JUDICIAL CRISIS 1988- A TRAGEDY STAGED BY THE BAR
Independent Committee into Dismissal of Judges in 1988.
“The myth about existence of things only 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 their myth that only lawyers are able to distinguish between the truth and fact on the one hand from fiction and lies on the other as a rational default position. And there are those who insist, a belief in such myths is necessary in order to be rational, law abiding, fair, just or simply sane.
However because the truth is just that, the truth, a myth 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 perceived dominance by one person, in this instance their bette noir 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 paraphrasing Kevin M. McDaniel any further. The impact and the dimensions of his thoughts as expressed are nonethless 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”).
A proper and balanced analysis of the Report and the events that give rise to it may 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 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 their undisclosed object. One 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. It lacked the coercive force that could in its wake could have prescribed or enforced the desired remedies the Malaysian Bar had claimed to be pursuing by the Panel.
The Panel is incapable of recommending prosecution or referring its findings to a higher tribunal with powers of reviewing the events of 1988. The Panel had no capacity, powers, coercive force or influence to affect its desired outcomes, whatever these may have been. The real legal objectives of the Panel were obscured by the heat of vengeance. Though this was not quite stated in these same terms in its reference. 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 delivered through its then president Ambiga Sreenivasan. 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. To them it appears he made mockery of their professional incompetence and the arrogance of their ignorance.
An answer to the legal and public interest challenges confronting the Malaysian Bar in its pursuit of this adventure lies in the dichotomy of the perceptions of law and justice. These concepts as perceived by the Bar as legal practitioners and as officers of the courts on the one hand, and the interpretation or perception of those same concepts as understood by consumers of legal services including the executive on the other appear to be where the problem lies.
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 to these proceedings 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.
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, an 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.
THE OPENING SALVO- A BROADSIDE AT THE WRONG SIDE
In 1988 a powerful and impatient executive, sick of the ‘cap in hand’ culture so inimical to a rapidly developing Malaysia burdened by sycophants and obstructive interlopers in the civil service (and the judiciary), confronted what they perceived as the omnipotence of the judiciary. In doing so the executive appears to have uncovered a nascent conspiracy within a covert political group operating by stealth in the darker corners of the courts and the legal fraternity.
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. He called the bluff of the guardians of that seemingly invincible doctrine and crossed that proverbial proscribed line of the constitutional doctrines. Interestingly no one died as a result. The country did not collapse and the sky did not fall in as predicted.
Malaysia instead 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 seminal legal event which has farcically grown into a modern day Spanish inquisition, one needs to take a closer look at the conventions, doctrines and laws that govern the conduct of the three branches of government.
To make proper sense of the Report it would be useful to understand the various constitutional conventions, doctrines and laws in the context of the doctrine of the separation of powers first. A next logical step would be an understanding of the individual powers and roles of each of the three branches of government, their intertwined relationships and the difficulties that go with maintaining government in these circumstances.
Precedent, comparable situations within the commonwealth of nations and lessons on how more mature systems have confronted and disposed of similar difficult situations are all necessary tools in understanding something as complex as the constitution Malaysia inherited from a common source as others wthin the commmonwealth.
BACKGROUND IN BRIEF
In this whole saga there are two protagonists. One being a former Prime Minister of Malaysia, unrepresented before the Panel 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.
BIAS PERCEIVED AND ACTUAL
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.
It appears from the evidence that the Malaysia Bar, either on its own, or acting as a conduit of the former Lord President Tun Salleh Abbas and other disgruntled elements within government wanting to ventilate their anger on Dr. Mahathir created the Panel of Inquiry to exact a form of revenge against him.
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 did Dato Ambiga conclude she”knew” the events of 1988 resulted in a “gross injustice (to the judges) in 1988” 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 empaneling 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 of the Inquiry has clearly tainted the integrity and independence of the Panel.
It appears conclusive that the Panel was clearly stacked. This 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 inclusion of a party that could have reasonably and validly represented the interests of Dr. Mahathir or the government at the Inquiry; or even 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, the Malaysian Bar and if so, 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 was it safe to proceed with the Inquiry?
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. Mahathir 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 many instances where judges have been removed by the executive simply making the tribunals in which judges sit or the individual positions of a sitting judge redundant. A particular case in point which occurred in Australia in the 1990’s, Australian (now retired) High Court Justice Michael Kirby in his foreword 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 thus 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 which has existed since independence as a defato theocracy or military dictatorship for most of its existence, has had limited experience as a democracy. The events referred to recently there 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 practical application of conventions, the rules and the workings of an independent 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 incidences of reported judicial misconduct (apart from Di Fingleton and Vasta both of the state of Queensland there is the celebrated case of Federal Court Judge and Human rights activist Justice Marcus Einfeld and others like the late NSW Supreme Court Justice Shaw).
The majority of these cases of judicial misconduct were settled when the judges concerned typically resigned rather than have to face the prospect of an ignominious trial by media and government exposing their misconduct with the exceptions of those named above.
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 most basic principles of law and the doctrine of the separation of powers, that they end up shooting themselves in the foot in the brutal unfettered exercise or of their near absolute 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 Tun 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 court of appeal 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 settled principle in law that the physical presence of a defendant before a court in any jurisdiction including Malaysia is not a necessary pre requisite for that party to be heard or afforded justice. This is particularly so in matters concerning immigration law where the applicant/ appellant may be abroad (offshore) at time of the hearing.
Of paramount importance when weighing up the right of a defendant to be physically present at a hearing against the dangers of their presence onshore in the circumstances for whatever reason, is the opinion of the Director General of Immigration. This was the case in the Berthelsen affair which gave rise to the controversial finding of the court of appeal in Malaysia. There is no reference to this point or whether the court of appeal even dealt with such a point in considering the matter in arriving at its judgement.
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 as was his right 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.
To illustrate the point, Australia has excised many of its outlying territorial islands in an effort to deny refugees landing on these islands the right to appeal ‘onshore’ and from these islands tothen establish their rights to remain in Australian as political refugees.
Regardless of the hue and cry raised by every human rights group and the legal fraternity worldwide at the time, the High Court of Australia in its wisdom upheld the decision and the right of the Minister for Immigration to exercise the powers he possessed to do what he did in this regard. The islands have remained excise for refugee immigration purposes.
That matter was decided in the ministers favour inspite of Australia being a signatory to the International Convention on Human Rights and the Refugee Convention. The fact remains that unpopular decisions can be and often are not illegal or unlawful.
It appears the court of appeal not just erred in its decision but may have also misdirected itself and in doing so may also have been negligent in arriving at its decision thus fuelling the fire of a conspiracy theory which Dr. Mahathir then may have acted upon. Therein perhaps lay the mischief in a poor judicial decision.
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.
Tun 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 Tun 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. The matter appears to have been purely personal.
This sorry saga in the history of the legal profession in Malaysia as represented by the Malaysian Bar or elements within it is an indictment on the profession. An indictment on its poor understanding of the law reflected in 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 however controversial and unpopular he may have appeared to some.
Gopal Raj Kumar