DATUK Zaid Ibrahim has proposed that the Government should extend an apology to former Lord President Tun Salleh Abas and his brother judges who were victims of unfair dismissal or suspension in the late 80s.
This courageous and commendable proposal by the Minister in the Prime Ministers Department deserves the unqualified support of all who believe that in the 1988 judicial crisis, three capable, courageous and honest judges became victims of political circumstances.
Sadly, the discussion relating to Zaids proposal is veering towards the lesser issue of who should do the apologising. A prominent oppositionist has demanded that instead of the present Government, former Prime Minister Tun Dr Mahathir Mohamad should be in the forefront of the move.
Tun Mahathir holds no official position now, and if an apology is to carry constitutional weight, it must come from the Government. That would reflect the Prime Ministers commitment to restore the dignity of the judiciary and to heal the wounds of the past.
There is also the fact that along with Tun Mahathir, a large number of other persons and institutions were sullied by this sordid affair. The then Yang di-Pertuan Agong was infuriated by Tun Sallehs letter. He was reported to have instructed the Prime Minister to sack the Lord President.
The then acting Lord President presided over the first tribunal and was instrumental in setting-up the second. The 11 members of the first and second tribunals delivered verdicts that were an affront to justice.
The then Attorney-General and his staff prosecuted the cases. The then Chief Secretary to the Government gave evidence. One High Court and several Supreme Court judges dismissed Tun Sallehs application for injunction against the tribunal.
All of them played unfortunate roles in that constitutional convulsion.
Throughout the Tun Salleh episode, Parliament remained silent. The mainstream media was a willing accomplice.
If fingers have to be pointed, then everyone guilty of acts of commission or omission should be criticised. Otherwise, Zaids proposal that a simple Government apology should be issued makes eminent sense.
The move will create the psychological mood for a comprehensive reform of the law relating to the judiciary and for plugging the following loopholes that came to light during the tragic events of 1988.
> Chairman: Under Article 125(4) the chairmanship of a tribunal to try a judge is prescribed as follows: the Chief Justice; the President; the Chief Judges according to their precedence among themselves; and other members according to the day of their appointment.
This provision created the anomaly in 1988. Tan Sri Hamid (later Tun) was number two in command and therefore entitled by virtue of his office to preside over the tribunal. But under common law and on all principles of justice and decency he was disqualified to participate in the hearing, except as a witness.
He was present at a meeting of Kuala Lumpur judges. That meeting led to the drafting of Tun Sallehs letter of complaint to the King. That fateful letter constituted the basis of one of the charges against Tun Salleh.
Tun Hamid was also disqualified under the rule against bias nemo judex in causa sua because as the acting Lord President he would benefit from Tun Sallehs removal. The contentious public law question is whether due to Article 125(4), the principles of common law were excluded?
> Other Tribunal members: The Constitution in Article 125(4) admirably requires that judges must be investigated by their peers and not by the executive or the legislature. Tun Zahir, the Speaker of the Dewan Rakyat (who was a former High Court judge) was appointed a tribunal member.
Besides his juniority as a judge at the time of his retirement, his association with Parliament should have disqualified him. His selection was a violation of the spirit of the Constitution that judges should be tried by their peers
Under Article 125(4) the tribunal must consist of no fewer than five existing or past, local or Commonwealth judges. It is not clear why the Government appointed six (an even number) of judges to the tribunal headed by Tun Hamid. An even number gives to the Chairman an extra casting vote in case of a tie.
The gilt-edged provisions of Article 125 result in the ironic situation that justices who would benefit from the removal of the accused are allowed to sit in judgment over him. Some re-thinking on the composition of the tribunal is, therefore, called for.
> Seniority: Article 125(4) is silent about the seniority of tribunal members in relation to the judge to be tried. Several judges on the Tun Hamid tribunal were junior in standing to Tun Salleh. A number of very senior retired judges were available but were not picked.
The law in Article 125(4) is in grave contrast to the general rule in Article 135(1) and innumerable other statutes that members of a disciplinary board should not be inferior in rank to the officer to be tried.
> Tribunal procedure: The Constitution is silent on the procedures to be employed by the tribunal. There is no requirement of a public hearing. Presumably, the common law rules of natural justice apply to give to the accused a fair opportunity to answer the grounds on which his removal is sought.
In a matter as grave as the dismissal of the Lord President, it was necessary that the accused Lord President should have been heard. He was invited to attend but refused to because of his objections to the composition of the tribunal.
More time should have been given to sort out this legal issue. It was improper for the Tribunal to proceed in haste in the absence of Tun Sallehs counsel.
> Contempt: It was alleged that Tun Hamid, acting Lord President and Chairman of the Tribunal, tried to interfere with the working of the Supreme Court registry when Tun Salleh sought to apply for an urgent appeal to the Supreme Court against the High Courts refusal of his application for injunction.
It was alleged that Tun Hamid (the defendant in the case) telephoned Justice Seah, who was slated to hear Tun Sallehs application against the tribunal headed by Tun Hamid. Whether Tun Hamids acts constituted an attempt to obstruct justice has not been fully explored.
> Suspension: The suspension of three senior judges (Justices Wan Sulaiman, Seah and Abdoolcader) who agreed to hear Tun Sallehs petition was most unfortunate. The judges were acting in the finest tradition of the judiciary to hear out a complainant facing grave detriment to his reputation and career.
> Harsh penalty: Even though the tribunal came to the conclusion that Tun Salleh had committed some improprieties, the recommendation to dismiss was disproportionately harsh.
Likewise it was cruel for the second tribunal to dismiss Tan Sri Wan and Tan Sri Seah for misconduct. Their misconduct was nothing but a simple and courageous performance of a judicial duty to hear an urgent case.
Perhaps the disproportionate penalties were handed down because in 1988 only one punishment, dismissal, was provided for. Due to amendments in 2006, a tribunal can recommend dismissal under Article 125(3) or some other lesser sanction under Article 125(3B).
Hopefully the new Cabinet appointments and the changed political circumstances will lead to an investigation of the cataclysmic events of 1988 and the necessary constitutional amendments to plug all the flaws in the laws.
Dr Shad Faruqi is Professor of Law at UiTM.
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