Wednesday, 31 October 2007

FLASHBACK: 1988 - The Strangling of the Judiciary by the UMNO Government

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July 1988

Vol. 141, No. 29, 21 Jul 1988, 12

Malaysian Judiciary: Lawyers fear courts will be stacked

Suhaini Aznam

The struggle between Malaysia's executive and the judiciary is being fought in the very courts whose independence is at stake. Government moves have met sharp reactions from lawyers and judges.

Who will emerge the winner is uncertain, but the fight has sharpened the Executive's determination to DOMINATE the country's Judiciary.

The wrangle has also dragged the king into a position where he has effectively had to lend his royal authority to the government's gameplan. This is potentially damaging to the monarchy, and it is reliably learned that some of the king's brother state rulers are unhappy about what they view as political exploitation of his position.

It is known that the rulers have held at least one private meeting to discuss the issue since the suspension of the Lord President Tun Mohamed Salleh Abas.

Alarmed at the rapid tumble of judicial heads -- Salleh was suspended from 26 May and five other Supreme Court judges on 6 July -- lawyers have passed a vote of no-confidence in Chief Justice Tan Sri Abdul Hamid Omar, now the acting lord president. At an emergency meeting of the Malaysian Bar Council on 9 July, 1,002 agitated lawyers called on Hamid to step down or be removed from office.

The unprecedented action against the judiciary began when the king took exception to Salleh's letter in March defending the judiciary against Prime Minister Datuk Seri Mahathir Mohamad's attacks. Mahathir used this and other issues as grounds for action and on 25 May recommended Salleh's suspension. The king then appointed a six-man tribunal to advise him whether Salleh ought to be dismissed.

Salleh had to resort to his own courts in a bid to stop the tribunal from proceeding with its deliberations, on grounds that it had not been properly constituted and its membership was suspect. When the High Court delayed judgment, Salleh turned to the Supreme Court with an urgent request for a stay of proceedings. A five-man Supreme Court bench granted his application on 2 July, but all five were in turn promptly suspended from office by the king on Hamid's recommendation.

The government charged the five primarily with having deliberately convened the Supreme Court without Hamid's permission or knowledge on a matter still under review in the High Court -- actions which it claimed showed a biased attitude unsuited to a judge.

In addition, two of the judges were supposed to have sat in Kelantan that day and absented themselves without reasonable grounds. Hamid advised the king to suspend the five judges after the 2 July order restraining the tribunal, which he chaired, from submitting its report to the king. The tribunal completed its 52-page report on 7 July.

For their part, the five explained that they did not refer the matter to Hamid since as the tribunal chairman he was the first respondent in the application and therefore an interested party. They had also been told that Hamid had ordered that none of the court staff be present in court, the court doors be shut and that they not have the use of court facilities including the court seal. They had felt it imperative to hear the urgent application though it was still before the High Court, since the latter's refusal of a stay would have nullified any order made after the tribunal proceedings had ended.

Aghast at the turn of events, the lawyers took UP cudgels on behalf of the suspended judges. The 9 July emergency meeting, attended by 43% of the entire bar, also resolved to initiate contempt proceedings against Hamid for what it saw as interference in the administration of justice.

In adopting their tough stand, several lawyers realised they themselves risked the government's wrath, and indeed they did not have to wait long. On 11 July, the association's Selangor and Federal Territory chapter was given three weeks by the authorities to move out of its office in the old High Court building.

In legal circles, sympathy is clearly with the suspended judges.

Salleh was given a standing ovation on 7 July when he attended a public lecture at the University of Malaya. The packed auditorium later applauded whenever they saw parallels between the Philippine and Malaysian situations in a lecture by former Philippine chief justice Claudio Teehankee.

The following afternoon, lawyers packed the High Court to hear Justice Datuk Ajaib Singh's decision on Salleh's application to halt temporarily the tribunal proceedings. But they were visibly dismayed when Ajaib described Salleh's contention that it was the king, not the prime minister, who initiated his suspension as "wholly fallacious," and dismissed the application.

Salleh's claim that Mahathir's advice on the selection of tribunal members was not made in good faith because he had criticised the judiciary for several months was also baseless, the judge said. There was a collective groan from the lawyers, some of whom walked out.

Ajaib later said he received several threatening phone calls, as well as two that praised his decision. Salleh subsequently filed an appeal with the Supreme Court, only two of whose judges are available -- the others being suspended or sitting on the tribunal. The government has also applied to have the stay order lifted. To fill out the bench, at least three more judges will be elevated from lower courts to the Supreme Court by the government.

Many lawyers and non-lawyers alike believe that the judiciary is under attack by the executive not for any legal weaknesses in its judgments, but for its alleged lack of judicious appreciation of Malaysian politics. As one lawyer noted, perhaps the judiciary had become an unwitting "instrument on which the opposition has moved" against the government.

Mahathir's criticism of the judiciary began as the political opposition, both within and outside the ruling coalition, resorted to the courts for solutions to what began as political disputes -- the most famous of these being the suit by 11 dissidents from the now deregistered United Malays National Organisation (Umno).

Many lawyers and other observers suspect that Salleh's suspension was a direct result of his appointment of a nine-member Supreme Court bench to hear the appeal by the 11 Umno dissidents, planned for 13 June. If that appeal had been successful, Mahathir's new Umno could have been blocked in its efforts to replace the deregistered old Umno and Mahathir could have found himself forced out of the central Malay political fold.

If the suspensions are indeed politically motivated, it is unclear what avenues are now available to the judiciary to stand up for itself. "What is very glaring is that we have now awakened to the reality that there is no security of tenure for judges, especially a lord president," said Param Cumaraswamy, as former Bar Council president.

Mahathir now controls or cows several institutions: parliament, in which government MPs have an 80% majority; the opposition Democratic Action Party, whose chief and four other MPs are in a detention camp; his own Umno (Baru), from which he has barred all rivals; the media, which is either government-owned or influenced Some political observers feel that after the judiciary, Mahathir might again turn his attention to the monarchy.

Already, with no other avenues for political appeal, the lawyers are looking to the monarchy to intervene on the judiciary's behalf. However, under the system of constitutional monarchy, the powers of Malaysia's king and the eight other hereditary rulers are limited.

But since judges are appointed by the king, with the consultation of his brother rulers, the Bar Council plans to request that the conference of rulers convene to hear its version of events leading to the suspensions.

The Sultan of Johor, Tunku Mahmood Iskandar, is Malaysia's present king in a rotational system of appointment to the federal throne among the nine states. When his term expires in April 1989, the sultan of Perak should succeed, being from the only state not to have had a turn on the throne since independence in 1957. Today, Mahathir gets on well with the king despite initial tensions over Mahathir's attempts to amend the constitution to curb the powers of the monarchy in 1983. By all accounts, however, Mahathir may not find Perak's Sultan Azlan Muhibuddin Shah, the former lord president, as easy to deal with.

Meanwhile, the Sultan of Perlis has telexed the king asking that no action be taken against Salleh until the rulers meet, sometime after 21 July when the sultans of Kedah and Selangor return from abroad. The Sultan of Kelantan has backed this request.

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