Video Clip – CJ-Defensive & Evasive on Many Allegations; Promotions Based – Meritocracy & other factors; New Chief Judge Nominee acceptable & endorsed

UPDATE: from NST the Proof – 33 cases

The unwritten judgments: Former High Court judge yet to submit in 33 cases

By : By V. Anbalagan ; New Straits Times, 23 Aug 07
The Court of Appeal registry’s records revealed that a former High Court judge did not write grounds of judgment in 33 criminal and civil cases. The backlog included three criminal cases in Seremban which carried the death penalty. The judge presided over the cases while serving at the High Court there five years ago. The rest are civil cases in which he made rulings while there and in Kuala Lumpur between 1999 and 2002.

It is understood that the litigants in all 33 cases had filed notices of appeal against decisions by the judge who is now sitting in the Federal Court. Checks with lawyers representing the accused in the three criminal cases revealed that they were still awaiting written grounds to file the memorandum of appeal to the Court of Appeal. In one case, the Attorney-General’s Chambers is also awaiting the written judgment as it intends to cross appeal. The New Straits Times had on July 23 revealed that the judge had not provided written grounds of judgment in at least 30 criminal and civil cases. CJ disputed allegations that he had erred. A copy of a document from the Court of Appeal registry showing a backlog of cases due to the absence of written judgments. On Aug 16, it was reported that two men were languishing on Death Row in Kajang prison because the judge who convicted them at the High Court in Seremban had not provided grounds of judgment. Another person was also ordered by the same judge to be held at the Sungai Buloh prison at the pleasure of the Yang di-Pertuan Besar of Negri Sembilan on grounds of insanity.

On Tuesday, Chief Justice of the Federal Court Tun Ahmad Fairuz Sheikh Abdul Halim disputed allegations that he had erred in promoting judicial officers who had not written judgments. He had also asked for proof that he had elevated undeserving judges. Meanwhile, lawyer Karpal Singh questioned the basis on which Ahmad Fairuz had promoted former High Court judge Tengku Baharuddin Shah Tengku Mahmud to the Court of Appeal. "A delay of nine years and three months with the grounds of judgment not supplied is more cause for Ahmad Fairuz to spring into action" he said.

On Monday, former fish and vegetable vendor Baha Jambol who is on Death Row for dadah trafficking, filed an action in the Court of Appeal to free him or set aside the conviction of the High Court. Tengku Baharuddin had sentenced Baha to death on April 26, 1998. Karpal also urged acting Court of Appeal president Datuk Alauddin Mohd Sheriff to review all pending appeals where there had been a delay in delivering grounds of judgment. This will help expedite submissions of the written judgments. Lawyer Baljit Singh Siddhu said there should be a law to compel judicial officers, including those from subordinate courts, to provide written grounds of judgment within a specific period of time. "Now, we only have the chief justice’s circular which is not legally binding on judicial officers," he said.

= = == = == = == =

Press Release, Ambiga Sreenevasan ; President; Malaysian Bar

Wednesday, 22 August 2007, 08:06pm;

The Bar Council is disturbed to read reports published in today’s papers containing remarks made by the Chief Justice questioning the need to use English common law after 50 years of independence and seeking its abolition. It is an issue that has been raised before in 2004, and now that it has resurfaced, some explanation is necessary. The Federal Constitution is the supreme law of the land as provided in Article 4(1). This Merdeka Constitution also formed the basis when Malaysia was established on 16th September 1963 and North Borneo and Sarawak joined the Federation with the common law system having pride of place.

The Courts are tasked with the responsibility of interpreting the Federal Constitution. In undertaking that duty, common law principles are applied. The cold print of the words used in the Constitution and its spirit are developed by judges deciding cases within the structure of the common law system. Interpretation of the Constitution is not undertaken in a vacuum. The body of Malaysian law comprises the Federal Constitution (as the supreme law), written law, that is, Acts enacted by Parliament, and judge made law that is, case law. Subject to being declared as unconstitutional by a Court, Parliament has a free hand to enact laws. In the exercise of its legislative function, Parliament has passed hundreds of statutes since Merdeka: some of which are modelled on or inspired by foreign statutes while others are purely domestic without any foreign parallel.

