The Tunku Tapes: Judiciary under assault - Part 7
special
In May 1988, while those dissidents detained without trial under "Operation Lallang" were still languishing in Kamunting Detention Camp, Prime Minister Mahathir Mohamad suspended two Supreme Court judges and removed the Lord President Tun Salleh Abas, the highest judicial officer of the land.This entire episode is recorded and told by K Das in one of his most well-known books, May Day For Justice. This assault on the Malaysian judiciary pre-empted the case brought to the courts by Umno's Team B led by Mahathir's challenger, Razaleigh Hamzah. The verdict was a foregone conclusion.
K Das: About the Lord President, have you read the story yet?
Tunku: Yes. When was he made Lord President?
K Das: Hamid (Omar)?
Tunku: Hamid. There is nothing in the New Straits Times, is there?
K Das: I think they are trying to make it a secret hearing, Tunku.
Tunku: Secret hearing!
K Das: I think it will be in the open.
Tunku: But he said that if the Lord President Salleh (Abas) wants it open, they would have to agree to it.
K Das: He said that if they want it open, the tribunal would consider it but it does not look like they are going to consider it. They also said that it is up to the King to reveal it.
Tunku: We have never had it before so it is very difficult to say what is going to happen but I don't like the charge of "misbehaviour". I think it should be "misconduct". It really sounds bad.
K Das: What is the Malay word for "misconduct"?
Tunku: What do they say?
K Das: Nothing.
Tunku: Biadap (uncouth) is not a good word to use. The other word is kurang ajar (lacking in breeding), which is even worse.
K Das: What about misconduct?
Tunku: Misconduct ... Not easy to translate. I think biadap or kurang ajar, but the charge for misbehavior is bad. It should be "misconduct" for the Lord President. And then he went to complain to the Agung but where else could he go? So I said in my letter to the Sultan of Kelantan, that it was the only way open to him.
I added that if he (Mahathir) acquires that power, the pillar of justice would fall. The Raja of Perlis was also very worried and he came to see me but one day before his letter arrived, the Sultan of Kelantan also handed me a letter. If he acquires all this power as dictator, there would be no freedom to talk in Parliament or outside Parliament.
What has made me feel rather unhappy is that the Yang di Pertuan Agong took action on his own without consulting the other rulers. That is what he should have done - consult the rulers. What I feel strongly about is that the Raja-Raja (Rulers) should call for the emergency meeting or Conference of Rulers and discuss this matter with the Yang di Pertuan Agong. The people would then have greater confidence in the Raja-Raja. Otherwise they would feel very disappointed that the Raja-Raja do not seem to show any interest.
I want to give copies of this letter to the Rulers who have sympathy with us and I hope they will give their permission to send copies to the other Rulers. Personally I feel that Salleh has no choice but to write to the Rulers and to the Agong and tell them his predicament as head of the judiciary when the law was interfered with by the executive and I agree to what he has done. That was what I said.
K Das: So you are asking his permission to circulate this letter to the Rulers?
Tunku: Yes, copies to the Rulers who are in sympathy with us "Perkembangan pertalian di antara pihak perentah dan judiciary" "With regard to the relationship between the executive and the judiciarythe PM appears to favour the Umno cases that were brought to trial in the courts ... I feel that you might wish to know what took place." This was the letter that the Lord President sent to the Rulers, I sent a copy of the letter which I received.
K Das: That is the covering note.
Tunku: (reading first paragraph of the letter and translating it). He wrote to the secretary of the Sultan. He writes on behalf of himself and on behalf of the other judges of the High Court.
"We feel lost because many things, many comments and innuendoes have been made by the PM" suggesting they are not doing right and so on" We have been very patient even though we did not do anything and we never replied to all his comments and criticisms"...
At least not officially. He embarrassed all the judges with all this criticism. It would not be right or proper for him to make an official comment
"I would like to remind him that we are judges and this criticism was made outside as well as inside parliament. Whatever it was, we are judges, exercising our patience and keeping quiet. Under the constitution, we are supposed to be free and independent before the Agong and the Raja-Raja Melayu. As such, it is our right to defend the constitution. We feel ashamed to be criticised in this way and so we hope that all this attack on the judges and the judiciary will stop. This is all I wish to inform your Majesty"
You see, they were in an awkward situation. They feel that the Rulers and the Agung should defend the constitution and ask him to stop.
Judicial 'misbehaviour'
K Das: In the present situation, do you think Salleh Abas - we know he was frustrated - but was it right on his part to write to the Agong?
