Five

‘May Day for Justice’1

H P. Lee ’

High among men's finer traits is their love of justice. Through history’s tornadoes and fitful gusts its flame has kept alive. Sometimes spluttering and flickering, sometimes waxing, sometimes waning, it has always been a reminder that men may look for a determination of their rights to a principle mightier than might alone. — C. G. Weeramantiy, Law in Crisis, at p.vii.

On 8 August 1988, Tun Salleh Abas, the Lord President of (the highest judicial officer of the land) was effectively ‘removed’ from office. In common parlance, he was ‘sacked’. His removal was made pursuant to the recommendation of a special Tribunal appointed purportedly in accordance with the provisions of the Malaysian Constitution. To the observer (who is unfamiliar with Malaysian politics) and to some Malaysian citizens (confronted with a govern­ ment controlled media), the removal seemed above board: there had been scrupulous adherence to the . May Day For Justice is the anguished account by Tun Salleh of the convulsion which occurred in the Malaysian judiciary and which resulted in his removal. The account preserves for posterity the shamefulness of the whole saga. It is the harrowing story of a man of simple roots and highest integrity being brought down by a web of lust for political power, greed for self-advancement and plain timidity in the face of a ferocious assault by the Executive on judicial independence. * * t Tun Salleh Abas with K. Das, May Day For Justice Magnus Books, , 1989. * Associate Professor, Faculty of Law, University of Melbourne.

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The reader of May Day For Justice would have no difficulty in deciding who were, in the end, the ‘heroes’ and the ‘villains’. The story has some bright sides: it tells of the courageous attempt by five Supreme Court judges valiantly to ensure compliance with minimum standards of justice to Tun Salleh — and they were steam-rolled in the process; it contains information on the inspiring role of the Malaysian Bar Council which despite potential vengeance by an unbridled Executive had attempted to plead for subservience to the rule of law. The crisis clearly rocked the Malaysian nation. It attracted national and international attention. On the national plane, the interest was aroused by the political as well as the legal dimension of the crisis. On the international plane, it was the implications for the independence of a highly respected judiciary which aroused critic­ isms from the international legal community. The 1988 is well documented.1 It is therefore pointless to recite the details of the whole affair except to highlight some main aspects. The chief protagonist, the Prime Minister (Dr. Mahathir), pointed to the writing of a letter by Tun Salleh addressed to the ‘Yang di-Pertuan Agong’ or King of Malaysia12 and the State Rulers as the reason for initiation of the removal process. Tun Salleh, however, highlighted Dr Mahathir’s growing unease with the independence of the Malaysian judiciary as the impetus which set in train the moves to oust him. Tun Salleh referred to a number of cases in which members of the judiciary had rendered judgments unpalatable to the Mahathir government. He documented the verbal abuse which emanated from the Prime Minister in response to the independent stand of the judiciary. It was all the more galling to Dr Mahathir to have a contempt of court action launched by the Opposition Leader against him (an action which was dismissed by die and, on appeal, by the Supreme Court). What was more crucial was the fact that the fate of the Prime Minister hung in the balance pending the outcome of an appeal case, the ‘UMNO 11’ case,3 before the Supreme Court.

1 See e.g. Harding (1990) 391.CL.Q. 57; Hickling [1989] PL. 20; Lee (1990) 17 M.ULM., 386 Trindade (1990) 106 LQ.R. 51. 2 The King at the time of the crisis was Sultan Mahmood Iskandar of the State of . 3 Mohd. Noor bin Othman v. Mohd. Yusof Joafar [1988] 2 M.L.J. 129.

