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Imagereal Capture 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 Malaysia (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 Constitution of Malaysia. 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, Kuala Lumpur, 1989. * Associate Professor, Faculty of Law, University of Melbourne. 43 Bulletin of the Australian Society for Legal Philosophy 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 constitutional crisis 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 High Court 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 Johor. 3 Mohd. Noor bin Othman v. Mohd. Yusof Joafar [1988] 2 M.L.J. 129. 44 ‘May Day For Justice’ 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 Tengku Razaleigh Hamzah (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. 45 Bulletin of the Australian Society for Legal Philosophy 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.
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