa. It was the day, traditionally, of rejoicing after a month, not only of abstinence but also continence and prayer. And more important, it was a day for ending old quarrels and forgiving old mistakes. The greeting, Maaf Zahir Batin! exchanged between Muslims everywhere craves forgiveness for the all the sins of omission and commission, of the mind and body, over the year past. One does feel the better for this soul-disburdening act of contrition.
I was looking forward to going home to my family, but I could not forget that there were official obligations to fulfil. It was too late to get dressed and attend the reception at Istana Negara and pay my respects to I-Es Majesty The Yang Di-Pertuan Agong; my colleague, the Chief Justice, would have to go in my official stead as well as on his own behalf. Indeed he did go, as 1 was to discover about ten days later.
But on Hari Raya Puasa day, though it was too late for me to attend that Royal function, 1 felt there was still time to go home for a brief pause, change, and go and extend my Hari Raya greetings to the Prime Minister at his residence. It was an annual ritual which few senior public officials fail to perform. Official protocol did not demand my attendance but the traditions of Malay courtesy did.
I arrived at the Prime Minister’s residence at noon, after driving through one of the worst traffic jams I have ever encountered, taking a whole hour to travel from Jalan Conlay to Sri Perdana, the Prime Minister’s official residence, in the Lake Gardens, a journey of about four kilometres. In the end it was only a "one-minute" visit, for there were the usual "open house" crowds, milling about to catch a glimpse of this august personage or that, and to pay their respects to the Prime Minister. In the crush of people there was no opportunity even for a bite to eat.
The Prime Minister appeared normal and we exchanged the traditional greetings. The atmosphere was charged with the implications of that Muslim greeting as well as with the relaxed pleasantries after the rigours of fasting. Crowds, men, women, children, there were smiles of contentment after the month of abstinence from many of the ordinary indulgences of daily life.
There was nothing in the Prime Minister’s words or demeanour that day to indicate that he was unhappy with me, or that anything untoward was about to happen. We must remember that 16 days earlier, on that bizarre May Day which now lies in limbo, he (presumably) already had that mysterious audience with the King when His Majesty allegedly complained about my letter. But on 17 May he greeted me - Maaf Zahir Batin! - without the slightest hint that a full scale investigation into my conduct was in progress. Indeed investigations should have been virtually over, for eight days later, on 25 May, the Prime Minister was to write to His Majesty and tell him 1 must be removed from office for "misbehaviour". Was he concealing it from me on the morning?
Why would the Prime Minister hold back the news from me on that Holy Day? Was it too heavy, too official to mix with the celebration of a Holy holiday?
Or was there a simpler and far more powerful reason for the silence? Was there a reason that goes back to a question of fact or fancy of that audience with His Majesty on the Sunday-or-Wednesday May Day? Was there perhaps no dissimulation on the part of the Prime Minister at all? Perhaps he was concealing nothing? Perhaps nothing had happened as yet to need any concealment?
On that happy Hari Raya morning, of course, I was blissfully free of all these suspicions and doubts. So with my official obligations done I hurried home to my family.
The following day, 18 May being a holiday I spent quietly, and on the next day 19 May, I went to back to work.
The first indication that my letter to His Majesty The Yang Di-Pertuan Agong and the Malay Rulers may have been less than well- received came that morning when my secretary showed me a letter from His Royal Highness the Sultan of Pahang. It was strongly worded in parts, suggesting that I should not expect too much as Lord President. The letter did not show much sympathy or understanding for the dilemma the judges had found themselves in vis-a-vis the Prime Minister's tirades against the judges.
I may observe here that HRH Sultan Ahmad Shah had been the 7th Yang Di-Pertuan Agong, reigning for five years from 1979 to 1984, and that it was in his reign that I was elevated to the position of Lord President.
I may also point out that the letter from the former King did not even hint that I had committed such a gross error in conduct that I should quit my post forthwith. His letter most certainly did not say that I had "misbehaved" in any way.
