TUN SALLEH ABAS Bares ALL- New and Important Facts for a REVIEW of the 1988 JUDICIAL CRISIS & Dr MAHATHIR Immediate RESPONSE
Cabinet says case closed;
No review of the sacking of three judges in 1988
There will be no review of the sacking of three judges in 1988, the Cabinet decided yesterday. They felt that there must be finality on this issue and said that the the sacking of Tun Salleh Abas, Datuk George Seah and Datuk Wan Sulaiman Pawanteh will only be revisited when there is “new and important’’ about the case emerge.
And what qualifies as “new and important’’ facts? Datuk Seri Nazri said that he will call for a review if one of the judges who had sat on the tribunal came forward and said that they were instructed to find Salleh guilty.
“If any one of the five judges says he was instructed to act in a certain way, I will advice the Cabinet to allow the review as it would have been a miscarriage of justice.”
Barring that happening, the case of the three judges and the Judicial crisis of 1988 is closed.
“The Cabinet has endorsed the position taken by me at yesterday’s meeting,” said the Minister in the Prime Minister’s Department.
Nazri said that he told the Cabinet that Salleh’s disclosure of five incidents did not merit a review as they had occured before the tribunal was formed.
He said that the matter was not on the Cabinet agenda but was discussed following newpaper reports highlighting the former Lord President’s call for a review of his sacking and that of his fellow judges.
In a statement, Salleh had highlighted five incidents which he said showed that the decision for him to step aside had been made even before the tribunal was set up. He said that on
Salleh said that he refused to resign and was threatened with dismissal.
Dr Mahathir on Tuesday said that he had asked Salleh to step down to prevent any scandal.
The five were suspended but Salleh, Wan Sulaiman and Seah were later sacked.
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A chance to establish truth and justice
THE question of a review of the 1988 judicial crisis centres around the fundamental principle of the separation of powers among the executive, legislative and judicial branches of our democratic system. It must be acknowledged firstly that so far in Malaysia, the executive arm has overshadowed the judiciary and legislature, and as a result, the safeguards that are enshrined in our constitution against the excessive use of its powers have not worked to the extent that is desirable in a functioning democracy.
Due to the weakened check and balance mechanism, it is likely that aberrations of justice may have taken place in the administration on public affairs. The judicial crisis of 1988 is certainly among the most far-reaching of challenges that has occurred to the democratic system that is at the core of our national life.
It is therefore an episode without parallel in the annals of our constitutional experience. Today, 18 years after the event, we have an opportunity to reexamine that chapter with a view towards reaffirming the core principles of natural justice and administrative integrity in the conduct of the nation's affairs.
If we do not have the stomach on this occasion to set the ship of state on the right course, we will have missed a rare chance to chart a future that is guided by the shining star of truth, fair play and integrity, and so build a democratic system that can stand the
scrutiny of the generations to come.
Who knows whether there will be another such chance?
B. Suresh Ram Updated:
PETALING JAYA: Whether the 1988 judicial crisis should be reviewed boils down to whether the people and the government want the truth to come out, the Bar Council said today (
Salleh's airing of five reasons for a review was in response to a recent statement by Minister in the Prime Minister's Department Datuk Seri Mohd Nazri Abdul Aziz that a review can only be justified if "new and important facts" have arisen.
Nazri, in an immediate response to Salleh's "new facts", reportedly said the new information did not merit a review. He reiterated that there must be a finality to such cases.
Said Yeo: "Are we interested, that is the question?"
He said with the new revelation by Salleh, the finality argument by Nazri did not hold water. Yeo said there is thus a need for the government to seriously reconsider its position on the matter.
"The question is this: Does our society want the truth to come out? If so, then this exercise is all the more meaningful," he said. Johor Baru MP Datuk Shahrir Abdul Samad, who is also parliamentary Public Accounts Committee chairman, said he would support the review of the 1988 crisis, which led to Salleh's sacking and that of two other colleagues, on the basis of new evidence.
"This issue is very close to me," he said. Shahrir said the issue was one of the reasons why he stood as an independent candidate in a by-election he won in August 1988.
"It is very personal (the sacking) and it was for this reason I had refrained from commenting on it," he said. He said that for the matter to be re-opened, the basis or the idea as to why t should be reopened must be there. Shahrir said the best and the utmost one can do is learn from the crisis and not repeat it.
The 1988 crisis represents the darkest period in the country's judicial history and was criticised as the executive interfering in the judiciary.
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The following is the FULL 5 -page statement issued dated 26th Sep 2006
I must thank (defacto law minister) Nazri Aziz for agreeing to the review of the 1988 judicial crisis if "new and important" facts emerge.
