THE TUN SALLEH SAGA (by Dr. Mahathir)

Friday, June 6, 2008

THE TUN SALLEH SAGA

1. When the Government gave ex-gratia payments to the judges involved in the Tun Salleh Abas removal as the Lord President of Malaysian courts, the question that needs to be answered is whether it is because of Government regrets over something that happened not during the period this Government was in power or is it because of a desperate attempt to win support after the disastrous results of the election of 2008.

2. Had the present Government felt regret, it should have paid ex-gratia payment (for want of a better term) upon achieving power. But obviously it only felt regret lately, after its brand new de facto Minister of Law, who incidentally was suspended for money politics, suggested the move in order to win the approval of the Bar Council.

3. But what was at the back of this political feeling of guilt by this Government. Was it because of the injustice done? Or was something unfair and unlawful committed by the previous Government.

4. Most people know about Tun Salleh’s dismissal but few care to find out what really happened. Some believe that the action against Tun Salleh was because he had proposed a panel of 12 judges to hear the appeal against Judge Harun Hashim’s findings that UMNO was an illegal organisation. Others believe it was because he was biased against UMNO in his judgements.

5. None of these is true. Tun Salleh had not been biased against the Government. He dismissed the application by Lim Kit Siang in the case involving UEM and the Government, for an interim injunction made by a lower court in a lengthy judgement made by him as President of the Supreme Court. In numerous other cases his judgement favoured the Government. As to the panel to hear the appeal against Judge Harun Hashim’s findings, a bigger panel could actually be good for UMNO, which wanted nothing more than the validation of the election results making me President and Ghafar Baba Deputy President. Whether the panel rejects or approves Judge Harun’s decision, UMNO and UMNO Baru would not be affected.

6. The truth is that the case against Tun Salleh was triggered by his letters to the Yang di Pertuan Agong which were considered by the Agong as being highly improper and insulting to him.

7. In his first letter Tun Salleh had written to DYMM YDP Agong complaining about the noise made during some repair work at the Agong’s palace near Salleh’s house.

8. This alone can be considered as very improper. A man as senior as he was could have asked to see the Agong and verbally informed him about the noise.

9. But to compound the act of les majesté he sent copies of his letter to the other rulers. This implied that he did not have faith in the Agong and wanted the other Rulers to apply pressure on him.

10. This was followed by another letter to DYMM YDP Agong complaining about the behaviour of the executive i.e. the Prime Minister. Copies of this letter were also sent to the other Rulers.

11. In this letter Tun Salleh said inter alia, “All of us (the judges) are disappointed with the various comments and accusations made by the Prime Minister against the judiciary not only outside but inside Parliament.”

12. He went on to say in his letter “the accusations and comments have brought shame to all of us and left us mentally disturbed to the extent of being unable to discharge our functions orderly and properly.”

13. He asserted that he and all the judges “do not like to reply to the accusations publicly because such action is not compatible with our position as judges under the Constitution …. And as such it is only proper for us to be patient in the interest of the nation.”

14. This statement was obviously untrue as before the letter was sent, in a speech at the University of Malaya when he was receiving his honorary doctorate, he complained about “the judiciary being placed in the social service category” inferring that this was not in keeping with “the rule of law” and that the “priority of the courts should be altered so that freedom is guaranteed and work is not disturbed.”

15. He went on to say “the officers of the public service (i.e. judges) do not have a lesser role and function to play then the roles played by the politicians.”

16. Further he said, “This matter becomes aggravated if the rights involved in a decision made by an official are related to judicial matters because this will result in a very important question that is interference with the independence of the judiciary.”

17. Again when making a speech at the launching of a book “Law, Justice and the Judiciary, Transnational Trends” Tun Salleh had said, among other things, “The vital constitutional principle is so settled that no question should really arise concerning the position of the judiciary under the Constitution. But recently this guardianship has been made an issue and our independence appears to be under some kind of threat.” He added, “This is amply borne out by some of the comments made recently which embarrassed the judiciary a great deal. These remarks not only question our neutrality and independence but the very value of it as an institution ….. Our responsibility of deciding the case without fear or favour …. does not mean that the court decision should be in favour of the Government all the time…….”

18. “Apart from this,” he continued, “the problem of maintaining judicial independence is further complicated by the fact that the judiciary is the weakest of all the three branches of the Government.”

19. “What matters most in order to enable us to save the system from disastrous consequences is that we judges must act with responsibility and dignity and not be drawn or tempted into an impulsive action which could only result in aggravating the situation.”

20. These two speeches were delivered on 1st August 1987 and 12th January 1988 respectively. But Tun Salleh’s letter to the King was dated 26th March 1988. As I pointed out earlier it is not true that he did not speak about his accusations against the Government in public because he maintains that “such action is not compatible with our position as judges under the Constitution” and that “it is only proper for us to be patient in the interest of the nation.”

21. All his statements in these two speeches clearly contain his criticisms of the Prime Minister and the Government long before he wrote his letter to the King.

22. Another point raised in his letter to the Agong is that “the accusations and comments have brought shame to all of us (judges) and left us mentally disturbed to the extent of being unable to discharge our functions orderly and properly.”

23. In Section 125 of the Federal Constitution, under clause (3) the grounds for removing a judge, apart from misbehaviour include infirmity of body or mind or any other cause, properly to discharge the functions of his office.”

24. By his own admission Tun Salleh was not able “to discharge his functions orderly and properly.” He was therefore unfit to continue to be a judge.

25. Section 125, Clause 4 provides for “the Yang di Pertuan Agong to appoint a Tribunal …. and refer the representations to it, and may on the recommendation of the tribunal remove the judge from office.”

26. The two letters from Tun Salleh were regarded by the Agong as being highly improper and insulting particularly the copies sent to the other Rulers.