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The political dimension became clearer when Tun Salleh set the saga in the context of the power struggle which had divided the dominant party (UMNO) of the ruling BarisanNasional coalition. UMNO (which stands for ‘United Malays National Organisation’) had dominated and still dominates (now as UMNO Baru) the Malayan and then the Malaysian political spectrum. The person who is elected the President of UMNO inevitably becomes the Prime Minister of Malaysia. By the time of the election for the presidency of UMNO in 1987, the cleavage in UMNO had resulted in two factions, both factions being headed by very determined and ambitious politicians : Dr Mahathir (heading ‘Team A’) and (heading ‘Team B’). The 1987 election was won by Dr Mahathir by a very slim majority of 43 votes: Dr Mahathir received 761 votes while his rival, Tengku Razaleigh, received 718 votes. The validity of this election was challenged by eleven dissatisfied members who alleged that a number of UMNO branches which had elected delegates to divisional conferences (who in turn had elected delegates to the general assembly) had not been registered by the Registrar of Societies, and that this was in clear violation of the Societies Act 1966. The High Court judge who heard the case simply held that UMNO by virtue of the existence of the unregistered branches had become an unlawful society. The case created utter confusion. The plaintiffs who wanted a declaration that the general assembly election itself was null and void appealed to the Supreme Court. Tun Salleh explained: 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... had sat on a case ... 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.4 Tun Salleh then stated how on 23 May 1988 he had instructed his Senior Assistant Registrar to fix the case for 13 June. While all these political developments were taking place, events on the judicial front were also occurring. The verbal onslaught by the Prime Minister against the judiciary proved too much for a judge of the High Court (Justice Abdul Razak Abu Samah). The judge felt so

4 Atp. 81.

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agitated that he wrote a letter to Tun Salleh in which he said, inter alia: 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 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.5 Spurred on by this letter, Tun Salleh decided to call together as many judges as possible for an urgent meeting. As he had to go overseas for medical treatment on 28 March 1988, Tun Salleh explained that the meeting was indeed speedily convened and in consequence no outstation judges attended. There were 20 judges at the meeting held on 25 March 1988. Among them were the Chief Justice (Malaya), Tan Sri Abdul Hamid, and Supreme Court Judge, Tan Sri Hashim Yeop. The meeting finally agreed unanimously that representation should be made to the King to resolve the problem: ‘And the decision was to write a letter to [the King], basically expressing a consensus of unhappiness over the Prime Minister’s extraordinary behaviour’.6 A drafting committee of three was appointed to prepare the letter. Eventually, Tun Salleh, with its assistance, drafted the letter. The letter was addressed to the King and copied to each of the Rulers of the nine Malay States. Tun Salleh provided the following translation (and not the official version) of the letter. 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.... 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

5 The letter is set out in full at pp. 67-68. 6 At p. 70.

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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. Tun Salleh entrusted the despatch of this letter to one of the Supreme Court judges in the drafting committee (Tan Sri Mohamed Azmi Kamaruddin). On 26 May, not too long after his return from overseas, Tun Salleh was informed on his car telephone that the Prime Minister wanted to see him on the following morning. At the meeting, Tun Salleh was told that his letter had incurred the displeasure of the King. According to Tun Salleh, the Prime Minister had said that he had been asked by the King to tell Tun Salleh that he should step down. Tun Salleh further alleged that the Prime Minister ‘then said I made speeches indicating that I am biased and I was not qualified to sit on UMNO cases’. Tun Salleh refused to resign. His refusal resulted in a letter from the Prime Minister on the same day to the following effect: In connection with our discussion this morning I wish to inform you that His Majesty [the King] has ordered that you be suspended from the post of Lord President with effect from 26 May, 1988, pending the matter being referred to a Tribunal and its report in accordance with the Federal Constitution. You will be informed of the sitting of the Tribunal shortly. It must be absolutely distressing for Tun Salleh to pen the following lines: In the course of that day, (as I was to discover), Tan Sri Hamid, having cancelled his leave, assumed the role of Acting Lord President. Obviously that ‘something big’ he had been anticipating had finally ‘happened’! He caused to be cancelled the 13 June UMNO hearing and the 15 June Karpal Singh appeal fixed by me.7 Tun Salleh proceeded to narrate the events which occurred from the time he was informed that he had been suspended to the time of the establishment of the tribunal purportedly in accordance with Article 125 of the Malaysian Constitution. An interesting part was the account of the moves initiated by some of the hereditary Rulers of the Malay States to effect a settlement of the crisis. The hereditary Rulers who are the Heads of State of 9 of the 13 states in the Malaysian