Tunku: That is the point you see. They are supposed to be appointed by the Agong and as it happened in this case, he wanted to leave the service so he had to write to the Agong.
K Das: Not the PM?
Tunku: No, you see the Agong gave him the letter asking him to leave. Since he intended to retire, he asked him to leave but the letter came from the Agong not from the PM. Of course, he said the actual work was done by the PM. All the judges were appointed by me. Whether he has the right to write to the Agong or not, that is not the question, it is difficult for me to answer but he was desperate enough.
All this was the work of the PM - interfering with the judiciary was the act of the PM. What is the use of his writing to the PM? He might as well write to the Agong and the Rulers to inform them and at the same time prepare to resign. This is what was in his mind. Then after he had sent the letter of resignation, he felt that this letter might be an admission of his guilt because he did not feel he was guilty, so he withdrew the letter and asked the government to take whatever action they wanted. So they had to appoint this tribunal to decide on this "misbehaviour", as they called it.
K Das: I can't understand how they can accuse him of misbehaviour.
Tunku: I don't think they should use the word for when you disagree with the government. I don't know what they should use - misbehaviour sounds very small.
K Das: It is used for something petty....
Tunku: Or for a very big case of misbehaviour, to discredit the person in public.
K Das: But he did not do anything...
Tunku: No, that is the thing. He wrote to the Rulers but they accused him of siding with our side, interfering with Umno. As far as I am concerned, he never wrote to me or talked to me about this.
K Das: Apparently, he wanted to recommend that the Supreme Court must sit on the appeal with the full quorum of nine judges.
Tunku: That is right, that is what I heard.
K Das: They got very worried about that.
Tunku: But why did they say he was tied to our Umno?
K Das: I think they felt that if there were nine judges, their chances would be reduced. They must have felt that this man was deliberately putting the whole bench because they were standing by his side. But there was no element of suspicion.
Tunku: As far as we are concerned, you said it to us - that he is partial to a judge.
K Das: I was told that Raja Aziz (Addruse) used his right as a counsel when he asked for a full bench?
Tunku: He did, but they didn't give.
K Das: They didn't give?
Tunku: So what?
K Das: Apparently they wanted and for some time there was a talk of seven judges but I think Mahathir objected even to that.
Tunku: He wanted five.
K Das: Or maybe one. You know as small a number as possible. That seemed to be his worry.
Tunku: But as far as we are concerned, we have no evidence that he ever took our side.
K Das: What surprised me today Tunku is that they have now elevated...
Tunku: Harun.
K Das: Why is that?
Tunku: That is what I can't understand. First they put him in Commercial, then they made him Supreme Court judge. I don't think it is very difficult to read his mind.
K Das: Do you think they are afraid he might be involved in some more commercial crimes?
Tunku: I don't know, to push him upstairs, maybe.
K Das: But of course, if he is Supreme Court judge in the case of the 11 Umno people, he will also be very strong.
Going too far
Tunku: No, I've touched on that in the article I am going to show you.
K Das: I saw that. Why did he do that? Why did he change a written judgment?
Tunku: Well, the written judgment is the one that counts. The oral judgment just decides that the person is guilty so the sentence is passed, but when the person appeals to the Appeal Court then you've got to use the records of the written judgment on which to base your judgment. That is what he did. But this man liked the oral judgment, he did not like the written judgment. So he criticised him. It is not right for a PM to criticise judges.
K Das: I think they have gone too far now.
Tunku: Mahathir? Yes, much too far.
K Das: To go against Tun Salleh was a very dangerous thing to do. In fact, the Bar Council is up in arms. They are all very angry. In fact they called for a meeting of the entire Bar in the whole country. One lawyer told me in Penang that he is recommending that they all close down for one week in protest.
Tunku: I think it will be a good thing.
K Das: But I don't know whether they will do it.
Tunku: Because the life of a man is dependent on their help.
K Das: His good name, his whole life is dependent on it.
Tunku: I think that what they should do is have a meeting and send him the protest, send the protest to him. They can work it out.
K Das: I have got a feeling that they want to get rid of him.
Tunku: That is really bad.
K Das: But I can't recall, Tunku, of any other Lord President or Supreme Court judge in the whole world being suspended like that.
Tunku: I have never known myself.
K Das: I think the nearest one was the impeachment of an American judge many years ago.
Tunku: I have not heard of this.
K Das: In the British Commonwealth, I have certainly never heard of it.
Tunku: The time will come. We have to find a way to put this man in his place. We cannot at the moment because he controls the law - what do you do with a man like that? But the time will come...