Another letter, from HRH The Sultan of Kelantan which I received later, however, was of quite another tenor. There was no hint of criticism at all.
The other Rulers, through their private secretaries, also replied, but only acknowledging receipt of the letter. Not one of them gave any indication that I had misbehaved in writing the letters to them.
And taking all the letters together, I had no reason to feel in any way disturbed, least of all alarmed. It was not satisfying, of course, but 1 had not expected any precipitate or dramatic action on behalf of the judges by their Royal Highnesses. I only hoped that there would be quiet discussions among themselves behind the scene to put an end to the grave disquiet which prevailed.
Also, after my long absence 1 needed time to let an the impressions sink in before making any judgement on the matter.
The second surprise was a letter from the Prime Minister’s office to the Registrar of the Supreme Court inquiring about my leave eligibility. It was dated 18 April, 1988.
It is not unusual for the head of any Government department to check on the records of leave of his staff. But for the Prime Minister to look into the matter involving the Lord President himself was something else. He was not my superior in a Government Department. If I "applied" for leave to him, it was a matter of keeping him informed for administrative conveniences and as a matter of courtesy, no more.
In any case the fact was that 1 had accumulated far more unused vacation leave than 1 could conceivably use in the near future. With that sobering discovery, apparently, that line of inquiry dried up.
The next surprise was another letter (dated 25 April, 1988) from one of Dr Mahathir's senior officials, the Secretary-General of the Ministry of Justice, Dr. Mazlan Ahmad, (later to be appointed Secretary to the Judicial Tribunal which "investigated" my case), also to the Chief Registrar, Supreme Court, inquiring about the principles I applied in appointing Commissioners of Oaths. This was obviously not a question of pure academic interest to any Prime Minister. So why the inquiry?
Commissioners of Oaths have to be respectable people, of good standing, but they do charge fees for their services. For some retired professional people, it might be a small living, I imagine, even a sinecure. Was there a suspicion, then, that I was giving away licenses corruptly to friends and family? Why else would such an inquiry be initiated by the Prime Minister? The discovery of the letter, of course, made it plain that the Prime Minister did not have much confidence in my integrity.
Whatever the reason for the Prime Minister's investigation, the principles I applied for making these appointments were demonstrably above board: they were the same as those used by my predecessors - Tun Azmi Mohamed and Tun Mohamed Suffian Hashim. And so once again the investigation seems to have reached a dead end.
These "investigations," let us note well, were already under way in April, long before the Prime Minister’s mysterious "audience" with His Majesty The King on May Day. Had the "mission impossible" of finding faults which did not exist, already begun? These suspicions were given added weight by subsequent events as we shall see.
The other curiosity I discovered on this return from Mekkah was that Tan Sri Abdul Hamid who was supposed to go on leave immediately after 1 came home, had decided not to go. It was really very odd because he had made his plans so early, to go around the world, and indeed, at one point, had started his journey and gone as far as Singapore. Why did he suddenly cancel what I understood to be very complex, well-matured plans?
These were all, at the time, minor distractions. More irritating was a bad cold I was suffering from. 1 went to see my doctor and was told to take a week's leave and rest at home. I had to argue against the advice because 1 had just returned after a prolonged absence and there was much work to do. There were some very important cases pending. I finally a~ to take two days’ leave instead.
On Saturday, 21 May the Chief Registrar, Encik Haidar Mohamed Noor came to see me at home regarding some documents which I had to sign. During the course of our conversation he said that Tan Sri Abdul Hamid Omar was in Singapore with his daughter and son-in-law (who, incidentally, happens to be Justice Datuk Harun Hashim's son) who were on their way on a round-the-world trip. Encik Haidar then added that Tan Sri Hamid was cancelling his own vacation abroad because, according to the Chief Justice "something big was happening."
Encik Haidar did not know (or say) what that "something big" actually was, and 1 did not pay too much heed to this piece of what I thought was gossip at the time.
