DAP proposes a Royal Commission headed by former Lord President, Tun Suffian, to restore Independence of Judiciary

Speech by Parliamentary Opposition Leader, DAF Secretary-General and MP for Tanjung, Lim Kit Siang, in the Dewan Rakyat on Thursday, December 14, 1989 on the Courts of Judicature (Amendment ) Bill

DAP proposes a Royal Commission headed by former Lord President, Tun Suffian, to restore Independence of Judiciary

The 1989 Courts of Judicature (Amendment) Bill is the direct resu7lt of the 1989 Judicature crises, where the Lord President, Tun Salleh Abas, was sacked, followed by the suspension of five Supreme Court judges and the subsequent sacking of two them, namely Tam Sri Wan Suleiman and Datuk George Agong Seah.

The Bill amends section 9 of the Courts of Judicature Act 1946, claiming that the present section is vague. The new sub-section provides that the powers and duties of the Lord President, during his incapacity or absence, shall be exercised and performed by the Chief Justice of the High Court in Malaya or, if he is absent or unable to act, by the Chief Justice of the High Court in Borneo or, if both the Chief Justices are absent or unable to act, by the Supreme Court Judge nominated by the Yang di-Pertuan Agong.

In fact, the present Section 9(1) is very clear. It is only the government which refuses to understand and abide by the provision during the Tun Salleh Abas sacking episode, leading to the suspension of five Supreme Court judges and the sacking of two of them.

The clearest statement on Section 9(1) and the events leading to the suspension of the five Supreme Court judges in 1988 could be seen from the statement made by the five judges after they were suspended from performing their function as judges on 6th July 1988. The five judges convened an urgent Supreme Court sitting on Saturday, 2nd July 1988 and granted an application by the lawyers of Tun Salleh Abas for an injunction to restrain the Tribunal constituted to investigate into his alleged misconduct from making any recommendations to the Yang di Pertuan Agong.

In their joint statement, the five judges said:

“We must make it immediately clear that we sat as we did with Tan Sri Wan Suleiman presiding as the Senior Judge of the Supreme Court in view of the fact that Tan Sri Abdul Hamid is the 1st respondent in the proceedings in the High Court and in the application made to us and this equally applies to Tan Sri Lee Hun Hoe, Chief Justice of the High Court of Borneo who is also a member of the Tribunal. Under these circumstances they are disqualified from acting being interested parties. Tan Sri Abdul Hamid bin Haji Omar as the Acting Lord President would normally have the right to convene a session of the Supreme Court under the provisions of section 39(1) of the Courts of Judicature Act, 1946 but in this case as an interested party and one of the respondents he is wholly disqualified from so acting, and in those circumstances the provision of section 9(1) of the Courts of Judicature Act would apply which specifically provide that where the Lord President, which of course includes the Acting Lord President, is unable to exercise his powers or perform the duties of his office including his functions under the Constitution owing to illness or absence from Malaysia or any other cause, and the instant matter comes under the latter provision which we have underscored, these powers shall be had and exercised, and the duties shall be performed by the Judge of the Supreme Court having precedence next after him who is residing in Malaysia and able to act. That Judge was and is Tan Sri Wan Suleiman bin Pawan The and he accordingly immediately on an urgent application made to him sought to convene a full court of seven Supreme Court Judges to hear the application as the Lord President, the Acting Lord President and the Chief Justice of Borneo was disqualified under the provisions of section 9(1) of the Act as being interested parties in the matter.”

From this extract, we can see clearly that there is no vagueness or ambiguity in the present provisions of the Courts of Judicature Act. The problem lies not in the Act, but in the government, which refused to accept and abide by the clear purpose of the Act in its evil motive to destroy the Independence of the Judiciary in Malaysia. This amendment in effect is an admission by the government that what it did last year in the assault on the Judiciary was wrong, and an indirect effort to give propriety to its arbitrary sacking of the Lord President and the two Supreme Court judges.

What Parliament should be doing is to regain and restore public confidence in the Independent of the Judiciary and the Rule of Law after the unprecedented assault on the Malaysian Judiciary last year, and not to give legality and propriety to the sacking of the judges by this amendment before the House.

We must all acknowledge that the Judiciary crisis last year had gravely undermined one of the mist fundamental pillars of our Constitution and the basis on which our nation is founded: the Independence of the Judiciary, the Rule of Law and the Doctrine of the Separation of Powers among the Executive, Legislature and the Judiciary.

Tun Suffian:” for the first time in my life I was ashamed of being Malaysian.”

National and international confidence in the Malaysian system of government had been seriously shaken by the assault on the Judiciary. The former Lord President, Tun Suffian, referring to the Salleh Abas episode, said that “for the first time in my life, I was ashamed of being a Malaysian.”

Tun Suffian said this on Oct. 15 this year at the launching ceremony of the book by Tun Salleh Abas and K. Das May Day for Justice.
What Tun Suffian said deserves the serious thought of all MPs, in fact of all Malaysians.

Tun Suffian said:” For some 40 years I had spent my life in the Law – appearing and arguing before our judges and finally for seven years as Lord President, a post I had never thought of attaining even in my wildest dream when I first entered the public service. Public confidence in an independent judiciary cannot be built up in a day and my predecessors have for generations nurtured and built up a great reputation not only in South East Asia but throughout the Commonwealth.

