Independent Committee into Dismissal of Judges in 1988.

INTRODUCTION

“The myth about existence of only things scientists can find and only things theories predict, is just that, a myth. Out of an infinite number, diversity and variety of myths made possible by the mystery of existence, atheists arbitrarily choose to believe in one pessimistic myth about existence of only things scientists can find; and only things theories predict” (Kevin M. McDaniel).

Lawyers likewise have settled upon us this pessimistic myth as a rational default position. And there are those who insist, a belief in such a pessimistic myth is necessary in order to be rational, law abiding, fair, just or simply sane.

However because the truth is just that, a myth is a myth, it is also perfectly reasonable therefore to choose the most optimistic myth about their (lawyer’s) version of the law as a rational default position.

Such a rational default position when pushed hard enough with other well worn urban myths, anecdotal evidence of corruption (and the perceived dominant role by one person, in the sacking, the Malaysian Bar’s bette noir, one Dr. Mahathir Mohammed former prime minister of Malaysia) it leads inevitably to belief in the myth about the law and the Malaysian Bar’s interpretation of it; that lawyers can find things that legal conventions and theories predict; and everything else that enables us to have the highest esteem in their beliefs and their purposes. (my emphasis).

I will refrain from quoting or adapting any further material from Kevin M. Daniel from whom I have sourced the outline of my opening remarks.

Although the impact and the dimensions of his thoughts as expressed are critical to understanding at the introductory level, any analysis of the Report of the Panel of Eminent Persons to examine the 1988 Judicial Crisis in Malaysia (“the Report” and “the Panel”) cannot be overstated, I will rely on the evidence from the vents lading to events that led to the sacking then to the 20 year old Panel’s findings.

It is my belief that a proper and balanced analysis of the Report and the events that give rise to it can be undertaken without embellishment or adornment of the facts.

THE MYTH OF “Terms of Reference”

The Panel of its own material is a self serving forum. The composition and authority by which it came into existence is equally a manifestation of the same self serving interests of the sentient mind behind the Panel at all times, the Malaysian Bar.

In an effort to lend legitimacy, a cosmetic semblance of dimension and depth to the Panel and its purpose, the Malaysian Bar had pulled together a raft of loosely knit interest groups referring to these as ‘various other groups’ in support of its star chamber.

However on closer examination it could hardly be said that these various other groups were in any way representative of the broader community in Malaysia or that they were independent or impartial to legitimise such an inquiry. And finally for good measure in its list of cohorts the Malaysian Bar adds the media, but is careful to be non specific of this fourth estate.

INDEPENDENCE AND LEGITIMACY

By the Malaysian Bar’s involvement in this inquiry, the Panel and its findings are deprived of the character of independence it craves. Not that the removal of the Malaysian Bar’s involvement would in any way have necessarily cured that defect.

One merely has to consider the political complexion and the position the Malaysian Bar and those other named groups driving the inquiry had already assumed against the real target of the Panel’s undisclosed object, Dr. Mahathir Mohammed.

More important, one wonders what the real purpose of the exercise was, considering the Panel lacked judicial, quasi judicial, legal or moral authority or coercive force that could in its wake prescribe or enforce the desired remedies the Malaysian Bar claimed to be pursuing by the Panel.

The Panel is and was incapable of recommending prosecution or referring its findings to a higher tribunal capable of reviewing the events of 1988. It had no capacity or coercive force or influence to affect its desired outcomes, whatever these may have been, obscured by the heat of vengeance, though not quite stated in those terms in its objectives. In short the Report is of little legal, jurisprudential or moral significance.

More damaging to the credibility of those behind the idea to set up this Panel are the statements of the Malaysian Bar through its president. Her statements ridicule the Malaysian Bar’s claims of upholding the virtuous principles of fairness, equity, justice and transparency in its endevour to bring closure to a matter otherwise long dead and buried.

The Panel it seems turned out to be nothing more than a tool designed to exact vengeance from an individual not of their ranks, who it appears made mockery of their professional incompetence and the arrogance of their ignorance.

BALANCE

This challenge for the Malaysian Bar should have been found in the dichotomy of the perceptions of law and justice held by them as legal practitioners and officers of the courts on the one hand and those same concepts as understood by consumers of legal services including the executive on the other.

The problem though for the Malaysian Bar appears to have arisen from its inability to draw the distinction between justice as a process and justice as an outcome.

The absence of a consultative process to include opposing points of view may forever remain a blemish on the credibility of the Malaysian Bar unless of course its members who understand the flaws in the proceedings speak up about it sooner rather than later.