On the following day, 22 May, 1 travelled to lpoh for one of the regular sittings of the Supreme Court. The other judges were Datuk George Edward Seah Kim Seng and Tan Sri Hashim Yeop Sani. Datuk George Seah and 1 stayed at the Royal Casuarina Hotel, while Tan Sri Hashim stayed at Tambun Inn, an old, run down place. I could not understand why he wanted his privacy so much at that time that he chose discomfort? He explained that he liked Tambun Inn. It was very difficult to understand his choice.
Staying separately at two different hotels also seemed very odd because it would have been sensible to stay together and use the opportunity to discuss some of the matters which could arise in court. Also, having been away for several weeks 1 expected to catch up with the several events of the period by talking to the two judges.
Finally, Tan Sri Hashim was a particularly good friend, if not the closest friend 1 ever had. But it was quite obvious he wanted to be alone with his thoughts - or at least he needed to be without our company.
On the next day, 23 May, we discussed the BMF case which was to be heard on 13 June. Both Tan Sri Hashim and Datuk Seah, having read the latest records of the case advised me that the matter had become academic because Encik Lorrain Esme Osman, the principal figure in the case, was being held in London, still fighting against his extradition to Hong Kong, -could not attend the hearing in Kuala Lumpur. The BMF scandal involving 2.5 billion Malaysian dollars in lost monies, incidentally, continues to brew in the courts in London and Hong Kong.
They both agreed with me that the case should be taken out of the calendar. They also agreed that the date thus vacated could be fixed for the crucial "UMNO 11 " appeal.
In view of the importance of the "UMNO 11 " case I then decided on a full coram of 9 judges to hear the appeal. The tenth Supreme Court judge, Tan Sri Syed Agil Barakbah was about to retire very shortly. Nine would constitute the correct, odd-numbered coram.
There has never been an occasion in the history of the country in which almost the entire Supreme Court (or its predecessor, the ..e(era Court) had sat on a case. The normal coram was 3 or 5. A coram of seven or nine was unheard of in Malaysia, but of course it was by no means unthinkable. The U. S. Supreme Court invariably sat in full coram. The full bench of the Indian Supreme Court of 13 often sits 11 of the judges in important cases, leaving the other two free in case they were urgently needed elsewhere in that vast country. In a small country like Malaysia 3 was normal and five, not unusual. Nine had never sat. But we were living in extraordinary times - and this was indeed an extraordinary case. To put it plainly, the fate of the Prime Minister hung in the balance weighing the case, and that made it very, very special indeed.
Would a coram of 9 mean packing the court in favour of the plaintiffs and against the interests of the Prime Minister?
Popular argument certainly ran that way, insinuating that the majority of the Supreme Court Judges were not well disposed towards the Prime Minister.
I think it is one of those articles of popular but perverse wisdom which judges must take note of but also ignore in the course of their adjudications. It has been said, not unjustly, that ordinary "men and women love justice greatly, and just men but little." No matter. Judges must not concern themselves with being in any popularity contest. To repeat what that far wiser man than I has said, we judges must rely on our conduct to be its own vindication. We should not be swayed by the fancies of the popular imagination as politicians are, and must.
I considered the "UMNO 11 " appeal urgent because of the speeches made by the Prime Minister attacking the Courts saying, among other things, that there was a conflict between Justice Datuk Harun Hashim's oral and written judgements, a speech, let it be said, which amounted to being in contempt.
I must also observe here that judges do not jump at every opportunity to cite people for contempt. It is a foolish view given currency later by at least one person who should have known better, that because the Prime Minister was not cited for contempt, his criticisms amounted to fair comment! That is the kind of sterile logic that gives some lawyers a bad name. Most judges are fully aware that their actions, particularly contempt actions, must never tend to stifle criticism as such if democracy itself is to survive.
Now this might also be the right place to make clear, in view of another rather foolish observation ' later made on the subject by allegedly learned persons. Judges cannot, and do not, cite people for contempt when remarks are made outside the courts. Such suits are brought by the Attorney-General, or by people from outside the courts, if the Attorney-General consents.
