Thursday, April 17, 2008

Is Abdullah Defying Cabinet To Apologise?

Much has been said of the claimed decay in the legal system since the second phase of Mahathir Bashing had to succumb to the voices of dissent from the legal community, interest groups and opposition.

In the latest breaking news by Rockybru preceeding the much awaited dinner tonight, Leslie Lopez of Spore's Straits Times anticipated an announcement by Abdullah for Judicial Commission to appoint judges, greater independence for the judiciary, financial compensation to sacked judges, and expression of regret by PM Abdullah.

Tonight's dinner hosted by the Bar Council at JW Marriott is sponsored by the Government. Abdullah is due to deliver a speech entitled "Delivering Justice, Renewing Trust".

In an earlier attempt, apology proposal by Zaid Ibrahim, the new Minister in charge of Law in JPM was shot down by the Cabinet. Even Karpal Singh voiced criticism towards Ambiga, the Bar Council president for supporting an apology without prior determination of the offence. He prefered a Royal Commission.

Is Abdullah defying his Cabinet? Or has he found the right olive branch to move ahead without sparking further problems within his party? Or will he be willing to undergo the long drawn process of a Royal Commission

To many readers, lets recap of the event form the written account of Tun Salleh Abbas and George Seah.

Tun Salleh Account

The following is the account by Tun Salleh based on his private notes and was reproduced in Aliran Monthly, soon after his dismissal in 1988 (quoted from Anil Netto):


When I arrived at the Prime Minister's Department I was met by a policeman who took me by lift to a waiting room. After waiting for about two or three minutes, I was shown into the Prime Minister's Office by an officer, whom I did not recognise. There I found YAB Perdana Menteri (then Prime Minister Mahathir Mohamad) seated at his table with YAB Encik Ghafar Baba, Timbalan Perdana Menteri (then Deputy Prime Minister) and Tan Sri Sallehuddin Mohamed, Ketua Setiausaha Negara (the then Chief Secretary to the Government) seated at the same table opposite the Prime Minister. When I entered the room I gave the Prime Minister and the others my salam very loudly and he replied my salam. (Peace be on You).

After I had taken my seat, the Prime Minister told me that he had an unpleasant duty to perform and on being asked what it was, he replied that he had been asked by (the then) DYMM Seri Paduka Baginda Yang Di Pertuan Agong to tell me that I should step down. I then expressed my surprise in an Islamic way saying "Glory to God, who is free from any partnership." Then I asked him for the reasons and in reply he said that he was not prepared to argue with me, but finally he said the reason was that I had written a letter to DYMM Seri Paduka Baginda Yang Di Pertuan Agong regarding the state of relationship between the Judiciary and the Executive. I told him that I wrote the letter simply because Judges, at a meeting on 25 March 1988, had informed me that they were very concerned about the present situation and asked to express their views through me. YAB Perdana Menteri then said that I made speeches indicating that I am biased and I am not qualified to sit in UMNO cases. I told him that I said nothing of that and the speeches I had made only dealt with the criticisms levelled at the Judiciary. I am not at all biased or bipartisan in political matters. While all this was going on, YAB Encik Ghafar Baba kept his head down while Tan Sri Sallehuddin was writing in a note book, which he was then holding.

When finally I said I would not resign, he told me that if I stepped down I would be given everything that I was entitled to. I told him that I was entitled to nothing since I was not yet 60. Obviously, he was surprised when told I was not 60 yet. Finally, he said that if I did not step down he would institute a Judicial Tribunal with a view to removing me. I told him I would not resign because if I did, I could not show my face to anyone and I might as well die.

He said that I could see the Agong if I wanted to and he would not stop me from doing so.

I told him that I would not be resigning and he could do what he pleased with me, including going ahead with the Tribunal. As there was nothing else to discuss, I finally said "Datuk, I should not waste anybody's time", and I shook his hand, also Encil Ghafar Baba's and Tan Sri Sallehuddin's. None of these three looked me right in my face and I could detect Encik Ghafar Baba was strangely silent and Tan Sri Sallehuddin only caught me by the side of his eyes but he too appeared to be subdued.

The Prime Minister himself, from the beginning to the end, did not even look me in the eye. He was looking down at his table all the time.

I left his room and I only saw one policeman outside his room who appeared surprised to see me there. When I went downstairs there was nobody even to see me off and no one called for my driver. I had to go out to look for my driver.