The Panel’s findings appear to have been pre determined judging from the selective nature of evidence put before and accepted by it from one interested party alone.

In the absence of any countervailing evidence or dissenting views submitted by any other of the interested parties the subject of the Panels Inquiry, either in terms of written or oral submissions, the terms of reference, the entire purpose of the Inquiry, beginning with the process of submissions to the selection of the Panel was conceptually flawed from a legal, constitutional and moral standpoint.

A fatal flaw in the integrity of the Panel and its findings lay in its composition. It was an appointment by one side. Being a little unkind I would go so far as to suggest it bore all the hallmarks of a kangaroo court or a star chamber.

THE ISSUES

It is yet to be determined (20 years on form date of the event of 1988 and from publication of the Panel’s Report in 2008) what grevious offence so vital to the integrity of Malaysia’s judiciary or its constitution was committed that was so radically different to similar events that occurred in other commonwealth jurisdictions, for it to be so doggedly pursued by the Malaysian Bar and its allies.

There are three branches of government recognized in the traditions of the Westminster system of constitutional government. The executive, judiciary and the legislature, like the father the son and the holy spirit they are not three gods but three persons in the one godhead. And as it occurs in that other holy trinity, the trinity in government vests much power in one.

Standing between these like a geographic border, the imaginary line between states, is the equally invisible and sometimes illusory doctrine of the separation of powers. As fictional as any other doctrine (or law) sometimes may seem in practice, the fact remains that these doctrines and laws are fundamentally recognized more in the breach than for their observance at anytime anywhere.

So in 1988 a powerful and impatient executive, sick of the ‘cap in hand’ sub culture so inimical to a rapidly developing Malaysia burdened by the sycophancy and obstructive nature of a bunch of interlopers in the civil service and judiciary, took on the perceived omnipotence of the judiciary.

Not laid before the Panel however, was the missing and critical evidence that certain elements of the judiciary then, attempting encroachment into the role of the executive and legislature through other forums, were discovered and challenged.

The legislature by its chief chose to rise up to the challenge, call the bluff of the seemingly irrelevant doctrine and crossed the line. Interestingly no one died as a result. Malaysia went on to attract record foreign investment and rid itself of much of its third world status (except in the minds of those who blindly worship the west and all of its institutions even though they understand little of it or its application and consequences to them).

In examining the relevance, the importance and the impact of this incident which has farcically grown into a modern day Spanish inquisition, one has to take a closer look at the conventions, doctrines and laws that govern the conduct of the three branches of government.

It would then be useful to compare these in the context of the doctrine of the separation of powers, and the individual powers of each of the other branches of government, these being the legislature and the executive to assess its impact arising from any breach of convention of the nature complained of, then examine the Report and reasons for the Report to make better sense of it all.

BACKGROUND IN BRIEF

In this whole saga there are two protagonists. One being a former Prime Minister of Malaysia, unrepresented at the Inquiry and without any input to controvert or to contribute to the terms of reference. The terms of reference broadly speaking in this instance is a roadmap created by the other protagonist, prominent members of the Malaysian Bar.

To add to the farce, neither the Panel nor its Report were either independent or impartial evidenced by a statement attributed to the president of the Malaysian Bar following release of the Report.

The president of the Malaysian Bar Datuk Ambiga Srinivasan unfortunately and perhaps recklessly appears to confirm what has long been suspected as bias in the minds of elements of the Malaysian Bar as protagonist, either on its own or acting as a conduit for the frustrations of the former Lord President Tun Salleh Abbas and disgruntled elements in government, to exact a form of revenge against Dr. Mahathir Mohammed.

That part of Ambiga’s speech that seeks to convey the Malaysian Bar’s settled position prior to the appointment of the Panel and its Report appears to be contained in the following quote from her speech;

” the bar has been steadfast in supporting the judges whom we knew had suffered a gross injustice in 1988”.

The operative words in that statement above being “whom we knew had suffered a gross injustice in 1988”.
By what means and how Dato Ambiga know that the events of 1988 resulted in a “gross injustice to the judges” she clearly fails to establish.

Any evidence to support such a bold prescient statement and the claim behind it should have been placed not before the Panel but a properly constituted tribunal or court within Malaysia for it to have been examined in light of all other “evidence” later presented to the Panel.

It is easy to draw the inference by reference to that particular element of Datuk Ambiga’s speech, that perceived bias can be said to have been present within the minds of the Malaysian Bar (and by implication their stalking horse the Panel) prior to empanelling the so called assembly of Eminent Persons.