In response to his comments, it seems to me that he has not agreed to the review because the decision of the two tribunals - the first tribunal which decided on me and the second tribunal which decided on my five other colleagues - were accepted by the Yang di-Pertuan Agong and the government in 1988. Thus, he would agree to the review only "if there are new and important facts in the case".
In refusing to agree to a review of the 1988 judicial crisis, the honourable minister seems to also place great reliance on the fact that acceptance of the recommendations by both tribunals were also accepted by the Yang di-Pertuan Agong.
According to Article 40(1) of the Federal Constitution, the Yang di-Pertuan Agong as a constitutional monarch must act "in accordance with the advice of the cabinet or a minister acting under the general authority of the cabinet, except as provided by this constitution".
Thus, the Yang di-Pertuan Agong is not even allowed to refuse advice tendered by the cabinet or the prime minister. This is further provided in Article 66(4)(a) where the Yang di-Pertuan Agong cannot refuse to assent to a bill passed by Parliament. He is given three months within which to assent to the bill. If he fails to do so, the government is free to gazette the bill into law.
The history of this country has shown that the Yang di-Pertuan Agong has never acted against the wishes of the prime minister or the cabinet including on the issue of depriving the rulers of their own immunity. There is therefore no way for the Yang di-Pertuan Agong to refuse consent to accept to the recommendations of the two tribunals when they were submitted to His Majesty.
In my view, no emphasis need therefore be placed on the acceptance of the recommendations of the two tribunals by the Yang di-Pertuan Agong, since in the light of constitutional provisions and practice, His Majesty's powers have become, with respects, almost procedural and reflect the wishes of His Majesty's government, even if the prime minister of the day is dictatorial. That the then government of the day was dictatorial was admitted by the minister himself in one of his recent press statements.
As regards "new and important facts", which are the conditions stated by the minister on which the review could be held, these facts should actually be given to the tribunal or commission (or whatever authority) charged with investigation into the matter, should the government decide to order the review. However, since the minister prefaced his agreement to review the 1988 judicial crisis only if so-called "new and important facts" emerge, I shall now touch on five incidents only in general terms without labouring into details.
The first incident relates to my meeting with the then prime minister (Dr Mahathir Mohamad) in his office on May 27, 1988 in the presence of the then deputy prime minister (Ghafar Baba) and the then chief secretary to the government (Sallehuddin Mohamed).
I was asked by the then prime minister to step down because I was accused of being biased in the discharge of my judicial duties. My understanding of this accusation was that it must have been connected with the impending Umno 11 case, when I decided to establish a nine-member panel of the Supreme Court to hear the appeal. I strongly denied the accusation and told him that I was not prepared to resign.
Then he threatened to dismiss me by instituting a tribunal under the constitution. I told him I was prepared to be dismissed rather than leave the judicial office under a cloud. This was a very short meeting and after I had left the prime minister's office and returned to my chambers, I immediately wrote by way of an aide memoir a note of what had transpired during that meeting. That note coincidently appears in the latest issue of the Aliran.(see below)
The second incident relates to the visit to me on the same day of a messenger who was a very important officer of the government. He came with the idea of persuading me to resign or go on long leave and at the same time threatening me with dismissal should I choose not to.
Were I to resign, I would be appointed to a lucrative job in Jeddah as a director of Islamic Bank with a high salary I could never have dreamed of, coupled with an unlimited amount of entertainment allowances and travelling expenses.
The officer said he had been authorised to pass this message to me by a very important minister. When I told him that I could not accept the offer, I was then threatened with dismissal and the ignominy of having to face a tribunal. My answer to the messenger was the same as I had given to the prime minister earlier on in the day.
The third incident took place on
I was informed that the Yang di Pertuan Agong (HRH the Sultan of Johor), had just left the meeting. Taking the lead upon my appearance was HRH the then Raja of Perlis and also present were the other Malay rulers or their representatives. (The Sultans of Kedah and Selangor were away abroad and the Sultan of Pahang was unable to attend on account of the serious illness of his then consort who in fact passed away the following day.)
I was informed by HRH the late Raja of Perlis that agreement was reached between the Yang di-Pertuan Agong and the rulers then present that should I tender my apologies to and ask forgiveness from the Yang di-Pertuan Agong for writing my impugned letter to His Majesty at His Majesty's Istana Bukit Serene in Johor Baru, my suspension would be lifted and the matter would end there.
I was to travel to Istana Bukit Serene with my chief counsel, Yang Mulia Raja Aziz Addruse (left). Since we could not get seats on the plane, I decided to travel to Johor Baru by car whilst Yang Mulia Raja Aziz chartered a private aircraft for that purpose. Upon my arrival in Johor Baru, I was admitted into the Istana but Yang Mulia Raja Aziz, despite all the trouble he took to charter the plane, could get only as far as the gates of the Istana as he was prevented from entering the palace.
