Disebalik Pemecatan Tun Saleh Abas?

Sumber: Matthias Chang.http://bigdogdotcom.wordpress.com/2008/05/21/tun-salleh-guilty-or-not-guilty-for-judicial-misconduct


TUN SALLEH

GUILTY OR NOT GUILTY

FOR JUDICIAL MISCONDUCT?

Found Guilty, But Still Not “Guilty”

It is incredible that after more than twenty years, the issue is still a matter for debate.

In the normal course of things, especially in trial matters, when an accused has exhausted all his legal rights and is found guilty, the matter of his guilt is deemed “settled”. The guilty party has to serve his punishment and then move on.

But in the case of Tun Salleh, the issue of his guilt still lingers on.

Why?

I blame it on the failure of the government at the material time to explain adequately to the people the reasons for the setting up of a Tribunal to investigate into the judicial misconduct of Tun Salleh, the former Lord President of the then Supreme Court of Malaysia.

This has led to the present sorry state of affairs concerning the Malaysian judiciary. How else can we explain that Pak Lah and his spin doctors can still exploit a “dead” issue to divert the attention of the people from his failures as a Prime Minister and the corrupt practices of his family in the process of amassing a fortune worth US$ billions?

Till today, the principal players involved in the events leading to the dismissal of the former Lord President have failed to explain and or rebut adequately the criticisms levied against them. I refer to Tan Sri Abu Talib, the former Attorney General who brought the charges against Tun Salleh upon a complaint from the Agong, Tun Hamid Omar, the former Lord President who succeeded Tun Salleh and presided at the Tribunal, and last but not least, the former Prime Minister, Tun Dr. Mahathir Mohamad. They owe it to themselves to mount a rigorous rebuttal to all the misperceptions and insinuations that have been orchestrated against them over the years.

I can say this because at the material time, I played a critical role in defending the judiciary in general and Tun Salleh in particular in several EGMs and AGMs of the Malaysian Bar. I had in a recent article expressed my regret in defending Tun Salleh.

Maybe this explanation for my stand in withdrawing my support for Tun Salleh will in some measure lift the veil and bring to light the critical issues that led to the dismissal of Tun Salleh.

But the ultimate responsibility to make things absolutely clear rest with the aforesaid principal players, and if they allow the present state of affairs to continue, they cannot then blame Pak Lah and his spin doctors for exploiting the issue to their advantage and opening themselves to be ridiculed further by their critics and political enemies.

Matters of Perceptions & Misperceptions

My motivation for rallying to the defence of the judiciary was simple enough. On hindsight and reviewing the events at the material time, and without the benefit of material facts that have since come to my attention, I am still of the view that my actions were justified.

Why?

I am a lawyer, with over thirty years of experience under my belt and by training, “conservative” in matters relating to the law.

It can be said without fear of contradiction that generally in most democratic countries, judges are held in the highest esteem and often times reflect the crowning achievement of respected practitioners who have mastered the skills of the craft. They must be of good character, well-versed in the law and of impeccable integrity.

So, when judges gathered together in conference with Tun Salleh, the then Lord President, to discuss in strict confidence about the alleged “comments and accusations made by the Honourable Prime Minister against the judiciary”, one can only conclude that matters must be very serious and antagonistic, and the conflict between the executive and the judiciary had come to a head.

Given the status enjoyed by the judiciary in Malaysia and the seniority of judges present at that meeting, it would not be unreasonable to empathise with the predicament faced by the judges, and for lawyers to instinctively rally to their cause.

While on the one hand, we respect the right of anyone, including the executive to criticize a judgment e.g. for not interpreting the law in accordance with the intentions of Parliament (a valid criticism), it cannot be right for any executive in any country to undermine the independence of the judiciary.