In our system of justice the Attorney-General is perceived as a guardian of the public interest, and for this responsibility he is, and ought to be answerable to Parliament and to the legal profession. That is why, in the older Commonwealth countries, the Attorney-General is a member of Parliament and is selected from amongst practising barristers. Sitting judges do not cite people for contempt after reading newspaper reports. it is basically up to the Attorney-General.
Nor is a finding of contempt something judges indulge in casually or hastily. To repeat a useful thought, the power of contempt is not meant for use by judges as some kind of sword of Damocles to stifle criticism altogether.
Now there were these serious suggestions of bias and prejudice in the Judiciary. The Prime Minister had said in one Parliamentary speech that it was common talk that certain judges were good for political cases and others who were not so good. It is an idea which reflects that same popular wisdom 1 referred to earlier. There may be some truth in it, but let me say that it does not make the claim a truism - to be bandied about as a high general principle. Parish pump banter and village coffee shop politics should amuse us, not amaze us, let alone inspire us to run amok - nor, indeed, inspire contempt proceedings.
1 might say, then, that the very perversity of the myth being promoted, demanded that justice clearly be seen to be done.
And it seemed to me that one of the ways to eliminate suspicion, particularly in view of the heavy political overtones surrounding the case, was to review the case before a full Bench, allowing every variety of judicial opinion available to come to bear on the matter. If there were 11, 13, or 15 Supreme Court judges in Malaysia, I suppose 1 would have listed them all.
It is also obvious that by including all the judges I eliminated any suggestion of bias on my own part: no one could then say I "picked" the judges or "packed" the bench. I was not selecting the judges.
So it was that I instructed my Senior Assistant Registrar, Cik Soo Ai Lin at about 5 p.m. on 23 May, 1988, to fix the case for 13 June with a full coram of all the Supreme Court judges available. Present in the Chambers of Datuk Peh Swee Chin at that time were Datuk George Seah, Tan Sri Hashim Yeop Sani and High Court Judge, Datuk Abdul Malik Ahmad.
I also instructed Cik Soo to fix Encik Karpal Singh's appeal on 15 June before a coram of five judges, the same coram which sat on the United Engineers Malaysia (UEM) case. That coram, it will be of interest here, had ruled 3 to 2 in favour of the Government, with my own ruling being one of the three in favour. I have been criticised for that judgement for "bending on the side of the establishment", but that is really another story. Let me therefore make only a passing observation on that case: 1 may seem conservative, but I believe that a legal system should adhere to a clear distinction between criminal and civil law. If there was corrupt practice in that case, as it was later proved in the BMF affair, it is the responsibility of the Attorney-General, as "the guardian of the public interest", to bring the matter to court. No one in his right mind would argue that it is in the public interest that these cases should not be prosecuted or the wrong-doers sheltered.
The urgency of the Karpal Singh appeal was due to the fact that the Supreme Court's decision was being awaited by the Ipoh High Court in order to make a ruling in the second habeas corpus case filed by the same ISA detainee. In fact the Attorney-General himself requested the Supreme Court during my absence to have the case heard earlier. But because of my instructions to Tan Sri Hamid in March, the Attorney-General's application had to await my return.
Cik Soo carried out my instructions early next morning by calling one of her colleagues, Encik M. Gunalan in Kuala Lumpur so that the necessary letters to the judges were prepared for my signature, and notices of hearing sent out to counsel. Extra copies of the appeal records of the "UMNO 11 " case were requested from solicitors for the appellants for the use of the nine judges and these were already stamped with the judges' names for delivery to them. In fact the firm of Messrs. Rashid and Lee, solicitors for some of the respondents, had already received the notice of hearing before I returned to Kuala Lumpur.
It is interesting that on 23 May, the day I was deciding on a coram of 9, a letter was being written by the solicitors of some of the other 11 UMNO appellants, Messrs. Shafee and Co., requesting, in view of the importance of the case, a sitting of the full bench. Of course I did not see the letter for several days for reasons that will be obvious as I go on. I may observe, however, that my decision was not inspired by Shafee and Co. Indeed, I believe that a number of people in the legal and judicial professions already had the same idea independently.