And by virtue of that element of perceived bias, now confirmed in her speech which turns out to be actual bias, participation by the Malaysian Bar in the process at any level has clearly tainted the integrity and independence of the Panel.

It appears conclusively that the Panel was clearly stacked, which therefore now begs the question; “should the Panel have continued with the process, in the absence of any input from any other party to its proceedings? perhaps a party that could have validly represented the interests of Dr. Mahathir or the government; or a party that could have validly challenged the inquiry or provided evidence to controvert the assumptions laid before the Panel?

And finally, was this a witch hunt by an interested party such as the Malaysian Bar and if so the, for what reasons was the Malaysian Bar seeking to proceed with the Panel 20 years after the event? Considering the distinct possibility that with the death and ageing of many of the witnesses, the quality of the evidence available could have well been eroded if not rendered unreliable and compromised for those very same reasons of the effluxion of time?

REMOVAL OF JUDICIAL OFFICERS

There is ample evidence and a plethora of material from all over the commonwealth including nations from wherein members of the Panel were selected to show clearly that removal of judicial officers is not as sacrosanct or rare as is made out to be by the Panel and the Malaysian Bar in their findings.

In fact a lack of understanding of the conventional doctrine of the separation of powers appears to be perhaps where the problem actually lies.

Examples of Breaches of Doctrines and Conventions

In 1975 the popularly elected government of Edward Gough Whitlam in Australia was sacked by the then governor general of Australia the late Sir John Kerr on the advice of members of parliament with the concurrence and written opinion of a judge of the High Court Sir Harry Gibbs.

There was much debate that followed at every level of Australian society. Recriminations followed. But the debate remained at a mature and although emotional level relevant where valid arguments given the opportunity to be ventilated, controverted and argued fairly won the day. The winner was in the end a more politically mature Australia.

The incident it was later discovered with the benefit of some research by scholars not to have been unprecedented. A previous government in the 1930’s in the state of New South Wales had also been sacked in similar circumstances by the governor in breach of a convention.

INTERFERENCE IN THE OFFICE AS OPPOSED TO THE EXERCISE OF POWER

Interference in any of the three arms of government by the other is generally perceived as being detrimental to the independent and efficient functioning of government as it has the potential to erode not just the independence of each of the three arms of government producing potentially undesirable outcomes that in theory could lead to a dictatorship.

There is an attempt and a convenient one at that to re cast the events of 1988 into an act that was illegal or unlawful perpetrated by one individual, that being the Prime Minister of Malaysia during that period, an event for which its is implied there were disastrous consequences for the integrity of the judiciary and the doctrine of separation of powers.

What’s not understood or clearly explained is the fact that even if Dr. Mahahtir did sack the judge, his actions in doing so was neither unlawful, unprecedented nor one which the Prime Minister (assuming he did it alone) did not have the legal power at his disposal to carry out.

Even if he did sack the judge and failed to follow procedure as laid out in the constitution there is nothing to suggest that he may not have cured the procedural defect subsequently or retrospectively.

The fact remains that the power did lie with his government to remove members of the judiciary even if that meant doing it without an address to both houses of parliament.

50 WAYS TO LEAVE YOUR LOVER

There are instances where judges have been removed by the executive simply making the tribunals in which judges sit or their positions redundant. In a particular case which High Court judge Michael Kirby in his contribution to Tun Salleh Abbas’ book May Day makes reference. A judicial officer of the Industrial court in Australia was practically removed from office in this way. There was no reference to both houses of parliament no tribunal to inquire into his conduct. Just simply a redundancy of his position was declared and the judicial officer was removed from office.

In doing so the executive and the legislature had simply overcome the burden of having to carry out the task through the conventional means of having to proceed through the cumbersome exercise only after an address to both houses of parliament.

COMPOSITION OF THE TRIBUNAL

More recently of course there was the case of the sacking of the chief justice in Pakistan which resulted in rioting and mass hysteria by the bar in that country and by supporters of opposing political parties.

One notes that Pakistan has had limited experience as a democracy and the events referred to occurred under a military dictatorship in a fractured lawless society which Malaysia is not.

The Panel member from Pakistan therefore may not have been a good choice considering her limited exposure to the conventions, the rules and the workings of a bench and a government in a democratic environment.

The notorious case of the sacking and jailing of former Queensland Chief Magistrate Di Fingleton is another case in point. Australia has had a number of high profile cases involving judicial misconduct wherein those (apart from Fingleton and Vasta) the latter who resigned rather than face the prospect of an ignominious trial by media and government.