7 At p. 89.

47 Bulletin of the Australian Society for Legal Philosophy federation elect the King from among themselves every five years. Under the Constitution it is provided that ‘A resolution of the Conference of Rulers to remove [The King] from office shall not be carried unless at least five members of the Conference have voted in favour of it’.8 The Constitution also provides for consultation with the Conference of Rulers in respect of the appointment of the Lord President, Chief Justices of the High Courts and other judges of the Supreme Court and High Courts by the King acting on the advice of the Prime Minister.9 A lacuna appears to exist in respect of consultat­ ion vis-a-vis the removal of these specified judges. Quite obviously, there had been a failure to consult the Conference of Rulers regarding the suspension of and the intention to remove Tun Salleh. In the chapter entitled ‘A Nightmare Within a Nightmare’ (Chapter XI), Tun Salleh disclosed details of a meeting of the Rulers to which he was invited. At that meeting, Sultan Azlan Shah, a former Lord President and the then Deputy King (now the current King of Malaysia), acted as spokesman for the Rulers. Tun Salleh was given to understand that he had incurred the displeasure of the King by sending the letter without observing proper protocol. ‘Malay custom in dealing with members of Royalty of his [the complainent’s] statute demanded that in lodging any prayer of complaint the applicant should do so personally, not through a letter, not through an intermediary’.10 11Tun Salleh explained why he acted the way he did; that he had to go to the United States for urgent medical treatment; that he therefore had placed the matter of the letter in the hands of another Supreme Court judge. Tun Salleh recounted: Their Highnesses were clearly sympathetic. They were only too familiar with Royal protocol. They had spoken to His Majesty who had agreed to receive me and accept my explanation and apology.11 The arranged meeting in the Johor Bahru palace did not unfold as anticipated. It transpired later that Tun Salleh’s counsel, , who had been invited to the meeting too, had, on arriving separately, been turned away at the palace gate. Tun Salleh, on being escorted into the audience room, was unprepared for the shock that awaited him: the King was flanked by the Attorney-General (Tan Sri Abu Talib Othman) and the Chief Secretary to the Government (Tan Sri Sallehuddin Mohammed), ‘two of the Prime Minister’s most powerful men’. Tan Sri Sallehuddin Mohammed had been present at

8 Article 32(4) and Part HI of the Third Schedule, Malaysian Constitution. 9 Article 122B, Malaysian Constitution. 10 At pp. 141-2. 11 At p. 142.

48 ‘May Day For Justice’ the momentous meeting of 27 May 1988 between the Prime Minister and Tun Salleh. After Tun Salleh had explained the purpose of his visit and craved forgiveness, the King made it very explicit to him that he either had to quit or would be removed. After describing the humiliating comments to which he was further subjected, Tun Salleh came to the firm conclusion that the King at the meeting was acting on advice: ‘It was the Executive in action that morning when the King told me to step down, not the Rulers, because the two civil servants had no business in matters involving the Conference’.12 Subsequently, when Tun Salleh went and explained to the Rulers (not all were present at this meeting held in the palace of the Ruler of the State of Perlis) he described their reaction as one of deep disappointment. What action the Rulers subsequently took was not described in the chapter; if action had been taken it was clearly to no avail. The failure of the attempt at reconciliation meant that it was full steam ahead for the initiation of the removal process provided for in Article 125 of the Malaysian Constitution.13 The account by Tun