At the Istana, contrary to my expectation, my mission was a failure because the Yang di-Pertuan Agong had earlier been briefed by two very senior government officers from
The fourth incident relates to the suspension of my colleagues with the eventual dismissal of two of them. The suspension was engineered for the purpose of thwarting them from hearing my judicial review application challenging the legality and constitutionality of my suspension and the composition of the tribunal to deal with my dismissal.
A particular High Court judge who was reluctant to hear my application feigned illness on the day fixed for hearing. His replacement did his utmost to delay hearing my application and when he finally did so, my application was dismissed. I appealed to the Supreme Court and succeeded.
An order of the court must always be sealed before it is served on the respondent. The chief registrar of the Supreme Court was the keeper of its seal but when I succeeded in my appeal, the seal could not be found as it was purposely hidden. However, after a search by the late Wan Suleiman Pawanteh, the seal was discovered.
The sealed copy of the order had then to be served on the respondent tribunal which was located at Parliament House. But when my counsel Raja Aziz Addruse attempted to effect service of the order on the respondent, he found that the authorities had ordered the Parliament gates closed. However at the request by the late Wan Suleiman for assistance from the office of the IGP (police chief), the gates were opened and the order was served.
Despite receipt of the order, the tribunal proceeded with its deliberation. The end result of this incident was that upon my refusal to recognise the composition of the tribunal especially with regards to the appointment of its chairman on grounds of a serious breach of natural justice, I was, in my absence, adjudged guilty and subsequently dismissed.
The five Supreme Court judges which allowed my application were themselves suspended. Another tribunal was established to try them and two of these valiant judges, namely the late Wan Suleiman and George Seah, were dismissed. The other three, namely the Eusoffee Abdoolcader, Azmi Kamaruddin and Wan Hamzah Mohamad Salleh were reinstated.
If the Supreme Court order were obeyed, my reinstatement would have automatically followed and this would have been unacceptable not only to the government of the day but also to those who would benefit from my dismissal. Thus my five colleagues were innocently suspended with all the consequences that have adversely affected them and their families until this day.
The fifth incident relates to the government's action to deprive the rulers of their immunities. The late Tun Suffian Hashim and I acted as advisors to the rulers. By then, HRH the Sultan of Johor was no longer the Yang di-Pertuan Agong and His Royal Highness was very concerned about the government's intention.
This was my first audience with His Royal Highness after my dismissal, HRH said to me in no uncertain terms that he very much regretted what had happened to me as he said he then realised that he had been "made use of". I told HRH that there was no need to feel sorry for me personally but he should express his regrets and apology to the people of this country for losing a judiciary that was independent and could look after their rights.
I was later summoned again by HRH to Istana Bukit Serene for advice after HRH learned that a bill had already been introduced in Parliament to disband the Johor Military Force (JMF). My advice to HRH was that the JMF, which was established long before the Malay Regiment, was and is part of the privileges of the Sultan of Johor and, without the consent of His Royal Highness, such privileges could not legally be withdrawn.
My opinion was confirmed by Neil Lawson, Queen’s Counsel, the legal adviser to the Malay rulers during the negotiation for Merdeka. There was no doubt that HRH was very pleased with my effort over HRH's then predicament and, in appreciation thereof, offered to make a public apology in Johor Baru over HRH's role in my dismissal.
Identity of unnamed persons
The above are some of the new facts which I hope could persuade Nazri to change his mind. These incidents undeniably go to show that come what may, I must be made to give up my judicial office. There would of course be other incidents and other details which would emerge if the review is held but for the time being, I shall keep the identity of those unnamed persons in this statement concealed.
As regards responses from the other two judges who were also dismissed, Wan Suleiman is no longer with us. His widow has, nevertheless, supported the call for a review. But the speech made by the late Tun Suffian during a special reference organised by the Malaysian Bar in Wan Suleiman's memory and honour should give an indication on the role played by my late colleague during the crisis which, in the learned Tun Suffian's opinion, certainly did not deserve his dismissal.
George Seah is currently unwell to make any contribution to Nazri's call for "new facts" but the series of articles on the crisis written by him not so long ago continue to appear in the websites of both the Malaysian Bar and Aliran. Knowing the character of the late Eusoffee Abdoolcader, I am sure that he too would support a review. Azmi Kamaruddin has already come out publicly for a review. I believe Wan Hamzah is also of this view.
For these reasons, I hope that Nazri will present the proposal to the cabinet for a review of the 1988 judicial crisis so that the truth of this important episode in our nation's history is uncovered.