Judges have applied the laws of Malaysia in the thousands of cases that have been determined in all branches of the law in all the Courts of Malaysia for the past 50 years. A significant portion of them have been reported in our law reports, and form the large corpus of case law which is an integral part of the laws of Malaysia. These reported cases operate as precedents for future cases, so that like cases are decided in a like manner to avoid injustice and thereby promoting reliability and certainty. The Civil Law Act, which came into force in Malaya on 7th April 1956 and therefore prior to Merdeka, provides for the reception of English common law and the rules of equity, but only insofar “as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary”: see Section 3 (2).
Thus, the Malaysian Courts have a wide discretion whether to accept any English common law principle or rule of equity. When Malaysian judges accept such principles, they become part of Malaysian common law and Malaysian law is developed in that manner. Nearly every British colony has adopted the common law system inherited from the British. But in each country, the Courts develop their own common law which may not be identical or similar to English common law. It is in this flexibility that lies the strength of the common law. Thus, Malaysian common law differs in many respects from Indian common law or Australian common law.

Without doubt, the common law system is one of the greatest and most respected legal systems in the world. It also forms the basis of public international law. There is no other comparable legal system that commands such universal respect among jurists.to state publicly and without acceptable basis that the common law system should be replaced. What then is the system suggested? What is to happen to the corpus of Malaysian case law painstakingly built up by distinguished Malaysian judges — is it to be discarded overnight? What about the In these circumstances, it is unfortunate for the head of the Judiciary, which institution applies Malaysian common law principles in all the Courts of the land daily, commercial community including foreign investors; for whom - the common law’s certainty, flexibility and adaptability have made it a favourite and for whom any suggestion of change will be a source for concern?
There is little to be gained in changing a system of law that is respected and has worked well for 50 years in our country, and hundreds of years in other jurisdictions. What is required instead is an examination and positive change in the system that administers that law so that it inspires public confidence and ensures a strong and independent judiciary
= = == = = ==
ABOVE: Malaysiakini last (21 Aug 07) headlined story H E R E

Now CJ refutes all allegation. Watch Video Clip - his defensive & evasive replies to Allegations and justification of his questionable promotions
= = ==

007/08/22
'Promotions do not rest on written judgments'; By : V. Anbalagan, NST

PETALING JAYA: The chief justice came out with guns blazing yesterday
over criticism that he had promoted incompetent judicial officers.
Tun Ahmad Fairuz Sheikh Abdul Halim said claims that the promotions
included those who had failed to submit written judgments should be
justified. "Show it to me. Show me that these people had been promoted and yet
had so many grounds to write," he shot back when told that some of
these judges were elevated during his tenure. Smarting over observations from various quarters that the absence of judgments had delayed justice, he said written judgments were not the sole criterion for promotion.

Nor did it rest on having cleared a lot of cases. In the same breath, however, Ahmad Fairuz said that judges had, in the past, been overlooked for promotion if they had outstanding written judgments. The nation's top judge said the appointment and promotion of judicial officers was based on meritocracy. "But we do not solely rely on their work."
Other factors taken into consideration include people whom judges socialised with, their personal life, how they presented themselves in public and their judicial temperament.
But Ahmad Fairuz made it clear that he would act on the allegations, including setting up a tribunal to remove them.

"I will look into the matter. If they (judges) are no longer useful to the judiciary, then we will tribunalise them for misconduct." However, he qualified this by saying that it would be unfair to set up a tribunal to remove a judge because of one outstanding judgment. "A person could have been a judge for 15 years and only on one occasion he did not write grounds. Does that misconduct justify a
removal?" He said it was a different matter altogether if the judge persistently
did not write judgments.

Ahmad Fairuz, who has been acting chief judge of Malaya since Jan 8, was speaking after opening a seminar on the thoughts and academic works of the late Tan Sri Ahmad Ibrahim at a hotel here. He had been asked to respond to a report in the New Straits Times yesterday that a prisoner on Death Row for nine years, Baha Jambol,
had filed an application to the Court of Appeal to be freed on grounds that the trial judge had yet to provide the written grounds despite repeated reminders.
-------------------------------
2007/08/22
Chief judge of Malaya nominee 'endorsed'
By : Anis Ibrahim

KUALA LUMPUR: An acceptable candidate has been proposed for the post of chief judge of Malaya and this may end the months-long delay over the appointment of the country's third-most senior judicial officer. A highly-placed source told the New Straits Times that a "capable and suitable" Federal Court judge had been endorsed as a possible
successor to Tan Sri Siti Norma Yaakob, who retired in January. "A candidate suggested earlier by the chief justice will not be the new chief judge of Malaya." The prolonged vacancy had been much talked about, particularly after press reports alleged an earlier nominee had been rejected by the Conference of Rulers.

Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim assumed the role andfunction of the chief judge of Malaya three days after Siti Norma's retirement. His decision had not gone down well with the legal fraternity.
Bar Council chairman Ambiga Sreenevasan said that under the Courts of Judicature Act 1964, Ahmad Fairuz could not be the chief justice and the chief judge of Malaya at the same time.
"The chief justice must designate another Federal Court judge otherthan himself as the chief judge," Ambiga said. Earlier this month, Ahmad Fairuz said the vacancy would be filled by the end of the month.

"I am not at liberty to disclose the name now. It is classified under the Official Secrets Act." The NST understands that the delay in the appointment was partly due to the rejection of the candidate originally nominated by Ahmad Fairuz.
The source added: "A decision has yet to be made, but the new nominee is a good candidate for chief judge."

= = == =
CJ: No lazy judges, prove allegations
R. Surenthira Kumar, SUN
PETALING JAYA (Aug 21, 2007): Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim today refuted claims that judges who have not written grounds of decision have been promoted and challenged the allegations to be proved. He said the judiciary has records of judges who have not written their grounds of decision and their preliminary investigations revealed the allegations to be untrue. Ahmad Fairuz said this when asked by reporters to comment on reports in the media that a Court of Appeal judge who had failed to write about 30 grounds of decision had been elevated to the Federal Court.

Another report also stated there were at least three cases involving death row prisoners who were unable to continue with their appeals because the judges who heard their cases have not given their written judgment, and they too have been promoted. "I am investigating it now. We have not completed our investigations. Preliminary investigations show the judge has read his grounds of judgment in open court in 2002. So that report is not right," said Ahmad Fairuz. He said in the past, judges who have not written their grounds of judgment are not promoted unless they completed the task. "We have got to check first. You know it is very dangerous when we say something which is not the truth. In Islam it is called "fitnah" (slanderous). It is very bad, we don't say anything which is not the truth," added Ahmad Fairuz.

On another allegation that a Federal Court judge had not written his grounds of judgment on three cases when he was a High Court judge in Seremban, Ahmad Fairuz also brushed it off. "No... he has already written his grounds of decision and has already read it in court in 2002. I am still checking on it but that was what my preliminary investigations reveal," he added. Ahmad Fairuz said the judiciary relies on meritocracy when promoting judges but the elevation also depends on other factors, such as socialisation and conduct in private and public, judicial temperament and clearing of cases, among others. Asked if the failure of judges to provide their grounds of judgment within a reasonable time could be viewed as misconduct, Ahmad Fairuz said the issue revolves around what could be interpreted as misconduct. "Its (failure to give written grounds of decision) one of the factors.

Is failure to write grounds of judgment alone sufficient to say amounts to misconduct. A person who has been a judge for about 15 years, and only on one occasion he didn't write his grounds of decision, is that a misconduct justifying for removal?" asked Ahmad Fairuz. He was speaking to reporters after opening a seminar titled: Ahmad Ibrahim: Pemikiran dan Sumbangan Ilmiah organised by the Islamic Understanding Institute of Malaysia (Ikim) in a hotel here today.

Ahmad Fairuz was asked abut allegations that there are a number of judges who had not written their grounds of decision when they were High Court judges, but have been promoted by him. "Show it to me. You show to me that these people have been promoted and yet they have so many grounds to write," replied Ahmad Fairuz. Asked as to whether the judiciary can do without this kind of judges, he said if they are no more useful to the judiciary, action can be taken against them by way of a tribunal which is allowed to be set-up under the provision to remove them for misconduct. In an immediate response to Ahmad Fairuz's comments, lawyer Karpal Singh, who yesterday filed an application to the Court of Appeal for his client to be freed due to the absence of a written judgment, urged other lawyers handling similar cases to come forward and show proof that the written grounds of decision were in fact not provided. "In the interest of justice, the Chief Justice, who in his capacity as the acting Chief Judge of Malaya would have access to all the details, should disclose who among the judges had failed to provide the written grounds of their judgments," said Karpal.