My future is tied up with the fate of this country. I come from an unknown family and I have reached the top of my profession. I have no desire to leave until I have reached the age of 65 like my predecessors, except the Sultan of Perak, who vacated the job because of a call of duty to be the Ruler of Perak. I leave my fate to the judgment of Allah and as it is Friday, I wish to quote the Quran, which says, "No misfortune will fall on us except what has been decreed by Allah. He is our protector and in whom the believers should place their trust." This passage from the Quran struck my heart as I entered the door of the Prime Minister's Office and it remained with me during the course of our discussion till the end, and to my exit from his room.
George Seah Account

This account by Datuk George Seah obtained from the blog Jebat Must Die provides another aspect of the case.

It all started on the 24th April 1987. The then Prime Minister Datuk Seri Dr Mahathir Mohamad just won a bitterly fought battle for the Umno presidency by a majority of 43 votes. Even though in the run up to the elections, Tengku Razaleigh only received 20 over nominations from Umno divisions as compared to 100 over by Dr Mahathir, the thin majority he received during elections were a surprise to many pundits. Subsequently, the losers (Team B) unable to accept the defeat, began to find faults within the election system. Note that several current ministers in the cabinet now were part of this Team B such as the Prime Minister himself (Datuk Seri Abdullah Ahmad Badawi), Datuk Seri Rais Yatim, Datuk Shahbery Cheek, Datuk Seri Nazri Aziz, Datuk Shahrir Samad etc.

A civil suit propagated by a meeting at Datuk Seri Abdullah Ahmad Badawi’s house were filed by a band of 11 Umno members in the high court. Among the plaintiffs’ lawyers were Datuk Seri Sheikh Radzi and Marina Yusuf. They sought to annul the elections based on unregistered Umno branches and therefore hoping the courts would declare that the elections were null and void and have no effect. However in the end, on 4th February 1988, the presiding judge, Dato Harun Hashim declared that Umno itself is an unlawful society (due to some branches were not registered), and since Umno is an unlawful society, the Umno 11 have no legal standing to seek reliefs from the courts. His exact words were:

“... as members of UMNO, cannot acquire any right which is founded upon that which is unlawful. The Court will therefore not lend its aid to the reliefs sought by the Plaintiffs (UMNO 11). Having said that, I do not think it is necessary to deal with the other issues and I accordingly dismissed the Plaintiffs’ claim”.
In other words, Umno was declared illegal and unlawful through the undoing of Umno 11 who tried to find small technical errors in order to overturn the recent Umno elections to their favour. Basically, the oldest Malay institution were rendered powerless by a bunch of extreme sore losers (Team B). It is so irresponsible for certain quarters to accuse Dr mahathir as the main villain in deregistering Umno in 1988.

For several months leading to the sacking, the government had lost several landmark cases against them. Even an ISA detainee Karpal Singh, whom had incited racial tension and hatred in October 1987 was released by the Supreme Court only on the basis of technicality. This made the government nervous since having a strong power of the legislation is very important in order to run the country efficiently. Dr Mahathir made scathing attacks towards the judiciary by declaring them to be too fiercely independent up to a point of willing to jeopardize the security of the nation. He famously told Time Magazine about what he thinks of the judiciary:

“The judiciary says (to us), ‘Although you passed a law with a certain thing in mind, we think that your mind is wrong, and we want to give our interpretation.’ If we disagree, the Courts will say, ‘We will interpret your disagreement.’ If we [the government and Parliament] go along, we are going to lose our power of legislation. We know exactly what we want to do, but once we do it, it is interpreted in a different way, and we have no means to reinterpret it our way. If we find out that a court always throws us out on its own interpretation, if it interprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish.”
With that in mind, several judges began to feel uneasy by the attacks from the legislative branch of the government especially the ones made by the then Education Minister, Encik (now Datuk Seri) Anwar Ibrahim in Penang whereby he accused the judges as wanting to be above criticisms. Hence, a complaint letter was drafted and signed by 20 judges to be sent to the then Agong on 25th March 1988.

Cross referencing with what Tun Salleh Abas mentioned in his book, May day For Justice, (let me point out here that in its foreword, Tunku Abdul Rahman, our first Prime Minister, claimed that any Lord President is beyond reproach. Lord Presidents must never be questioned or removed as the thought of removing a Lord President is very repugnant. I find it a bit odd as we as a person will not escape making mistakes or immune to temptations. We are not ‘maksum’ like the Prophets of God) he said that Tun Hamid Omar were showing odd behavior prior to his suspension by ways of cutting short his intended holiday as well as seemingly working against him behind his back. Along with another 3 judges, Tan Sri Hashim Yeop Sani, Dato Harun Hashim and Datuk Ajaib Singh, we can see that a major conspiracy had taken place behind Tun Salleh’s back which was spearheaded by Tun Hamid Omar.