“Until recently, judicial appointment was regarded as a great honour and I took great care to maintain and enhance the reputation of our judiciary as Guardians of the Constitution, Upholders of the Rule of Law, Protectors of the Poor and Oppressed against Tyranny and Criminals. I valued its reputation for integrity, ability and courage to decide disputes impartially, justly and without fear or favour.”
Tun Suffian went on to say:” What happened to Tun Salleh and our Supreme Court judges has shown that what took generations to build up can de destroyed in one day and will take many years to rebuild…… We watched helplessly as a provision written into the constitution by Tunku Abdul Rahman, Tun Razak, Tun Dr. Ismail, Tun Tan Siew Sin, Tun Sambathan and others to secure the independence of the judiaciary, was being diabolically used to wreck it.”

Tun Suffian spoke of his first reactions when he heard of the Tun Salleh Abas scandal. He said:” I was in Gemeva I first heard on the BBC World Service of Tun Salleh’s suspension and you can imagine how flabbergasted I was. I never thought that what happened in Idi Amin’s Uganda could happen in Malaysia. And when foreign friends in Europe, America and elsewhere questioned me about it, for the first time in my life I was ashamed of being Malaysian.

“And when later I heard of the identities of the Malaysian members of the Tribunal – none were Salleh’s peers or betters and all but one who wore the same old school tie as the Prime Minister – I knew at once that Tun Salleh’s fate was sealed, no matter how just his case or what he said or did in defence. And so it was. With dazzling speed, he was out in three months in contrast to a humble clerk who could not be fired in less than three years,”

Tunku: “I do not know how any honourable government can stay in office…”

Members of Parliament muct also take heed of what Tunku Abdul Rahman, Bapa Kemerdekaan and the country’s founding Prime
Minister, has to say on the assault on the Malaysian judiciary last year.

In his foreword to the book, May Day for Justice, Tunku wrote:

“That the Lord President was wronged was obvious not only to the intellectuals in the country and many countries abroad, but also to the average man in Malaysia. I myself repeatedly objected to the action against the Lord President and the way the Tribunal to remove him was conducted. There were a great many protests by many learned men and women against the action by the Government, but these were ignored by the authorities as well as the frightened press and mass media.

“The world, nevertheless, found out what was going on. Condemnation of the affair from across the world made shameful reading. But I must say that the enormity of the travesty of justice perpetrated in order to remove Tun Salleh (and two other Supreme Court judges) is disclosed in these pages in such detail, with such penetrating insights, that it will surely further chock and scandalize the civilized world.

“Episode after episode in the book shows the spiritual corruption, the cynicism, the moral turpitude, the viciousness and the horrible ruthlessness which attended the exercise of falsely accusing him, hastily putting him before a Tribunal of questionable character and quickly removing him from office.

“I do not know 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.

“In my time I participated in and witnessed a great many dramatic events in the national life. There were great days and there were tragic ones, there were days of high euphoria and days of great sorrow, there were days to be proud of and some days to be ashamed of.
But nothing that happened in all those years from 1955 to 1970 when I headed the Government, or in the days of Tun Abdul Razak who succeeded me and later in the years of Tun Hussein Onn, nothing occurred in all those years that so sullied the fair name of this country so completely as this sordid affair: 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.

“This affair has disillusioned and demoralized many law years. It has severely damaged the people’s faith in the law and brought several judges into disrepute. It will take a long time for us to recover from the horror and shame of this episode.”

It is probably because the sacking of the Lord President and the two Supreme Court judges was such a dishonourable and disgraceful episode that the Prime Minister, Datuk Seri Dr. Mahathir Mohamad, when I asked him yesterday during the debate on the Societies Amendment Bill, said he would not “lower himself” to notice the serious charges in the book, May Day For Justice. As I retorted to him yesterday, the reason must be that the Prime Minister had gone so ‘low’ in that dishonourable and disgraceful episode that he could not go ‘lower’.

What Parliament should concern itself is how to repair the grave damage done to the fundamental principles of our Constitution and our nation, namely the Rule of Law, the Independence of the Judiciary and the Doctrine of the Separation of Powers. We must stop the trend where the Prime Minister wants to be the de facto Supreme Judge of the country, higher than all the judges in the land.

The DAP proposes that a Royal Commission be established, headed by former Lord President, Tun Suffian, Na other eminent Malaysians in the fields of jurisprudence, justice and the law, to propose the steps that must be taken to restore public confidence, both nationally and internationally, in the independence of the judiciary in the country.

The government should stop its feud and vendetta against the Bar and Drop its contempt proceedings against the Bar Council Secretary, Manjeet Singh, for it is not the Bar which is the guilty party in the Salleh Abas episode, but the Prime Minister and the Barisan Nasional government who are the guilty party and in the wrong!

We have reached the stage where there is such a strained relationship between the Bar and the Bench, that we cannot be proud of it. Even the traditional annual get-togethers between the Singapora and Malaysian Bar-Bench had to be cancelled this year, because the Bar refused to be led by the Lord President, who traditionally headed such a get-together, which involved an annual dinner, games and other social functions.

We should not pass this Bill before us, as given the background of the sackings of Tun Salleh Abas and two Supreme Court Judges, Tan Sri Wan Suleiman and Datuk George Seah, Parliament is being asked indirectly to give sanction and approval for the assault on the Judiciary last year. This Bill should be referred to the Select Committee which should consider the whole question of how to restore public confidence in the Independence of the Judiciary and the Rule of Law. I give notice that I will move a motion to refer this Bill to the Select Committee after the Second Reading.