Tun Salleh Abas;
From Ailiran; exclusive private notes made by the meticulous Tun Salleh:
When I arrived at the Prime Minister’s Department I was met by a policeman who took me by lift to a waiting room. After waiting for about two or three minutes, I was shown into the Prime Minister’s Office by an officer, whom I did not recognise. There I found YAB Perdana Menteri (then prime minister Mahathir Mohamad) seated at his table with YAB Encik Ghafar Baba, Timbalan Perdana Menteri (then deputy prime minister) and Tan Sri Sallehuddin Mohamed, Ketua Setiausaha Negara (the then chief secretary to the government) seated at the same table opposite the Prime Minister. When I entered the room I gave the Prime Minister and the others my salam very loudly and he replied my salam. (Peace be on You).
After I had taken my seat, the Prime Minister told me that he had an unpleasant duty to perform and on being asked what it was, he replied that he had been asked by (the then) DYMM Seri Paduka Baginda Yang Di Pertuan Agong to tell me that I should step down. I then expressed my surprise in an Islamic way saying “Glory to God, who is free from any partnership.” Then I asked him for the reasons and in reply he said that he was not prepared to argue with me, but finally he said the reason was that I had written a letter to DYMM Seri Paduka Baginda Yang Di Pertuan Agong regarding the state of relationship between the Judiciary and the Executive.
I told him that I wrote the letter simply because Judges, at a meeting on
When finally I said I would not resign, he told me that if I stepped down I would be given everything that I was entitled to. I told him that I was entitled to nothing since I was not yet 60. Obviously, he was surprised when told I was not 60 yet. Finally, he said that if I did not step down he would institute a Judicial Tribunal with a view to removing me. I told him I would not resign because if I did, I could not show my face to anyone and I might as well die.
He said that I could see the Agong if I wanted to and he would not stop me from doing so.
I told him that I would not be resigning and he could do what he pleased with me, including going ahead with the Tribunal. As there was nothing else to discuss, I finally said “Datuk, I should not waste anybody’s time”, and I shook his hand, also Encil Ghafar Baba’s and Tan Sri Sallehuddin’s. None of these three looked me right in my face and I could detect Encik Ghafar Baba was strangely silent and Tan Sri Sallehuddin only caught me by the side of his eyes but he too appeared to be subdued.
The Prime Minister himself, from the beginning to the end, did not even look me in the eye. He was looking down at his table all the time.
I left his room and I only saw one policeman outside his room who appeared surprised to see me there. When I went downstairs there was nobody even to see me off and no one called for my driver. I had to go out to look for my driver.
My future is tied up with the fate of this country. I come from an unknown family and I have reached the top of my profession. I have no desire to leave until I have reached the age of 65 like my predecessors, except the Sultan of Perak, who vacated the job because of a call of duty to be the Ruler of Perak. I leave my fate to the judgment of Allah and as it is Friday, I wish to quote the Quran, which says, “No misfortune will fall on us except what has been decreed by Allah. He is our protector and in whom the believers should place their trust.” This passage from the Quran struck my heart as I entered the door of the Prime Minister’s Office and it remained with me during the course of our discussion till the end, and to my exit from his room.
And Dr Mahathir’s lapse of memory response
He said Salleh had first agreed to step down but a few days later refused to do so, which prompted the Government to take the necessary action to remove him. “He agreed first, then later on, I don’t know how many days later, he decided that he should not step down.
“Then of course the Government was forced to take action,” he said, adding that Salleh did not give reasons as to why he had decided against stepping down. Dr Mahathir was responding to a statement by Salleh yesterday, where he claimed he was asked to resign by the former premier.
Salleh also claimed he was offered a high paying job as a director of an Islamic bank in Jeddah if he resigned. When asked about the job offer, Dr Mahathir said since Salleh had refused to resign, it meant he did not want to take up the job.
When asked if there was indeed such a job offer, Dr Mahathir said he could not remember what he had exactly offered. “I don’t remember exactly what I offered him but I did ask him to step down so as to prevent any scandal or necessity to take action (against him),” he said, adding that he later started the necessary process to remove Salleh as the Lord President. “Removal of a judge requires a decision by his peers as required by the Constitution, so we have to abide by the Constitution."
“The Agong thought that it was just a matter of dismissal by me." “I don’t have the power to dismiss anybody, any judge,” he said.
Dr Mahathir, who is the new president of Perkim, was speaking to reporters here after breaking fast with Perkim members at the Perdana Leadership Foundation here yesterday.
At the event, 40 converts also received cash aid and goodie
See previous post dated Wednesday, August 23, 2006