To cut the story short, Tun Salleh was suspended on the 26th May 1988 and was eventually charged on 4 counts of improper conduct and misbehavior unbecoming of a Lord President. Among others, were the distribution of letters to all rulers dated 25th March 1988 which the Agong took exception. This date would be the point of reference for all the subsequent events that will flow through. In other words, the conspirators used this letter to tarnish the Lord President’s good name. As he was on holiday leave in Los Angeles and London and then umrah in Mecca for nearly 8 weeks, there were ample time and space for the conspirators to make their move. Upon returning on the first day of Raya on 17th May 1988, Tun Salleh’s fate had in fact already been sealed.

Please take note that the Prime Minister at that time had no powers to remove the Lord President as evident in the Article 125(3) of the Constitution:

“If the Prime Minister, or the Lord President after consulting the Prime Minister, represents to the Yang Di-Pertuan Agong that a Judge of the Supreme Court ought to be removed on the grounds of misbehaviour or of inability, from infirmity of body or mind or any other cause, to properly discharge the functions of his office, the Yang Di-Pertuan Agong shall appoint a tribunal in accordance with Clause 4 and refer the representation to it; and may on the recommendation of the tribunal remove the Judge from office.”
And the infamous Tribunal was duly set up. Headed by Tun Hamid Omar himself as the Acting Lord President. Two days before the commencement of the tribunal, the other rulers met Tun Salleh Abas and they were willing to forgive him for the breach of protocol in the said letter. But to his utter dismay, the Agong was adamant in his decision to suspend him.

In another incident, Datuk George Seah expressed his disbelief in knowing that it was Tun Hamid Omar who had complained to the Prime Minister which led to the setting up of another tribunal, chaired again by Tun Hamid Omar to suspend all five Supreme Court judges. The five judges were deemed guilty by 2nd tribunal for issuing an Interim Order to challenge the legality of the first Tribunal.

It was interesting to know that before the Interim Order was sealed by the 5 judges, the most senior judge after the Lord President, Tan Sri Wan Sulaiman had invited Tan Sri Hashim Yeop Sani to be part of the 5 judges but was vehemently declined by the latter saying that if he did, then they ”would be staging a revolution” which he did not agree with. Around this time, a famous high court judge whom had declared Umno illegal a couple of months earlier was promoted by Tun Hamid Omar to be one of the Supreme Court judge. Incidentally, Dato Harun Hashim and Tun Hamid Omar are related to each other as in-laws. Tun Salleh even stated explicitly in his article that he was most suspicious of the conduct of several of his so called friends whom are Tun Hamid Omar, Tan Sri Hashim Yeop Sani, Dato Harun Hashim and Datuk Ajaib Singh during the preceding weeks leading up to his sacking.

In the end, together with Tun Salleh Abas, Datuk George Seah and Tan Sri Wan Sulaiman were removed from office. This sad episode actually illustrates the huge chasm of the interpretation of the law between 2 branches of the government. Dr Mahathir strongly believes in the reason and the spirit of the law while Tun Salleh Abas upholds the sanctity and purity of judges and the law. One believes in the power of the legislation while the other advocates the total and absolute independence of the judiciary. Both are correct. Both are wrong. The coin has two sides.

More interesting also is the revelation by Tun Salleh Abas that - “although the Prime Minister at that time was deemed responsible for bringing down the judiciary, the judiciary itself could not have been brought down without the help of its own self. But there were also desperate judges then who had no qualms about stabbing a friend in his back in order for their own dreams to be fulfilled”.

There were indeed victims of the whole drama. The people involved and the system. Obviously during the fight for supremacy only 1 side will prevail. However it did not justify the use of guile by some of the judges. Tun Salleh Abas stressed that Tun Hamid Omar tried to undermine his appointment as Lord President in 1984 and repeatedly made unilateral decisions during his tenure as Acting Lord President in 1988.
Now was it teh indiscretion of Dr Mahathir or Tun Hamid Omar that is at fault?
The fact and questioned that remain is why must the judicial reform take form today after 4 years in power and after suffering a disastrous election? Why can't the judicial reform be proactively undertaken after the 2004 election, which was already stated in the 2004 BN Election Manifesto?

This is likely to be another of Abdullah's stunt to remain in power. Nothing else.

He does not contribute anything in the last four years but mere destructions, slogans and announcements. What would spur him to do things differently and more dilligntly, when he can't even do it with 90% control of Parliament? Will this move earn him brownie points from UMNO Divisions clearly demanding his resignation?

1 comment:

Malayu said...

Voice,

Got here from thru your comment over the frustrated judges ex gratia issue on chedet.com.

Thanks and salaams.

My Say