He said by looking at the record of appeal which would contain the notes of proceedings, one would be able to see whether the written judgments are available. Asked to comment on Ahmad Fairuz's reply that in one particular case, the grounds of decision had been read out in court by the judge, Karpal said it depends on whether it was a mere decision or whether the grounds for the decision were given. "Otherwise it would be insufficient for the lawyers to take up the case further," he added.

= = == More from NST

007/08/21

CJ warns judges of disciplinary action for misconduct; BERNAMA

KUALA LUMPUR, TUES:

Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim has warned judges who fail to conduct themselves well in discharging their duties, including persistently not writing the grounds of judgment, that they will face disciplinary action.

Ahmad Fairuz said he would look into the matter to bring judges before a tribunal to face disciplinary action if they are no longer useful to the judiciary.

He said the Federal Constitution had set procedures to deal with judges’ misconduct, including bringing them before a tribunal to face disciplinary proceedings to decide whether or not they should be removed from the judiciary.

Ahmad Fairuz said factors that were considered for removal of judges included not only failing to write grounds of decision but also their behaviour, such as being highly temperamental. Commenting on a newspaper report that a prisoner who had languished on death row for more than nine years awaiting his appeal had filed an application to the Appellate Court seeking his release because of a High Court judge’s failure to provide written grounds of judgment, Ahmad Fairuz said he was investigating the matter. “My preliminary investigation showed that the particular judge read out his grounds of decision in open court in 2002. But I don’t know what happened after that. So we got to check. There must be something wrong somewhere” he said.

He was speaking to reporters after launching a seminar entitled “ Ahmad Ibrahim: Pemikiran dan Sumbangan Ilmiah” organised by the Malaysian Institute of Islamic Understanding (Ikim) at a hotel here.
= == = = = =from STAR

Tuesday August 21, 2007; Judges who misbehave can face tribunal
By RAPHAEL WONG

PETALING JAYA: Judges who behave inappropriately in and out the courtroom will be removed through a tribunal. Describing them as “not useful to the judiciary”, Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim said bad behaviour by judges included “mixing a lot with corporate people”, being biased, consistently not writing grounds for judgment and being very moody and highly temperamental in court. “Many factors are taken into consideration before a judge is promoted. We consider not only whether he did write his grounds of decision, but also whether he has cleared a lot of cases or not. “Also important is whether his judicial temperament is still maintained, such as he does not shout and yell at people in public,” the top judge said when approached by reporters after launching the “Ahmad Ibrahim: Thoughts and Knowledge Contribution” seminar organised by the Malaysian Institute for Islamic Understanding (Ikim) here Tuesday.

He said some judges started off as “very good but later on, they turn out to be very moody and very highly temperamental”. The removal of a judge is provided for under Article 125 of the Constitution, which states that the Yang di-Pertuan Agong, in consultation with the Prime Minister or the Chief Justice, can appoint a tribunal that may recommend the removal of a judge who has committed a breach of any provision of the code of ethics. Ahmad Fairuz also admitted that the non-writing of grounds for judgment was a factor still open to interpretation.

“What is the meaning of misconduct? Is not writing grounds of decision alone sufficient to constitute misconduct? “A person has been a judge for 13 years, 15 years, and only on one occasion did he not write his grounds of decision – is that a misconduct justifying removal? It is different if he has been persistently not writing. We have to apply common sense,” said Ahmad Fairuz.

ABOVE: Seeing double, real headache in Judiciary, nominee not accepted, Promotions allegations - all "fitnah" (slanderous)?

Asked whether the judiciary could do without these judges, Ahmad Fairuz said: “Well, it is a very difficult question to answer but I will look into the matter. If they are no more useful to the judiciary, we will have them face a tribunal.” He also refuted allegations that there were many judges promoted during his tenure even though they had not written judgments when they were High Court judges. However, the Chief Justice said that preliminary investigations found that the allegation that a Federal Court judge had not written as many as 30 grounds of judgment was untrue. “According to our records, we do not have such a thing. There is no Federal Court judge who has such a big amount of grounds of decision to write,” he said. Ahmad Fairuz also questioned a newspaper report on the allegation against the Federal Court judge, saying preliminary reports revealed that the judge in question had written his grounds of judgment and read it in open court in 2002. The last time a tribunal was set up was in 1988 to remove then Lord President Tun Salleh Abas. He was brought before a tribunal convened by the then prime minister Datuk Seri Dr Mahathir Mohamad on the grounds of misconduct.

