RCI on judiciary must go back all the way to 1988

Kua Kia Soong


COMMENT | The cabinet has agreed to form a royal commission of inquiry to look into allegations of judicial misconduct after a top judge recently sounded the alarm over claims of abuse and interference in the judiciary. 

Whether or not this is the best timing for such an RCI when the details of the relevant cases have yet to be elucidated, one would hope that the terms of reference of this RCI will include the circumstances that led to the infamous assault on the judiciary in 1988.

The judiciary was forever changed by events in 1988 during Dr Mahathir Mohamad's first term as prime minister. 

When the results of the 1987 Umno elections were challenged by Team B under Tengku Razaleigh Hamzah and Mahathir’s reign was threatened, he responded by launching an assault on the judiciary that resulted in the sacking of the lord president and several other Supreme Court judges. 

This was accomplished during a climate of tension created by the infamous Operation Lalang, when more than a hundred innocent Malaysians were detained without trial under the Internal Security Act 1960. 

The country's first prime minister Tunku Abdul Rahman, though in his twilight years at the time, had enough perception and integrity to see how Operation Lalang had been orchestrated:

“Umno was facing a breakup. Mahathir’s hold on the party appeared critical when election rigging was alleged to have given him a very narrow victory over Razaleigh. 

"The case alleging irregularities brought by Umno members was pending in court. If the judgement went against him he would have no choice but to step down. 

"So, he had to find a way out of his predicament. A national crisis had to be created to bring Umno together as a united force to fight a common enemy – and the imaginary enemy in this case was the Chinese community."

'A terrible blow'

In the Foreword to May Day for Justice written by sacked lord president Salleh Abas and K Das, Rahman further wrote:

“I do not know how any honourable government can stay in office after this book has been published. It constitutes a denunciation which cannot be answered without confessing to the most dishonourable conduct in public life…

"It struck a terrible blow, not only to the independence of the Malaysian judiciary – and ruined the careers of at least three honourable men – but to national pride itself.”

In another foreword, former International Commission of Jurists president Michael Kirby had this to say:

“Singled out for particular mention was the concern of the ICJ about the campaign of attacks on the judiciary by the Prime Minister of Malaysia, the inducements made to the lord president to resign his office quietly, the apparently biased constitution of the tribunal set up to inquire into his removal, the inclusion in the tribunal, as its chairperson, of a judge who succeeded to the lord president’s office, the unprecedented action of that judge in securing the removal and suspension of Supreme Court judges who provided a stay to allow the constitutionality of the tribunal to be tested in the Supreme Court, and the 'unpersuasive' report of the tribunal following which the lord president was removed.”

The highly respected former lord president Mohamed Suffian Hashim had this to say on the sordid affair in Das' book Questionable Conduct over That May Day Caper:

“The disgrace brought to Malaysia by Mahathir in dismissing the lord president, Salleh (photo) and two senior Supreme Court judges will long hang around his neck like an albatross. 

"What the prime minister did astounded the nation and the appalling news was swiftly spread to all four corners of the globe… Salleh has since revealed all the facts leading to, and regarding the so-called inquiry into his alleged misbehaviour. 

"Facts which because of the prime minister’s total control of the mass media he was able at the time to keep from public knowledge and which were also kept out of the knowledge of the two foreign members of the tribunal who came from Sri Lanka and Singapore."

'Shocking discrepancy'

The Bar Council at the time also did not mince their words in a statement:

“From the prime minister’s attacks on the judiciary, it appears that he seriously misconceives the doctrine of the separation of powers…It is not for the executive to tell the judges how to construe the laws.”

In 1990, then-opposition leader Lim Kit Siang alleged:

“The prime minister and the attorney-general had refused to throw light on this shocking discrepancy, which raised doubts as to whether the prime minister ever had an audience with the Yang di-Pertuan Agong on May 1, 1988… Grave doubts and mystery surround the judicial crisis of 1988…”

There were many other eminent jurists from around the world who were aghast at this flagrant assault on one of the vital institutions of any democracy: Geoffrey Robertson, Hugo Young, Nihal Jayawickkarama, former chief justice of India PN Bhagwati, Andrew Harding writing for the Commonwealth Judicial Journal, Bernard Levin in The Times; FA Trinidade in The Law Quarterly Review. 

All of them were quite clear in pointing their fingers at the prime minister of the day for the sacking of Salleh.

Salleh's own denunciation Mahathir begins on the first page of May Day for Justice itself:

“When all else is forgotten, this question alone may remain to haunt us: Did I lie when I said the prime minister of Malaysia accused me of being biased in cases involving the political party, Umno? 

"Did I invent this story that the prime minister raised the matter when he gave me the reasons why I was found unsuitable to remain lord president of the Supreme Court of Malaysia and should therefore step down? 

"That because of my speeches about Umno I was biased as a judge? I have no doubt – and few would now disagree – that it was the Umno saga that led to my destruction as a judge.”

With these many references by some of the most eminent jurists in the country and the world regarding the scandalous assault on the Malaysian judiciary in 1988, it would be equally dubious if the terms of reference of the current RCI on the Malaysian judiciary do not cover the affair.

Mahathir and the crypto-Mahathiristas will never succeed in warping Malaysian history as long as there are still good men and women ready to defend the truth, justice, democracy and human rights.

KUA KIA SOONG is the adviser of Suaram.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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