by Santha Oorjitham
Has Malaysia closed the book this year on the 1988 judicial crisis? It depends on whom you ask, writes SANTHA OORJITHAM.
MALAYSIAN Bar Council members hinted to Tan Sri Azmi Kamaruddin that Datuk Seri Abdullah Badawi would be making a "very important statement" at their dinner on April 17, which would affect the six judges suspended in 1988.
Even so, he had not expected that the prime minister would announce "goodwill ex gratia payments" for them "as a heartfelt and sincere gesture to mend what has been".
It had been 20 years since Azmi and four other Supreme Court judges were suspended after granting Tun Salleh Abas an interlocutory order against the tribunal hearing charges of misconduct against the suspended Lord President.
Salleh and two of the five other judges -- Tan Sri Wan Sulaiman Pawanteh and Datuk George Seah -- were later sacked. Azmi, Tan Sri Eusoffe Abdoolcader and Tan Sri Wan Hamzah Mohamed Salleh were reinstated.
When Datuk Zaid Ibrahim was appointed to the cabinet as de facto law minister after the March 8 general election, he said he had three priorities as he tackled judicial reform: an apology to Salleh and the five judges, reinstating the right of judicial review which had been removed when Article 121 was amended in 1988 and institutionalising the way judges are appointed and promoted.
The prime minister began the process at the dinner in April. "The government would like to recognise the contributions of these six judges to the nation, their commitment towards upholding justice and to acknowledge the pain and loss they have endured," he said.
Over the course of a fortnight in mid-June, Zaid made the payments to Salleh, Azmi, Wan Hamzah and Seah, and to the families of the late Wan Sulaiman and Eusoffe, without revealing the amount.
And in July, a six-man panel of eminent persons handed their report on the 1988 judicial crisis to the Malaysian Bar, which had commissioned it last year along with the International Bar Association, Transparency International Malaysia and Lawasia (an international organisation of lawyers, judges and legal academics).
The panel, chaired by former Chief Justice of India's Supreme Court J.S. Verma, found after a year's research that the composition, process, findings and conclusions of the tribunal which recommended that Salleh be sacked and the tribunal which recommended that Wan Suleiman and Seah be sacked were "not justified" and that the sackings were unconstitutional.
The panel called for "an acknowledgment by the government of the mistake in removing these three judges in 1988" and "suitable amends"-- and said it appreciated "the reported recent statements and action taken by the government in this regard".
In future, they said, such tribunals should be carefully composed to exclude "any likely danger of bias". Members of the tribunals should be "higher than, or at least equal in rank and hierarchy to the judge under inquiry".
The report was launched in August, posted on the Bar's website and forwarded to the prime minister, Chief Justice, attorney-general and Zaid, said Bar Council president Datuk Ambiga Sreenevasan.
However, the task of legal reform changed hands when Zaid resigned on Sept 15 after criticising the Internal Security Act detentions of blogger Raja Petra Kamaruddin, Seputeh member of parliament Teresa Kok and Sin Chew Daily reporter Tan Hoon Cheng (all subsequently released).
In an open letter to the prime minister on Sept 29, Zaid noted that the constitutional amendment which removed judicial review in 1988 "was prompted by the same series of events that led not only to Operasi Lalang but the sacking of the then Lord President and two supreme court justices".
When he was pushing for reform, he said, his chief concern "was the way in which the jurisdiction and the power of the courts to grant remedy against unconstitutional and arbitrary action of the executive had been removed by Parliament and the extent to which this had permitted an erosion of the civil liberties of Malaysians".
Asked about Zaid's three priorities, his successor, Datuk Seri Mohd Nazri Aziz, stresses that the government has not apologised to the judges: "We only said it was ex gratia and there was no apology."
In November, bowing to pressure from MPs to reveal the amount of ex gratia payments, Nazri named a sum of RM10.5 million and gave a breakdown. Zaid criticised the government for publicising the amount, which he said "left a bad taste" for the judges, diminished the purpose of the payments and broke his promise not to reveal the quantum.
But Azmi has yet to hear from any of the other five judges that they asked for it not to be disclosed. "Parliament is entitled to know the amount. It's public funds," he said.
The government has also not agreed to amend Article 121 to revert to the pre-1988 version, Nazri said. But Zaid's third priority of institutionalising the way judges are appointed and promoted "will be done", he promised, through the Judicial Appointments Commission Bill which he expected to table in this session of Parliament.
The attorney-general is looking into "whether the bill requires any constitutional amendment so as to make it effective", he added. If another bill is needed to amend the Constitution in order to set up the commission, he hopes to get the two-thirds majority required to pass it.