= = =Watch the Video Clip 1 min 18 s - CJ Defensive & Evasive Replies

= = = == = = == = == = = == =

next new post ON

Abu Talib – Unfit to Comment – His Tainted Role - key prosecuting officer 1988 Judiciary crisis; Bar Council questions CJ on Replacement of English common law after 50 years of independence?

Trusted and groomed but turned traitor; His extraordinary mission & cooked up stories in the Tribunal as the key prosecuting officer

ABOVE: Malaysiakini timely Report on 22^nd Aug 07, details H E RE was spot on to shut him out on his advice to stop the judiciary rot.

Abu Talib the then AG was among those responsible for the damage done to the institution, stressed former UN special rapporteur on the independence of judges and lawyers Param Cumaraswamy (ABOVE) He said the damage cannot be undone by pointing the finger at Chief Justice Ahmad Fairuz Sheikh Abdul Halim and demanding the removal of judges whose competence are under question.

"He worked hand-in-glove with then Prime Minister Dr Mahathir Mohamad (BELOW, the all powerful Dictator in 80's) to remove Tun Salleh Abas as lord president”

= = == == = == = = == = == = == = = =

To recap, reread & refresh for many - what role Abu Talib (ABOVE) played and the half-truths he spun out then, the extract below by Tun Salleh Abass himself says it all as he recalled the events.

"On the next day, Saturday, 28 May 1988, I went to my Chambers, early as usual and re-read my signed letter, made some corrections, had it re-typed and signed it. As my letter was about to be dispatched, at about 9.30. a.m., the Attorney-General came to see me.The Attorney-General subsequently told the world, in a court of law and outside it, that I had asked for the meeting. That is not true. I must stress, painful though it is, that the Attorney-General did not tell the whole truth of the matter

"The truth," as Oscar Wilde put it, "is rarely pure and never simple." That is one of the misfortunes of mankind. The truth of that Saturday morning is that a third party was involved, a third party whom I shall not name for the moment, who felt that a meeting with the Attorney-General "could do no harm." I did not heartily welcome the suggestion but I do not believe in closing doors to any potentially useful dialogue. And so I agreed to the meeting. What did I have to lose? I put my letter aside for the moment and talked to Tan Sri Abu Talib. The Attorney-General has since identified the third party as a Supreme Court Judge (See Appendix XIV), and implied that it was I who had used the judge as an emissary.

The Attorney-General and I talked for about an hour in my Chambers. I have known this man Abu Talib Othman for a long time. In the middle of the seventies, the then Attorney-General's Chambers lost many experienced officers through retirement, resignation and elevation to the Bench. It became my responsibility as Solicitor-General (the then Attorney-General, Tan Sri Abdul Kadir Yusof was an elected politician) to plan ahead with the view of training and exposing young officers to various kinds of work which the Chambers do, so that the Service would not suffer when the time came for me to retire.

I chose Abu Talib, who was then a comparatively junior officer, being the Legal Advisor and Deputy Public Prosecutor in Penang, to come to Kuala Lumpur to fill the vacuum. I took him to Geneva in 1977 for the United Nations Conference on the Right of Asylum, the idea being that although he was not an international lawyer he would gain some insight and experience into the world of international politics and diplomacy. I also took him as my junior in the prosecution of some memorable cases, notably the trial of former Selangor Menteri Besar, Datuk Harun Idris, for corruption and criminal breach of trust, in the mid-seventies. The case was full of high drama and political fireworks, and received wide local and international publicity. Datuk Harun Idris was convicted on all charges, tried and imprisoned. (Subsequently he was granted a full pardon by His Majesty The King, but that is another story.) All these things were done with the view of building Tan Sri Abu Talib's public stature so that he would be acceptable both to the authorities and to the public, to succeed me when I had to finally leave the Chambers. We went together through other vicissitudes in court. He did assist me more than once in prosecuting the high and the mighty. I then thought him fearless and fair as a prosecutor. Never did I entertain the thought that one day he would turn against me, and in the way he did. And now, on the morning of Saturday 28 May, he expressed his sympathy for me in my plight and said he was most unhappy about the whole affair because it was so unjust, particularly so because I was his former superior. (There was no logic in that, but people do say the oddest things under emotional stress, and the Attorney-General did appear emotional that morning).