The Di Fingleton matter is so radically different from any other and can draw no comparison or analogy to the Salleh Abbas matter. It is perhaps an example of where the judiciary in their arrogance can be so fundamentally wrong and ignorant of the basic principles of law and the doctrine of the separation of powers, that they end up shooting themselves in the foot in the exercise of their powers.

In the Queensland case of Di Fingleton her sacking and subsequent jailing by her peers at the state level, before that shameful and erroneous decision was overturned by the High Court of Australia, was an act of arrogance and ignorance carried out at the expense of the principles of justice against a fine chief magistrate, jurist and reformer.

And from the ranks of Australia’s hallowed legal profession is selected a representative to the Panel to judge not the merits of the events of 1988 but to hang Dr. Mahahtir instead.

THE EVENTS OF 1988 AND THE BERTHELSEN AFFAIR

It is said that the Berthelsen affair was a catalyst in the whole affair which culminated in the sacking of the judges including Salleh Abbas in 1988. Berthelsen, a foreigner on a work visa in Malaysia had his visa revoked and was asked to leave the country.

It is further alleged (a matter unfortunately up held by the appeal courts then) that Berthelsen was denied natural justice in that he was not afforded the opportunity to be heard in appealing the decision of the Director General of Immigration.

It is well established in law that the physical presence of a defendant before a court in any jurisdiction including Malaysia is not a necessary pre requisite in order for that party to be heard or afforded justice. This is particularly so in matters involving immigration law where the applicant/ appellant may be abroad (offshore) at time off the hearing.

Of paramount importance when weighing up the right to be physically present for a hearing and the danger of the presence of the ‘offender’ in the circumstances for whatever reason, is the opinion of the Director General of Immigration as was the case in the Berthelsen affair. There is no reference to this point and whether the appeal courts dealt with such a point in considering the matter.

There was no right to Berthlesen to remain in Malaysia. The grant of a visa to a foreigner (a non citizen) is a privilege granted at the discretion of the host nation, not an absolute right of the non citizen as Berthelsen is and was at the time.

The denial or revocation of his visa was a discretion at the hands of the Director General of Immigration who exercised that discretion. And contrary to what the court of appeal by implication decided in that matter it was not the right of Berthelsen a non citizen in the circumstances to be present in Malaysia (onshore) to be heard in his appeal against the decision of the Director General of Immigration.

It appears the court of appeal not just erred but may have been negligent in arriving at its decision, perhaps fuelling the fire of a conspiracy theory which Dr. Mahathir then may have acted on.

As an example, Australia has excised many of its territorial outlying islands in an effort to deny refugees landing on these islands the right to appeal ‘onshore’ in order to establish their rights to remain in Australian as political refugees.

Regardless of the hue and cry raised by every human rights groups and the legal fraternity worldwide at the time, the High Court of Australia in its wisdom upheld the right of the Minister for Immigration to exercise the powers he possessed to do what he did in this regard.

That matter was decided in the ministers favour inspite of Australia being a signatory to the Human Rights Convention and the Refugee Convention. The fact remains that unpopular decisions can be and often are not illegal or unlawful.

JUDICIAL MISCONDUCT AND JUDICIAL MISBEHAVIOUR

Having considered the Berthlesen matter and the decision of the appeals court, one wonders whether or not it is necessary to labour the point that the other case of United Engineers could well have suffered the same fate of judicial incompetence in the hands of an anti Mahathir coalition of judges. And if that were the case, would it have constituted judicial misconduct or judicial misbehavior?

Sallman in his paper on this subject refers to a number of cases of judicial misconduct, judicial misbehavior on and off the bench which would be worth a read by the Malaysian Bar. The fact of removal of judicial officers and the legality or morality of the issue depends much on a number of factors including the legal and social environment in which they operate. Nothing happens in a vacuum.

Salleh Abbas chose to make an issue out of the events of 1988 and to demonstrate his abject lack of understanding of the process by not resisting the Malaysian Bar’s conduct in empanelling the so called Eminent Persons Panel. It was a self serving Panel appointed to prepare a report he Salleh Abbas so desperately saw necessary to vilify the former prime minster which act has served to reinforce the former chief justices apparent ignorance of how the system operates.

This is just an abridged version of what I chose to communicate on this matter which is a sorry saga in the legal profession, an indictment of the profession on its ignorance of the law and its unrelenting efforts to embed itself in the politics of destabilization of a country whose rank and file workers have achieved so much in such a short time under the leadership of Dr. Mahathir and his government.

Quintin George Rozario
Brisbane
Australia