So, when the judges made that allegation against the executive, and there were no serious or effective efforts by the executive to explain that while reserving its rights to criticize, there was no intention to undermine the independence of the judiciary, lawyers were led to believe that the conflict was beyond the mere criticisms of erroneous judgments. This conclusion may well be misplaced and or incorrect. But nevertheless, it was the perception of a large number of lawyers.

How else can we explain the rigorous defence of the judiciary by the members of the Malaysian Bar at the material time?

I held that view on the facts available at the material time.

The Truth, the Whole Truth, and Nothing But the Truth

I have since discovered that the events that led to the dismissal of Tun Salleh were not as he explained in his book, “May Day for Justice”.

Tun Salleh’s contention was that his complaint to the Agong aroused the anger of the then Prime Minister that led to this “unconstitutional dismissal”.

How many Malaysians have read this complaint?

In fact, it was an earlier complaint against the Agong himself by Tun Salleh that triggered the demand by the Agong that Tun Salleh be dismissed for writing a scandalous and imprudent letter.

For reasons best known to the former Prime Minister and the former Attorney-General, this first letter was not made a subject matter of a charge of misconduct against Tun Salleh. I trust that in the near future, this matter will be brought to the attention of the public so as to dispel any illusions as to the reasons why the then Agong directed the former Prime Minister to dismiss Tun Salleh.

The second letter by Tun Salleh to the Agong alleging executive interference in the judiciary exacerbated the already precarious relationship between Tun Salleh and the Agong.

If, as alleged by Tun Salleh, it was the former Prime Minister who orchestrated the events that led to his dismissal, the letter of 5th May 1988 from the former Prime Minister to the Agong [which is reproduced in full below] will debunk this preposterous allegation.

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“[Customary salutations]

Your Majesty,

With all respect, I refer to Your Majesty’s Command that appropriate action be taken against Y.A.A. Tun Dato Haji Mohd Salleh bin Abbas on account of his letter to Your Majesty and to Their Royal Highnesses the Malay Rulers which was shown to me when I was in audience with Your Majesty on the 1st May 1988 at the Istana Negara.

I have been advised by the Hon’ble the Attorney-General that I cannot take any action against him except in the circumstances allowed by Article 125 (3) of the Federal Constitution. That Article allows termination of the appointment of a judge only on the ground of his behaviour or for other causes which clearly show that he is unable to discharge his functions properly. I will therefore investigate and examine the position of Y.A.A. Tun Salleh, and if there is evidence of any behaviour or other causes, which, in my opinion, clearly show that he is no longer able to discharge his functions as Lord President properly and in an orderly manner, I shall then make an appropriate representation to Your Majesty. In the meantime Y.A.A. Tun Salleh must be allowed to continue in service.

[Customary Conclusions]

Dr. Mahathir Mohamad

Dated 5th May 1988”

(Emphasis added)

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It is clear from the underlined words (and in spite of Tun Salleh’s protests in his book) that it was an order/command from the Agong that Tun Salleh be dismissed.

It is also equally clear that the former Prime Minister followed to the letter of the Constitution before taking any action as opposed to an immediate response and adherence to the Agong’s command. He was also duly advised by the then Hon’ble Attorney-General.

Additionally, the former Prime Minister did not suspend Tun Salleh upon receiving the command from the Agong, pending investigations.

So, how can it be said in the light of the aforesaid, that the former Prime Minister orchestrated the events that led to Tun Salleh’s dismissal?

More importantly, why did Tun Salleh refuse to apologise to the Agong for his insolent letter after he was informed of His Majesty’s command that he be dismissed?

Tun Salleh’s 2nd Letter to the Agong

The first letter to the Agong was the proximate cause for the Agong’s command that Tun Salleh be dismissed.

It is clear from the contents of Tun Salleh’s second letter to the Agong that the Agong had an additional reason to demand for Tun Salleh’s dismissal. Tun Salleh had in the letter admitted that he could no longer “discharge his functions orderly and properly” [a ground for dismissal under Article 125 (3) of the Federal Constitution].