According to him His Majesty was very angry over the letter which I wrote him and to the Malay Rulers, and in fact His Majesty was so incensed that he had minuted his reaction to the Prime Minister immediately on the face of the same letter, telling the Prime Minister to get rid of me as soon as possible! I could not help wondering, if that was indeed so (that the anger was immediate and great), why the action against me took two full months from 28 March when the letter was actually sent to His Majesty, to 27 May when I had my meeting with the Prime Minister - to materialise? But, to jump ahead for a moment, there was - and remains - one wonderful mystery. My letter written on behalf of all the Malaysian judges to His Majesty, has disappeared! The Attorney-General could not produce it and the Judicial Tribunal which sat on the matter never saw it! It seems the prime evidence for initiating my removal has simply vanished!

Was the disappearance of the letter the cause of the great hiatus in the affair which was. allegedly of such grave import? How does a vital document like that vanish into thin air? Does that explain the extraordinary delay? We shall see. Now the Attorney-General suggested to me that it would be best if I resigned my post quietly. (Echoes of the Prime Minister's Royal message that I step down?) A Judicial Tribunal would be messy, embarrassing. He also told me that I could not trust or depend on my fellow-judges to support me in my predicament. The judges, he said, were not very reliable. (Who were the "unreliable" judges he had in mind?) Ale hesitation and the general lack of purpose the judges had displayed on the previous afternoon did nothing to encourage me to argue or contradict him immediately. But his open criticism of the judges disturbed me.

Then, to prove the point about these allegedly unreliable judges, and to demonstrate how angry His Majesty actually was with me, he said His Majesty had in fact minuted on the face of the letter I had sent to him, the word "buang", that is, "dismiss" me from office. In Malay the word "buang" means "throw out" or "expel". It is not a very refined expression.But of course we shall never know exactly what His Majesty wrote because that historic letter has vanished.

According to the Attorney-General the King had also introduced Tan Sri Abdul Hamid to his Hari Raya Puasa guests on 17 May, 1988 - ten full days before I was actually suspended - as the new Lord President! I must confess that this news shook me. I cannot describe the turmoil it created in my mind. Tan Sri Abu Talib then told me that he was very embarrassed by it all. It was not just a shocking story, or an embarrassing one; it was, I thought, the most disgusting story I have heard in my life! If there was any truth in it - and why should the Honourable Attorney-General make up such a tale? - the whole affair of my removal was most thoroughly planned, far in advance, and the plan was now about to be executed. There was now in me that goblin of doubt. Why was the Attorney-General telling me this unsavoury story at all? What effect was he aiming at?

I did not have much opportunity that morning to think it through. For he went on, and stressed that the whole business of the intended removal of me from office was very wrong. He then suggested that in the circumstances it was best that I quietly retire from the scene, take my pension, and put the whole episode behind me.

He also said he would see the Prime Minister and go over the matter with him, and undertake to make sure I got all my pension benefits, as if I had actually retired at the full age of 65 - I still had more than six years to serve to legitimately deserve all that - and secure me a job in the International Islamic Development Bank in Jeddah. It would mean a fantastic salary in comparison with what looked like the meagre wages of the Lord President, and with opportunities for a lot of travelling. This was a new and unexpected twist. I did not know what to make of it. I am not a banker, and was the Prime Minister really in a position to "fix" me a job of that kind as simply as all that? And should I participate in such a "fixing?"

Some ten months later the Attorney-General was to reduce that glittering offer to "perhaps get" me "a respectable job" provided I retired "prematurely." (See Appendix XIV). I can only say it was a pathetic attempt to rationalise away something that does not bear thinking about. It was impossible to admit, of course, that inducements - whether it was in the form of a "full pension," with or without an additional "respectable job", or a plum banking job in Jeddah - were offered to me.

The discussion, as I said, lasted about an hour. It may well be that I was overwhelmed by the enormity of what Tan Sri Abu Talib told me, and I finally found myself agreeing that it might indeed be best if I retired quietly. A confrontation would hurt my family and embarrass my fellow judges. If the episode in the Istana was true, the desire for my removal was very strong, and already decided upon, and only the mode of it was uncertain. Leaving the scene without a fuss would be the "practical" thing to do. The Attorney-General and I did not delve into any area outside the "practical", the "proper", the "sensible", the "reasonable", and, I suppose the totality of all these things, the "wise".