Azmi appreciated the ex gratia payment "which helped the pain and suffering" of the six judges and was happy to hear of plans for the commission, "but Article 121 is at the top of my list. It clearly divided the power into three equal parts -- between the executive, the legislators and the judiciary -- like a stool with three legs. Now we only have two legs."
As for the panel's report in August, Nazri has not received a copy. He notes that they were not appointed by the government and the government is not "bound" by the report.
Commenting on the composition of the tribunal that recommended Salleh be sacked, he said: "I do not think the foreign members of the tribunal were junior. The person at issue was Tun Abdul Hamid Omar (the acting Lord President). Probably it was not the right thing to do, to have someone who had an interest."
When shown the panel's recommendations, he "has no problem with" them. Looking back at the steps taken this year to address what happened in 1988, he said, "I hope there has been closure. We want to move on". But for some, this year has refuelled the debate.
"The speech at the Bar Council dinner and the payments have not brought closure," argues veteran journalist Datuk Rejal Arbee, who was Bernama editor-in-chief in 1988. "They have created more controversy. The intention is not to close the controversy but to demonise (then Prime Minister) Tun Dr Mahathir Mohamad."
"The perception was that Dr Mahathir was interfering in the judiciary and that when a judgment went against the government, the government found ways to strengthen the position of the executive," he recalled.
"But, sometimes, when laws were passed by Parliament, the accusation was that judges did not interpret according to the spirit of the legislation."
Rejal quotes Judicial Misconduct by Peter Alderidge Williams QC which noted that Dr Mahathir had been summoned by the Yang di-Pertuan Agong, who commanded him to take action against Salleh.
Panel member Tan Sri Dr Abdul Aziz Abdul Rahman urged the public to read both Judicial Misconduct and their report and then make their own judgment.
This year, he said: "People now know more about what happened in 1988 and that the government has taken steps to do something. It satisfied members of the public."
As for the judges, he said: "They now know that at least there has been an independent report by people of the legal fraternity and the government has paid attention to them and paid compensation. I think they can more or less live with that."
"No further comment," said Zaid firmly. "The judges told me they wanted to retire peacefully. Me, too."
"We must have a final chapter in this constitutional episode," said Azmi. "It would be unfortunate to stay bogged in 1988."
But another thing remains to be done, he claimed: The then attorney-general, Chief Justice of Malaya and chief secretary to the government should explain their actions in 1988 to a commission of inquiry.
"We were looking to them to do something to advise the Yang di-Pertuan Agong and the prime minister that it was not right.
"At least they could have given written advice or resigned. Maybe they have an explanation."
Understanding the events which led to the 1988 judicial crisis is crucial, said the former Supreme Court judge, "so that it will never happen again".
It had been 20 years since Azmi and four other Supreme Court judges were suspended after granting Tun Salleh Abas an interlocutory order against the tribunal hearing charges of misconduct against the suspended Lord President.
Salleh and two of the five other judges -- Tan Sri Wan Sulaiman Pawanteh and Datuk George Seah -- were later sacked. Azmi, Tan Sri Eusoffe Abdoolcader and Tan Sri Wan Hamzah Mohamed Salleh were reinstated.
When Datuk Zaid Ibrahim was appointed to the cabinet as de facto law minister after the March 8 general election, he said he had three priorities as he tackled judicial reform: an apology to Salleh and the five judges, reinstating the right of judicial review which had been removed when Article 121 was amended in 1988 and institutionalising the way judges are appointed and promoted.
The prime minister began the process at the dinner in April. "The government would like to recognise the contributions of these six judges to the nation, their commitment towards upholding justice and to acknowledge the pain and loss they have endured," he said.
Over the course of a fortnight in mid-June, Zaid made the payments to Salleh, Azmi, Wan Hamzah and Seah, and to the families of the late Wan Sulaiman and Eusoffe, without revealing the amount.
And in July, a six-man panel of eminent persons handed their report on the 1988 judicial crisis to the Malaysian Bar, which had commissioned it last year along with the International Bar Association, Transparency International Malaysia and Lawasia (an international organisation of lawyers, judges and legal academics).
The panel, chaired by former Chief Justice of India's Supreme Court J.S. Verma, found after a year's research that the composition, process, findings and conclusions of the tribunal which recommended that Salleh be sacked and the tribunal which recommended that Wan Suleiman and Seah be sacked were "not justified" and that the sackings were unconstitutional.
The panel called for "an acknowledgment by the government of the mistake in removing these three judges in 1988" and "suitable amends"-- and said it appreciated "the reported recent statements and action taken by the government in this regard".
In future, they said, such tribunals should be carefully composed to exclude "any likely danger of bias". Members of the tribunals should be "higher than, or at least equal in rank and hierarchy to the judge under inquiry".