27. During one of my weekly meetings with the Agong, DYMM expressed his annoyance over the letters and simply requested that I dismiss Tun Salleh Abas from being the Lord President of the Malaysian Courts. He writes in his own handwriting his request on the margin of Tun Salleh’s first letter, regarding the noise made by the work on the Agong’s residence.

28. To the Agong it was a simple matter. He had appointed the Lord President and therefore he was entitled to remove him. I thought it was best for me to inform Cabinet and seek the advice of the Attorney-General.

29. I must admit that Tun Salleh’s complaints against me in his letter annoyed me. It is true that I had criticised the judges for interpreting the laws passed by Government not in accordance with the intention or objective of the laws. I did suggest that if the laws were interpreted differently from what the Government and the legislators intended, then we would amend the laws. During a cabinet meeting I had in jest quoted Shakespeare’s words, “The first thing we do we hang the lawyers.” Only a nitwit would think that I meant what I said literally. But apparently lawyers and judges took umbrage over what I said and regarded me as their enemy (about to hang them, I suppose).

30. I also criticised judges for making laws themselves through their interpretations and subsequently citing these as their authority. I believed that the separation of powers meant the Legislators make laws and the judiciary apply them. Of course if the laws made by the legislators breach the provisions of the constitution, the supreme law of the land, then judges can reject them.

31. Again some judges simply refused to hear cases involving the death penalty, pushing these unfairly on to other judges.

32. It is the view of most jurists that “It is not wrong for any member of the public or the administration to criticise the judiciary. “Justice is not a cloistered virtue.” (Peter Aldridge Williams QC).

33. The above writer quoted McKenna J “There is no difference between the judge and the Common Man except that one administers the law and the other endures it.”

34. Yet Tun Salleh took the view that I was subverting the independence of the judiciary when I expressed views on how judges frustrated the objectives of the legislators.

35. Through the grapevine I heard of the judges’ displeasure with me. But I did not take any action, certainly not to remove Tun Salleh. I only acted after the Agong complained about the two letters.

36. The Cabinet agreed that we must adhere strictly to the provisions of the Constitution. I therefore advised the Agong that Tun Salleh could not be removed unless the Agong appoints a Tribunal to hear the complaints against him and make recommendations to the Agong.

37. Upon the Agong agreeing, the Government selected six judges and former judges for His Majesty to consider. The members included foreign judges in the person of the Honourable the Justice K.A.P. Ranasinghe, Chief Justice Democratic Socialist Republic of Sri Lanka and the Honourable Mr Justice T.S. Sinnathuray, Senior Judge of the Supreme Court of Singapore.

38. The Chairman was the Chief Judge (Malaya), Tan Sri Dato Abdul Hamid bin Hj Omar. The other members were Dato Sri Lee Hun Hoe, Chief Justice (Borneo), Tan Sri Abdul Aziz bin Zain, Retired Judge and Tan Sri Mohd Zahir bin Ismail, Retired Judge.

39. The inclusion of foreign judges was to make sure the Tribunal would not be biased.

40. It is unfortunate that Tun Salleh Abas refused to appear before the Tribunal. Instead he depended on his colleagues to try to prevent the findings of the Tribunal from reaching the Yang di Pertuan Agong.

41. What the five judges who were sympathetic to him did was certainly not in keeping with Tun Salleh’s expressed views in his talk during the launching of the book “Law, Justice and the Judiciary. Transnational Trend, “when he said “we as judges must act with responsibility and dignity and not be drawn or tempted into any impulsive action which could only result in aggravating the situation.”

42. The five judges had ignored rules and procedures and the requirement to get the approval of the (Acting) Lord President, as well as wait for the findings by Mr Justice Ajaib Singh on the same matter. Instead they cancelled courts sittings in Kota Bahru which were scheduled for the judges, and held a sitting of the Supreme Court in Kuala Lumpur to hear an application by Tun Salleh Abbas for prohibition proceedings to determine his position.

43. The Supreme Court of five judges with Tan Sri Wan Sulaiman presiding heard an ex parte oral application by Tun Salleh’s lawyer, retired for a few minutes, returned and unanimously made an order for stay restraining the Tribunal from submitting any recommendations, report or advice respecting the enquiry to His Majesty the Yang di Pertuan Agong until further order.

44. Subsequently the Acting Lord President, set up a Supreme Court of five judges which negated the decision of the Wan Suleiman Court.

45. I would like to repeat that despite public criticisms made against me by Tun Salleh, I did not take any action against him. I only did so after he insulted the Agong and the Agong requested me to have him removed. Of course some would still say I influenced the Agong. But throughout my 22 years I had never involved the rulers in politics or my personal problems. The records are there for all to see.

46. I was very concerned over the forcible removal of Tun Salleh. And so I tried to get Tun Salleh to resign on his own so as to avoid a scandal. He agreed at first but he withdrew the following day.

47. I then went about getting the Tribunal approved and set up. Naturally I had to consult the Attorney-General and others who were familiar with judges. Once the Tribunal was set up my involvement ended.

48. When Tun Salleh and the other judges had their services terminated, they should not be paid their pensions. But following appeals by Attorney-General I agreed that they should be paid their full pensions. They therefore did not suffer any financial loss and their pensions were computed from the time they left.

49. These are the facts relating to the dismissal of Tun Salleh. It was he and his fellow judges who brought disrepute to the judiciary.

50. I write this to record things as they happened. I do not expect my detractors to stop saying that I destroyed the judiciary. They are my prosecutors and they are also my judges. To them I will always be the Idi Amin of Malaysia as claimed in Tun Salleh’s book “May Day for Justice”. Sadly many who so readily condemn me were judges.