Meanwhile, on the next day in Ipoh we attended a dinner hosted by the Perak Bar, and on the day following, 25 May, after the Supreme Court had concluded its sitting, the three of us judges paid a courtesy call on our former colleague and former Lord President, Sultan Azlan Shah. These, I might say here, constitute some of the pleasures and diversions that Supreme Court judges enjoy on their outstation sittings.
Late that afternoon, after a lunch hosted by Justice Datuk Peh Swee Chin, I left by car for my home town of Besut, in Terengganu, for a brief visit. The other two judges, Tan Sri Hashim Yeop and Datuk George Seah, presumably, returned to Kuala Lumpur and their normal duties
I did not know it then, but on that day, Wednesday 25 May, a busy "Cabinet" day, the Prime Minister wrote to His Majesty the King again on the matter of my letter. I shall come to the point of that second communication shortly. Meanwhile, as I was saying, I was on my way to my kampung in Besut.
The following morning, 26 May 1 spent pleasantly in the familiar surroundings of my childhood and early youth. 1 used to go to school there. In the days of the Japanese occupation during World War II, 1941 - 1945, this was the place, as a boy, where 1 helped my mother sell bananas and vegetables to help balance the family budget.
The kampung folk came to talk to me about their problems, and 1 sensed that in the villages people still felt a certain helplessness in coping with the problems of living in the modern, fast changing world. They were largely poor people and sought advice as well as comforting. We chatted about many things including the weather. It was a bittersweet experience.
In the afternoon, after lunch, 1 left for Kuala Lumpur. Going back to the home-town or kampung every year for Hari Raya Puasa is almost an instinct and the pull is irresistible for most Malays. I was late this year, but 1 was glad to have managed it. It is always a joy to be among the simple people to whom honesty is not a particular virtue to sing about, but an attribute it would be too complicated to live without. As Charles Montesquieu put it, "I like peasants - they are not sophisticated enough to reason speciously." And 1 was about to run into vast acres of specious reasoning indeed, and in the not too distant future!
On the road to Kuala Lumpur my car telephone rang. It was my secretary, Encik G. M. Unnithan. He informed me that the Prime Minister wanted to see me at 1 1.00 a.m. on the following morning. 1 made a note of it but did not think too much of it.
I did meet the Prime Minister from time to time on administrative matters, and I thought it must be for some such routine discussion. There were always chores to be done. One judge was about to retire. There were vacancies to be filled.
I reached my home in Kuala Lumpur in the evening and went to work as usual on the following morning.
The date was 27 May, 1988. It was to become a memorable date for me. But even more noteworthy was the date, one day earlier, 26 May, when 1 had spent the day, so free of care, amid the familiar scenes of my early life. For when the Prime Minister took action, he decided to tell me about it one day late, on 27 May. For according to him my suspension from office by His Majesty The Yang Di-Pertuan Agong took place one day before he, the Prime Minister, actually informed me of it. That may not sound odd, but the manner in which it was done, as we shall see, was very puzzling, if not entirely queer.
Without trying to conjure up something metaphysical, when the axe actually fell, retroactively, as it were, I was blissfully unaware of it. I was then innocently enjoying the sea breeze blowing in from the South China Sea.
And yet the man responsible was the same man who had made the memorable remark to the retired Auditor-General, Tan Sri Ahmad Noordin Zakaria, following the latter's famous report on the BMF scandal. The Prime Minister wrote, if I may repeat what I can describe only as words bristling with righteous indignation:
"You have created doubts and suspicion about them without their being able to clear themselves. It is elementary justice that people must be allowed to give their side of the story."
Elementary justice?
We were to learn a great many things indeed about the Prime Minister's notions of "elementary justice", and the need for people to give "their side of the story," in the painful days and weeks to come.