12 At p. 146. 13 Article 125 of the Malaysian Constitution provides as follows: (1) Subject to the provisions of Clauses (2) to (5), a judge of the Supreme Court shall hold office until he attains the age of sixty-five years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve. (2) A judge of the Supreme Court may at any time resign his office by by writing under his hand addressed to the Yang di-Pertuan Agong but shall not be removed from office except in accordance with the following provisions of this Article. (3) 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 ground of misbehaviour or of inability, from infirmity of body or mind or any other cause, properly to 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. (4) The said tribunal shall consist of not less than five persons who hold or have held office as judge of the Supreme Court or a High Court, or, if it appears to the Yang di-Pertuan Agong expedient to make such appointment, persons who hold or have held equivalent office in any other part of the Commonwealth, and shall be presided over by the member first in the following orders, namely, the Lord President of the Supreme Court, the Chief Justices according to their precedence among themselves, and other members according to the order of their appointment to an office qualifying them for membership (the older coming before the younger of two members with appointments of the same date). (5) Pending any reference and report under Clause (3) the Yang di-Pertuan Agong

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Salleh of the choice and composition of the Tribunal and the procedures adopted by it led inevitably to the conclusion that Tun Salleh was not the only casualty of the deliverations of the Tribunal; the system of justice as practised in any civilised and mature society was given a severe battering. May Day For Justice provides a detailed account of how every move taken by counsel for Tun Salleh was stymied: objections were taken against the composition of the Tribunal and its rules of procedure, but to no avail; requests for an open hearing and for time for an English Queen’s Counsel (Mr Anthony Lester) to prepare for the hearing were in vain. In the end, Tun Salleh decided to seek recourse in the ordinary courts of the land. He filed an application for leave to obtain a writ of prohibition in the Kuala Lumpur High Court to stop the Tribunal from proceeding with its work. This application put the Malaysian judiciary itself on trial. The story as told in the chapter entitled ‘The Race for Justice’ (Chapter XV) contained an account which marked the zenith of judicial courage and independence in Malaysia as well as its lowest point: ‘Two great Justices and gentlemen perished under the weight of the juggernaut and several were badly bloodied and bruised, but there were those who only wrote the chapter of shame in our judicial history.’14 Justice Datuk Ajaib Singh (subsequendy elevated to the Supreme Court) who heard the application in the end turned down an oral application for an interim order. In the meantime the Tribunal was working feverishly to complete its hearing. It was at this point that the ‘highest watermark of judicial independence in Malaysia’ (in the words of Dato’ Param Cumarasamy, a past President of the Malaysian Bar Council) was attained. Invoking powers pursuant to section 9(1) of the Courts of Judicature Act, Tan Sri Wan Suleiman led four other of his judicial brethren (Datuk George Seah, Tan Sri Azmi Kamaruddin, Tan Sri Eusoffe Abdoolcader and Tan Sri Wan Hamzah) in granting the oral application, restraining the Tribunal from submitting its report, recommendation and advice to the King until further order. Impediment to the service of the order was anticipated. Tun Salleh wrote: At this point Justice Wan Suleiman Pawan Teh rose to the occasion and told the lawyers that any attempt to foil them would be an act of contempt of the Supreme Court. He then called the office of the

may on the recommendation of the Prime Minister and, in the case of any other judge after consulting the Lord President, suspend a judge of the Supreme Court from the exercise of his functions. 14 At p. 210.

