RCI on judicial misconduct must start from 1988 scandal

Kua Kia Soong, Free Malaysia Today

The Cabinet has agreed to form a Royal Commission of Inquiry (RCI) to look into allegations of judicial misconduct after a top judge recently sounded the alarm over claims of abuse and interference in the judiciary. Whether or not this is the best timing for such an RCI when the details of the relevant cases have yet to be elucidated, one would hope that the terms of reference of this RCI will include the circumstances that led to the infamous assault on the judiciary in 1988.

The judiciary was forever changed by events in 1988 during Dr Mahathir’s term. When the results of the Umno elections were challenged by Team B under Tengku Razaleigh and Mahathir’s reign was threatened, he responded by launching an assault on the judiciary that resulted in the sacking of the Lord President and several other Supreme Court judges. This was accomplished during a climate of tension created by the infamous ‘Operation Lalang’ when more than a hundred innocent Malaysians were detained without trial under the ISA. The Tunku, at the time in his twilight years had enough perception and integrity to see how Operation Lalang had been orchestrated:

“Umno was facing a break-up. The Prime Minister, Dr Mahathir Mohamad’s hold on the party appeared critical when election rigging was alleged to have given him a very narrow victory over Tengku Razaleigh. The case alleging irregularities brought by Umno members was pending in court. If the judgement went against him he would have no choice but to step down. So, he had to find a way out of his predicament. A national crisis had to be created to bring Umno together as a united force to fight a common enemy – and the imaginary enemy in this case was the Chinese community.” ( K.Das/ Suaram: ‘The White paper on the October Affair and the Why? Papers’, Suaram Petaling Jaya 1989: 10)

In the Foreword to ‘May Day for Justice’ written by Tun Salleh & K. Das after the sacking of the Lord President, the Tunku further wrote:

“I do not know how any honourable government can stay in office after this book has been published. It constitutes a denunciation which cannot be answered without confessing to the most dishonourable conduct in public life…it struck a terrible blow, not only to the independence of the Malaysian Judiciary – and ruined the careers of at least three honourable men – but to national pride itself.”

In another Foreword, the Hon Justice Michael Kirby CMG Commissioner of the International Commission of Jurists (ICJ) had this to say:

“Singled out for particular mention was the concern of the ICJ about the campaign of attacks on the judiciary by the Prime Minister of Malaysia, the inducements made to the Lord President to resign his office quietly, the apparently biased constitution of the tribunal set up to enquire into his removal, the inclusion in the tribunal, as its chairman, of a judge who succeeded to the Lord President’s office, the unprecedented action of that judge in securing the removal and suspension of Supreme Court judges who provided a stay to allow the constitutionality of the tribunal to be tested in the Malaysian Supreme Court, and the “unpersuasive” report of the tribunal following which the Lord President was removed.”

The highly respected former Lord President Tun Mohamed Suffian bin Hashim had this to say on the sordid affair:

“The disgrace brought to Malaysia by the Prime Minister Dr Mahathir Mohamad in dismissing the Lord President, Tun Salleh Abas, and two senior Supreme Court judges will long hang round his neck like an albatross. What the PM did astounded the nation and the appalling news was swiftly spread to all four corners of the globe…Tun Salleh has since revealed all the facts leading to, and regarding the so-called inquiry into his alleged misbehaviour. Facts which because of the Prime Minister’s total control of the mass media he was able at the time to keep from public knowledge and which were also kept out of the knowledge of the two foreign members of the Tribunal who came from Sri Lanka and Singapore.” (K. Das, ‘Questionable Conduct over that May day Caper’, 1990)

The Malaysian Bar Council at the time also did not mince their words in a statement:

“From the Prime Minister’s attacks on the Judiciary, it appears that he seriously misconceives the doctrine of the separation of powers…It is not for the Executive to tell the judges how to construe the laws.”

In 1990, the Leader of the Opposition Lim Kit Siang alleged:

“The Prime Minister and the Attorney-General had refused to throw light on this shocking discrepancy, which raised doubts as to whether the Prime Minister ever had an audience with the Yang Di-Pertuan Agong on 1 May 1988…Grave doubts and mystery surround the judicial crisis of 1988…” (K. Das, ‘Questionable Conduct over that May Day Caper’, 1990)

There were many other eminent jurists from around the world who were aghast at this flagrant assault on one of the vital institutions of any democracy: Geoffrey Robertson QC; Hugo Young; P.N. Bhagwati, Former Chief Justice of India; Prof. Andrew Harding writing for the Commonwealth Judicial Journal; Bernard Levin of The Times, London; Professor F.A. Trinidade of The Law Quarterly Review; Nihal Jayawickkarama of the University of Hong Kong. All of them were quite clear in pointing their fingers at the Prime Minister of the day for the sacking of Lord President Tun Salleh Abas, namely, Dr Mahathir.

In his book ‘May Day For Justice’, Tun Salleh Abas’ denunciation of then Prime Minister Mahathir begins on the first page itself:

“When all else is forgotten, this question alone may remain to haunt us: Did I lie when I said the Prime Minister of Malaysia accused me of being biased in cases involving the political party, Umno? Did I invent this story that the Prime Minister raised the matter when he gave me the reasons why I was found unsuitable to remain Lord President of the Supreme Court of Malaysia and should therefore step down? That because of my speeches about Umno I was biased as a judge? I have no doubt – and few would now disagree – that it was the Umno saga that led to my destruction as a judge.”

With these many references by some of the most eminent jurists in the country and the world regarding the scandalous assault on the Malaysian Judiciary in 1988, it would be equally dubious if the terms of reference of the current RCI on the Malaysian judiciary do not cover the 1988 affair.

Dr Mahathir and the crypto-Mahathiristas will never succeed in warping Malaysian history as long as there are still good men and women ready to defend the truth, justice, democracy and human rights…

Kua Kia Soong is the adviser to Suaram.