De facto law minister Mohd Nazri Abdul Aziz has claimed that there is no case for review of the 1988 judicial crisis on grounds that "there must be a finality to this episode", unless "new and important facts emerge".

Since that "most shocking story in modern legal and judicial history", as Bapa Malaysia Tunku Abdul Rahman wrote in the foreword to 'May Day for Justice' by Salleh Abas & K Das, there have been literally a hundred and one doubts or facts relating to Salleh's dismissal as Lord President.

Some of these doubts concern simple but all-too-important facts such as: Was May Day 1988 a Wednesday or Sunday? To the unsuspecting Nazri, this may seem a moot point.

But if we bear in mind that the source of the controversy was the audience that then prime minister Dr Mahathir Mohamad purportedly had with the King, then the date is crucial and should have been enquired into by the tribunal. It was that audience - if it happened at all - which led to the Royal command for Salleh to be investigated for "misbehaviour".

The government, through its Attorney-General, was quite insistent that May 1, 1988 was a Wednesday, since this is usually the day the prime minister meets the King after the weekly cabinet meeting.

But May 1, 1988 was not only a Sunday; it was also a public holiday, being Labour Day as well as the 15th day of Ramadan. Such a technical anomaly could not have withstood inquisition in a court of law.

Another doubt/fact that Salleh ( photo ) has cast on the government's case was: Whatever happened to the original copy of his letter of March 26, 1988, addressed to the King? It was not submitted before the tribunal when it should have been the most important piece of evidence.

He has posed many more such facts relating to the conduct of some of the judges who subsequently sat at the top of the judicial system; the suitability of members of the tribunal and the procedures at the tribunal sessions. His latest expose ( New Straits Times , Sept 27, 2006) that the Sultan of Johor has regretted what happened ("He said he then realised he had been 'made use of'") is surely another "new fact" worthy to justify review of the 1988 crisis.

Salleh was alleged to have made two offending speeches and these were submitted as allegations to the tribunal. It was alleged that he was seeking to advocate "the acceptance of the principle of Islamic Law as propounded by the muftis" and to assert that such rulings bind not only the Judiciary but also the parliament and executive of the country". (Tun Salleh Tribunal Report, Vol I:38)

Regarding this allegation, the renowned professor of law at Monash University and well-known authority on the Malaysian constitution, Prof FA Trinidade has concluded: "Those who take the trouble to read the whole speech and not just the extracts in the allegations must reasonably come to the conclusion that what Tun Salleh was saying in that speech (in response to statements by the prime minister questioning the role of judges as interpreters of the law) was that 'no legal system can ever escape from the need for interpretation, be it a divine legal system or a secular system', and that he was not advocating the acceptance of the Islamic legal system as applying generally in Malaysia. So the first two allegations against Tun Salleh do not appear to stand up to scrutiny." ('The removal of the Malaysian judges', The Law Quarterly Review, January 1990)

Questionable procedures

Apart from the questionable choice and composition of the tribunal, Trinidade pointed out: "Another lacuna was that there appears to be no procedure provided for a tribunal appointed under Article 125(3) of the Federal Constitution. A very sketchy set of rules was drawn up by the Tribunal itself and sent to Tun Salleh."

The tribunal did not apply the strict rules of evidence as contained in the Evidence Ordinance (Tun Salleh Tribunal Report, Annexure 19, Rule 7). It decided that, "as regards any matter not covered by the Rules formulated by the Tribunal, the procedure shall be decided by the Tribunal in the course of the proceedings". (ibid, p.17)

Salleh's main grievances against the procedure were that the tribunal had professed to hold an inquiry, but had deliberately changed this into a trial; that the standard of proof in relation to judicial misconduct should have been "proof beyond reasonable doubt" instead of "proof on balance of probabilities"; and that the tribunal's proceedings should have been held in public instead of in camera.

The justification against an open inquiry was based on the supposed fact that several of the allegations involved issues of a sensitive nature. But then why were the transcripts of the proceedings and all the documents allowed to be published a few weeks after Salleh's removal?

Even the ordinary person unversed in the law could see that Abdul Hamid Omar had to be disqualified from chairing the tribunal since he stood to gain from Salleh's removal. Besides, he had participated in the decision by the judges to send the letter to the King. It was difficult also to justify the choice of Mohd Zahir Ismail (then Dewan Rakyat Speaker, photo ) and Abdul Aziz Zain (a businessman and practising lawyer) as tribunal members when there were at least 10 other better qualified and senior retired judges, including three former Lord Presidents available.

Trinidade has pointed out that "the whole thrust of the constitutional provisions concerning the dismissal of public servants indicates that their removal can only be made by persons who are their superiors, or at the very minimum, persons of equivalent standing". (The Law Quarterly review, Vol 106, Jan 1990:58)

Practically all the international and regional organisations of jurists and lawyers - including the International Commission of Jurists, Lawasia, Lawyer Committee for Human Rights - had condemned the unjust sacking of Salleh and the other Supreme Court judges.

At the time, Geoffrey Robertson, that illustrious Queen's Counsel, pointed out the need for stringent standards of proof in a case of such immense consequence: "In a matter of such gravity, to acknowledge that the man found guilty of misbehaviour may well be innocent is an approach which exhibits a deplorable disregard for proper legal standards of proof." ('Justice Hangs in the Balance', London Observer , Aug 28, 1988)

Real reason

Such an injustice was allowed to happen principally because the fate of Umno and Mahathir rested on the highest body of the judiciary. There were a hundred and one inconsistencies of fact purely because it was a "panic removal of the head of the judiciary in Malaysia".

As the Tunku put it: "I do not know how any honourable government can stay in office after this book ('May Day for Justice') has been published. It constitutes a denunciation which cannot be answered without confessing to the most dishonourable conduct in public life."

The Salleh Abas Affair demonstrated that noble judges had stood up to defend the independence of the judiciary. Alas, it was to the cost of their distinguished careers, their honour and recognition of their valour.

Can there be finality when justice continues to be denied to these noble judges? If the country can restore the honour of century-old patriots like Ngah Ibrahim, then surely an injustice committed in 1988 to the highest office of the judiciary likewise cries out for recompence?

If my dear friend Das were still with us, he would quite likely quip: "Finality, Nazri? Banality, if you ask me"

DR KUA KIA SOONG is director of Malaysian human rights group Suaram.