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Inspector-General of Police and told a senior officer that a Supreme Court Order was about to be served upon persons in Parliament House [where the Tribunal was conducting its hearing] and there must be no impediment to the service on pain of contempt of court.15 Hie five Supreme Court judges paid a heavy price for their courageous stand: four days later, pursuant to a representation by Tan Sri Abdul Hamid to the King, they were all suspended and subsequently put ‘on trial’ before a Second Tribunal. This episode requires another book to highlight the abuse of the constitutional process. Suffice it to say, the net result of the Second Tribunal was the removal of Tan Sri Datuk Wan Suleiman and Datuk George Seah. The other three judges were reinstated. In the case of his own fate, Tun Salleh explained how fundamental notions of justice were betrayed (and by those who ought to know better). From an allegation of breach of protocol, Tun Salleh suddenly found himself confronting a welter of ‘charges’: (1) that in a speech on the occasion of the conferment of the Honorary degree of Doctor of Letters at the University of Malaya he had made statements critical of the Government; (2) that at the launching of a book he had also made statements which sought to discredit the Government; (3) that he had adjourned sine die a case (Teoh Eng Huat v. Kadhi Pasir Mas, and Another) which involved the issue of a minor’s choice of religion; (4) that he had written the letter of 26 March 1988 to the King, a letter which, amongst other things, was intended to influence the Rulers and the King to take some form of action against the Prime Minister; (5) that various statements made after his suspension as Lord President contained untruths and were calculated to politicise the issues and to further discredit the Government The Tribunal found that all these allegations had been established against Tun Salleh. It should be mentioned that Tun Salleh had refrained from appearing before the Tribunal because of misgivings about the composition of the Tribunal, its proposed procedures and the questionable jurisdictional competence of the Tribunal to enquire into his conduct. Regarding its composition, the Tribunal was chaired by Tan Sri Abdul Hamid who was then the Chief Justice (Malaya). The other members were: Tan Sri Lee Hun Hoe (Chief Justice (Borneo); Ranasinghe CJ (Chief Justice of Sri Lanka); Sinnathuray J (a Judge of the Singapore High Court); Tan Sri Abdul Aziz (a retired judge of the

15 At p.229.

51 Bulletin of the Australian Society for Legal Philosophy then Federal Court of Malaysia); and Tan Sri Mohd. Zahir (a retired Judge of the High Court of Malaya). Anybody with some inkling of fairness principles would ask how it was acceptable for Tan Sri Abdul Hamid to be a member of the Tribunal and to chair it The book disclosed that a delegation (led by Datuk Param Cumarasamy) from the Bar Council had urged Tan Sri Abdul Hamid not to accept the proposal that he chair the Tribunal. The delegation spelt out die following two reasons for rejecting the position of Tribunal Chairman: 1. He was an interested party. If the Lord President was in fact dismissed he stood in line to succeed. 2. He had participated in the conferences of the 20 judges on 25 March which resulted in the letter to [the King], which in turn appeared to result in the whole exercise.16 The advice fell on unreceptive ears. Tan Sri Abdul Hamid later justified his acceptance of appointment as the Chairman of the Tribunal by saying that he could not disobey a ‘Royal command’; to do so, he declared, would be an act of disloyalty.17 Such an explanat­ ion must come as a startling revelation to every Malaysian who knows that the 1957 ‘Independence’ Constitution brought into being a constitutional monarchy, not an absolute one. Tan Sri Abdul Hamid appeared to have a frozen ‘mediaeval’ perspective of the 1957 constitutional arrangements. The fact that as Chief Justice of the High Court of Malaya he was generally regarded as ‘next in line’ for the Lord President’s post was clearly a cogent reason for him to step down from the Tribunal itself. Indeed, on 10 November 1988, he was appointed to this post. Tun Salleh dwelled upon the unsuitability of other members of the Tribunal. It must be acknowledged that the appointments of Tan Sri Abdul Aziz and Tan Sri Mohd. Zahir were controversial too. The former had sat on the Federal (now Supreme) Court bench some 17 years earlier, but was now a businessman and practising lawyer. Tun Salleh also disclosed that Tan Sri Abdul Aziz was a litigant (with several others) with two suits against him in connection with the sale of houses pending at the High Court at the time. The latter had upon retirement after 8 years on the High Court Bench been appointed

16 At p. 158. 17 This justification was undermined when Tan Sri Has him who was appointed the chairman of the Second Tribunal withdrew from the Tribunal in the face of arguments based on the appearance of a real likelihood of bias.

