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Let royal commission probe judicial crisis; Aug 28, 06 12:46pm

There is definitely merit in the call for an independent inquiry into why, how and who were responsible for the 1988 judicial crisis, said former United Nations special rapporteur on the independence of judges and lawyers Param Cumaraswamy.

In a statement over the weekend, he said any inquiry must be seen to be independent, credible with powers to compel to appear and be examined. Under our present system only a royal commission of inquiry is available provided there is political will to trigger this mechanism, he added.

"Even then could such a commission be able to compel the high dignitaries involved in the affair?" he asked in reference to the then Yang diPertuan Agong, former premier Dr Mahathir Mohamad, then chief judge of Malaya Hamid Omar and former attorney-general Abu Talib Othman.

"Practically all of them would claim immunity for their conduct under the existing protection available for such dignitaries holding public office," Param said.

"Without these four personalities being able to be examined for their conduct and actions in the whole affair we may not be able to establish the truth and culpability," he added.

Recently, Bar Council president Yeo Yang Poh called for a re-examination of the judicial crisis, which saw the sacking of then Lord President Salleh Abas.

Numerous quarters, including Salleh, who broke his protracted silence over the incident, supported the call.

However, the government dismissed it, saying there were no solid reasons for it to re-examine the crisis and that it cannot indulge the 'whims and fancies' of certain individuals.

In 1988, Mahathir had Salleh tried by a special tribunal on charges of misconduct for questioning constitutional amendments that seriously eroded the powers of the judiciary.

Two of five Supreme Court judges - George Seah and Wan Sulaiman - who ruled that the tribunal was convened unconstitutionally were sacked along with Salleh, after being found guilty of misconduct by a tribunal of six judges, including one each from Singapore and Sri Lanka.

'Most shocking event'

Commenting further on the crisis, Param said it was seen both domestically and within the international legal fraternity as the "most shocking event in the constitutional history of Malaysia".

"The dismissals of Salleh Abas, Wan Sulaiman and George Seah on charges that would not be sufficient to even upbraid a low-functionary in the public service left the chilling effect demonstrating not only to the judiciary but to all Malaysians where the balance of power lay in our system government then.

"The report of the tribunal which recommended the dismissal of Salleh Abas was aptly described by an eminent foreign commentator 'as one of the most despicable document in legal history'," he added.

He also quoted former Lord President Suffian Hashim as saying that it would take another generation to restore the independence of our judiciary.

Soon after this 'sordid event', Param said regional organisation LawAsia (Law Association for Asia and Pacific) considered setting up an Asian Commission on Justice and invite five retired eminent senior judges in the region to examine the reports of the two tribunals and advise whether the process and findings of the tribunals were in accordance with internationally accepted standards of justice.

"No doubt the findings of the commission would not be binding on Malaysia. However, it would have had a moral effect," he added.

According to Param, due to difficulties in raising sufficient funds the proposal for such a commission was not pursued.

"However an examination of the records and findings of the two tribunals would not establish those responsible and who should be made accountable for those events. Hence, the Malaysian public will have to leave it to the conscience of those responsible.

"They will be made accountable sooner or later to the Almighty for the desecration of the temple of justice then," he said.
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http://www.sun2surf.com/article.cfm?id=15273

'It's for the truth'
Lawyer gives Nazri reason to reopen 1988 judicial crisis

R. Surenthira Kumar Updated: 03:09PM Mon, 28 Aug 2006

PETALING JAYA: "It's for the truth ... the whole plain truth to come out, that is the main reason the case should be reviewed," said Bar Council vice-chairman Ambiga Srinivasan in response to Minister in the Prime Minister's Department Datuk Seri Mohamad Nazri Abdul Aziz's demand for one good reason to review the 1988 judicial sackings.

She said that it has been 18 years since the "the executive made the assault on the judiciary and the wait should not be prolonged to correct the wrong".

She suggested that a Royal Commission be set up to review the sacking of former Lord President Tun Mohamed Salleh Abas and the two Supreme Court judges Datuk George Seah and the late Tan Sri Wan Suleiman Pawanteh.

"Unless this is done, the public will always have a perception that the executive controls the judiciary and the 1988 judicial sackings by the Tribunal were biased," explained Ambiga.

She said the judiciary is still suffering as a result of the 1988 episode, which was sparked by Salleh's defence of the judiciary against criticisms from then prime minister Tun Dr Mahathir Mohamad, to an executive decision and unless efforts are undertaken to restore judiciary independence, public confidence cannot be regained.

She said by having a review, Salleh would have an opportunity to explain as he was not heard back in 1988 as he had challenged the composition of the seven-man tribunal, who were junior to him.

Salleh, 77, who himself broke an 18-year silence on his dismissal, had supported the call by Bar Council chairman Yeoh Yang Poh for a review of the crisis which led to the dismissal of the three judges. Salleh had also called for provisions of the Constitution pertaining to the judiciary which were amended following the 1988 crisis, to be re-amended so that its powers were not shackled.

On Mohamad Nazri's comment that if the case is reviewed it would open the floodgates, Ambiga said this was not a simple case of an investigation on a judge but an assault on the judiciary.

She said it was a matter of justice being served, which would subsequently strengthen the judiciary.

"What harm can it do? It can in fact clear the public perception that there were other reasons for the sackings," said Ambiga.

She said Nazri should look at it in an objective manner with the aim to clear the air over the issue.

The Bar Council, Ambiga said, can put forward the facts to back its call for the case to be reviewed, if Nazri needs to be convinced to do so.

Meanwhile, Parliamentary Opposition Leader Lim Kit Siang said the loss of confidence in the judiciary following the crisis was the main reason the case should be reviewed.

"It was the root cause for the institution of the judiciary plummeting to its lowest ebb and a review is imminent for it to stand on its feet again," he said.

He said the re-opening of the case should not be seen as a move to look for scapegoats, but one in the interest of the public and the nation.

"We must be prepared to admit mistakes, if they are made, and take steps to rectify them before moving on to a new chapter," said Lim, who is also DAP adviser.