So, how can Tun Salleh thereafter complain that there were no grounds for his dismissal and or that his dismissal was unconstitutional?

You be the judge.

I now reproduce the said letter for your perusal.

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“[Customary salutations]

Ampun Tuanku beribu-ribu ampun,

I as Lord President on behalf of myself and all the judges of the country beg to express our feelings regarding the development in the relationship between the Executive and the Judiciary.

All of us are disappointed with the various comments and accusations made by the Honourable Prime Minister against the Judiciary, not only outside but within Parliament.

However all of us are patient and do not like to reply to the accusations publicly because such action is not compatible with our position as judges under the Constitution. Furthermore such action will not be in keeping with Malay tradition and custom. It is to be remembered that we are judges appointed and given letters of appointment by Duli Yang Maha Mulia Seri Paduka Baginda Yang di-Pertuan Agong and also Duli Yang Maha Mulia the Malay Rulers to preserve, protect and defend the Constitution. As such it is only proper for us to be patient in the interest of the nation.

Other than that the accusations and comments have brought shame to all of us and left us mentally disturbed to the extent of being unable to discharge our functions orderly and properly. We all feel ashamed because we are not able to avoid from being looked down by those who do not understand our position under the Constitution.

This letter is an effort to convey our feelings to Duli Yang Maha Mulia Tuanku with the hope that all those unfounded accusations will be stopped.

We beg for forgiveness and mercy.

[Customary conclusions]

Tun Dato Haji Mohd Salleh bin Abas

Lord President of Malaysia.”

(Emphasis added)

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This letter coming from the Lord President is a scandalous letter by any measure – an ill-conceived and insolent letter.

The Agong is a constitutional monarch. Yet, in this letter, the Lord President, allegedly writing on behalf of the entire judiciary invites the Agong to take up cudgel with the former Prime Minister. The fact that the Agong referred the letter to the former Prime Minister shows that the Agong has a better grasp of his constitutional role than the Lord President, a man well-versed in law.

And given his confession that he is “mentally disturbed to the extent of being unable to discharge our functions orderly and properly,” what choice has the Agong but to seek his dismissal?

There were other serious charges against Tun Salleh.

But in my opinion, this alone was sufficient to justify his dismissal as his conduct cannot but be deemed “judicial misbehavior” in the circumstances of the case.

If anyone brought the institution to disrepute and destroyed the integrity of the judiciary, it is Tun Salleh and not the former Prime Minister.

Adding insult to injury, and having accepted the fact that “judges appointed and given letters of appointment by Duli Yang Maha Mulia Seri Paduka Baginda Yang di-Pertuan Agong and also Duli Yang Maha Mulia the Malay Rulers”, Tun Salleh showed utter disrespect to the Agong [who convened the Tribunal] by refusing to appear before the said Tribunal to answer the charges.

If, an ordinary citizen is charged with any offences and is required by law to appear before a court of law, how can the highest judicial officer of the country refuse to appear before a Tribunal convened at the behest of the Agong?

And, as no one is above the law, even the Malay Rulers [as under the Constitution, they are required to attend before a Special Court, should they commit any offences], how can Tun Salleh justify his actions in not appearing before the Tribunal to defend himself, even if it is to complain that the Tribunal was not “properly constituted” [which I do not agree]?

Tun Salleh and his legal advisers, comprising very senior lawyers did a disservice to the rule of law by their arrogance.

Conclusions

There cannot be an independent judiciary in Malaysia so long as the myth persists that Tun Salleh was wrongfully dismissed.

Those lawyers and judges who persist in perpetuating this myth are responsible for the current sorry state of the Malaysian judiciary. And to allow Pak Lah and his spin doctors to exploit this myth for their political expediency show all too clearly that their agenda is not to preserve the independence of the judiciary, but rather to advance their own hidden agenda.

MATTHIAS CHANG

19TH MAY 2008

KUALA LUMPUR