The report was launched in August, posted on the Bar's website and forwarded to the prime minister, Chief Justice, attorney-general and Zaid, said Bar Council president Datuk Ambiga Sreenevasan.
However, the task of legal reform changed hands when Zaid resigned on Sept 15 after criticising the Internal Security Act detentions of blogger Raja Petra Kamaruddin, Seputeh member of parliament Teresa Kok and Sin Chew Daily reporter Tan Hoon Cheng (all subsequently released).
In an open letter to the prime minister on Sept 29, Zaid noted that the constitutional amendment which removed judicial review in 1988 "was prompted by the same series of events that led not only to Operasi Lalang but the sacking of the then Lord President and two supreme court justices".
When he was pushing for reform, he said, his chief concern "was the way in which the jurisdiction and the power of the courts to grant remedy against unconstitutional and arbitrary action of the executive had been removed by Parliament and the extent to which this had permitted an erosion of the civil liberties of Malaysians".
Asked about Zaid's three priorities, his successor, Datuk Seri Mohd Nazri Aziz, stresses that the government has not apologised to the judges: "We only said it was ex gratia and there was no apology."
In November, bowing to pressure from MPs to reveal the amount of ex gratia payments, Nazri named a sum of RM10.5 million and gave a breakdown. Zaid criticised the government for publicising the amount, which he said "left a bad taste" for the judges, diminished the purpose of the payments and broke his promise not to reveal the quantum.
But Azmi has yet to hear from any of the other five judges that they asked for it not to be disclosed. "Parliament is entitled to know the amount. It's public funds," he said.
The government has also not agreed to amend Article 121 to revert to the pre-1988 version, Nazri said. But Zaid's third priority of institutionalising the way judges are appointed and promoted "will be done", he promised, through the Judicial Appointments Commission Bill which he expected to table in this session of Parliament.
The attorney-general is looking into "whether the bill requires any constitutional amendment so as to make it effective", he added. If another bill is needed to amend the Constitution in order to set up the commission, he hopes to get the two-thirds majority required to pass it.
Azmi appreciated the ex gratia payment "which helped the pain and suffering" of the six judges and was happy to hear of plans for the commission, "but Article 121 is at the top of my list. It clearly divided the power into three equal parts -- between the executive, the legislators and the judiciary -- like a stool with three legs. Now we only have two legs."
As for the panel's report in August, Nazri has not received a copy. He notes that they were not appointed by the government and the government is not "bound" by the report.
Commenting on the composition of the tribunal that recommended Salleh be sacked, he said: "I do not think the foreign members of the tribunal were junior. The person at issue was Tun Abdul Hamid Omar (the acting Lord President). Probably it was not the right thing to do, to have someone who had an interest."
When shown the panel's recommendations, he "has no problem with" them. Looking back at the steps taken this year to address what happened in 1988, he said, "I hope there has been closure. We want to move on". But for some, this year has refuelled the debate.
"The speech at the Bar Council dinner and the payments have not brought closure," argues veteran journalist Datuk Rejal Arbee, who was Bernama editor-in-chief in 1988. "They have created more controversy. The intention is not to close the controversy but to demonise (then Prime Minister) Tun Dr Mahathir Mohamad."
"The perception was that Dr Mahathir was interfering in the judiciary and that when a judgment went against the government, the government found ways to strengthen the position of the executive," he recalled.
"But, sometimes, when laws were passed by Parliament, the accusation was that judges did not interpret according to the spirit of the legislation."
Rejal quotes Judicial Misconduct by Peter Alderidge Williams QC which noted that Dr Mahathir had been summoned by the Yang di-Pertuan Agong, who commanded him to take action against Salleh.
Panel member Tan Sri Dr Abdul Aziz Abdul Rahman urged the public to read both Judicial Misconduct and their report and then make their own judgment.
This year, he said: "People now know more about what happened in 1988 and that the government has taken steps to do something. It satisfied members of the public."
As for the judges, he said: "They now know that at least there has been an independent report by people of the legal fraternity and the government has paid attention to them and paid compensation. I think they can more or less live with that."
"No further comment," said Zaid firmly. "The judges told me they wanted to retire peacefully. Me, too."
"We must have a final chapter in this constitutional episode," said Azmi. "It would be unfortunate to stay bogged in 1988."
But another thing remains to be done, he claimed: The then attorney-general, Chief Justice of Malaya and chief secretary to the government should explain their actions in 1988 to a commission of inquiry.
"We were looking to them to do something to advise the Yang di-Pertuan Agong and the prime minister that it was not right.
"At least they could have given written advice or resigned. Maybe they have an explanation."
Understanding the events which led to the 1988 judicial crisis is crucial, said the former Supreme Court judge, "so that it will never happen again".
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