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Speaker of the Lower House of the Malaysian Parliament, an appointment which rendered him beholden to the Mahathir government. Apart from this, Tan Sri Zahir made no move to stop the Prime Minister when he attacked the judiciary in Parliament, an attack clearly in violation of Article 127 of the Malaysian Constitution which prohibited discussion of the conduct of a judge of the Supreme Court or a High Court ‘except on a substantive motion of which notice has been given by not less than one quarter of the total number of the members of that House’. Justice would also require that the members of the tribunal should at least be of an equivalent standing to Tun Salleh, i.e. there should be a trial by his peers. On that score, the Bar Council ‘had brought to the notice of the Government that there were available two retired Lord Presidents, at least one retired Chief Justice and a number of retired Supreme Court Judges who could have been appointed’.18 Why these distinguished persons were not invited to form the Tribunal ‘is one of those questions ... which will never be answered by those in power. Indeed, it will be one of those questions which will be the subject of shameful introspection for years to come.’19 The report of the Tribunal contained so many deficiencies that it is not possible in this commentary to discuss all of them. Geoffrey Robertson, a Queen’s Counsel, has aptly described it as one of ‘the most despicable documents in modem history’.20 The painful aspect of the whole saga was the travesty of justice occasioned against Tun Salleh. His “May day” call for justice went largely unheeded, especially by those who had vowed to devote their lives to the cause of justice. May Day For Justice is an important book which should be read by those who are concerned with the Rule of Law in developing societies. It is also valuable reading in countries where the independence of the judiciary is taken for granted. Sir Ninian Stephens once reminded us that ‘an independent judiciary, although a formidable protector of individual liberty, is at die same time a very vulnerable institution, a fragile bastion indeed.’21 He also said: ‘What ultimately protects the independence of the judiciary is a community consensus that that independence is a quality worth protecting...’22

18 Atp. 166. 19 Ibid 20 ‘Justice hangs in the balance*, The Observer, 28 August 1988. 21 Stephen, N., ‘Southey Memorial Lecture 1981: Judicial Independence — A Fragile Bastion* (1982) 13 M.ULR., 334,338 22 taatp. 339

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Tun Salleh’s book is a timely reminder of how the least dangerous branch of government can be translated, in the vortex of a clash between politics and law, into the most endangered branch. The book would help to promote community awareness of the fragility of the judicial institution. In his Foreword to May Day For Justice, Tunku Abdul Rahman Putra Al-Haj, the first Prime Minister of Malaysia, proffered the following devastating observations: Episode after episode in the book shows the spiritual corruption, the cynicism, the moral turpitude, the viciousness and the horrible ruthlessness which attended the exercise of falsely accusing him, hastily putting him before a Tribunal of questionable character and quickly removing him from office.23 The Hon. Justice Michael Kirby, Commissioner of the International Commission of Jurists and President of the Court of Appeal of New South Wales, had this to add: Recounting this story again cannot reverse the injustice done to independent judges of courage and conviction. It cannot unmake the history that has been written. It cannot restore confidence in institutions that have been damaged. But it can serve to remind judges and other lawyers of the need for courage in defending time-honoured concepts. It can help to perpetuate the recollection of the integrity of people appointed to judicial office so that their example serves as an inspiration to successors. It can also help to bring home to the impatient, opinionated governments which attack judicial independ­ ence that there are people in every land concerned to uphold the principle and to scrutinize departures from it against established international standards.24 While Dr Mahathir may revel in his recent victory at the General Elections and those who had assisted him in bringing down the Lord President of Malaysia may bask in the glory of elevations to higher office, history will not be so kind to them. Tun Salleh and the other two dismissed Supreme Court judges will not be relegated to the footnotes of history. Instead they will be elevated, in the words of the Law Association and Advocate’s Association of , to the ‘Pantheon of warriors in the cause of Justice’. History will vindicate them.

23 At p. xii. 24 At p.xviii.

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