But the wisdom of a man under the kind of strain I was in on that Saturday morning was the wisdom of a sleepwalker or a man in a trance. Tan Sri Abu Talib then left my Chambers, according to him, to see the Prime Minister. He left me with the single thought: the King was angry and so I must go.

I may note here that the Attorney-General did not say a word about any other charge against me. I cannot stress this strongly enough or carefully enough here for it is a vital clue to the nature of his bona fides in the days to come.

So, to repeat, on Saturday 28 May, 1988 the Attorney-General mentioned no other charge against me in his arguments that I should retire prematurely and quietly. His one single point was that the King was angry with me. Yet he was to argue strenuously later that three days earlier, on Wednesday 25 May, 1988, (when I was in Ipoh with Justice George Seah and Justice Hashim Yeop Sani) the Prime Minister had already made his representations to His Majesty with three other major complaints.

And it was to emerge, subsequently, that it was none other than the Attorney-General himself who had actually framed the charges against me! I shall return to this point again, for the Attorney-General was to claim that he came to see me that morning only "out of respect" for me. It was strange that a man who came to see me, "out of respect for me," did not see fit to tell me that there were a great many other reasons for the Government seeking my departure from office besides the alleged displeasure of the King. Why did he not tell me?

The other "charges", however absurd they proved to be, were at least not characterised by appearing to be something in limbo, something of an "insubstantial pageant" in the mind. They were foolish but only foolish, and not mythical as well. After the Attorney-General left my Chambers I hardly had time to reflect, for the newly elected Bar Council President, Raja Aziz Addruse (who was to become my personal lawyer shortly) and two other Bar Council members who had been waiting to see me, came in and I could hardly deny them a meeting. They wanted to confirm what were still, for the public, only rumours, about my position.

I told them I was unable as yet to comment. It was awkward because I myself did not know what lay ahead, and what the Prime Minister would have to say to the Attorney-General's proposals. (At that point I still believed implicitly in the still unfolding sequence of events to be just what they appeared to be.) Things had moved too quickly. In the circumstances I did not think it proper to tell the Bar Council officials what had transpired thus far. I asked for time. They would be kept informed, I said. They then left, and I could see, looking rather disappointed. I felt sorry for them.

At about 11.15 a.m. Tan Sri Abu Talib was back in my Chambers. The Prime Minister, according to him, was in a very bad mood (what was the relevance of that?) but nevertheless agreed to accept my offer (was the Attorney-General insinuating that this was a sign of the Prime Minister's great magnanimity?). As for the position in Jeddah, there were details to be worked out. The matter would be taken up. With that news in hand, I began to prepare the necessary letter to the Prime Minister. When I completed it, I showed it to Tan Sri Abu Talib.

The expression I had first used was retirement in "the public interest" and when I showed it to him he said that it should be changed into retirement in kepentingan negara or retirement in "the national interest", so as to enable him, so he explained, to secure payment of my gratuities and pension - because the whole affair was so unjust and that my services as a judge should at least be compensated. It was all very emotional.

The phrase "public interest" denoted that the person concerned was being retired for some reprehensible conduct in the interest of the public welfare, whereas in the "national interest" indicated that the official concerned was needed for higher duties elsewhere. One might sum up by saying "public" was for public enemies while "national" was for national heroes. Public officials to become Governors or to hold other special office were usually retired in the "national interest". But here I was, being forced out of office, in the "national interest!" What could that "Politeness" be good for except to justify giving me an "important" job? And yet there were to be sanctimonious assertions that no inducements were offered to me!

Subsequent events were to prove how splendidly ironic that morning's piece of literary work was going to be: I had "misbehaved" badly and therefore removed from office, and so I was to be retired "prematurely" in the "national interest!"Anyway, following his suggestion I got the letter amended and when that was completed, I showed it to him again, and he was satisfied with it. The letter (the original in Bahasa is in Appendix V) was very brief and to the point:

“Leave and retirement

"To avoid embarrassment all round I have reconsidered the matter and have decided that it is better in the national interest for me to retire immediately after taking all the leave due to me, that is 96 days, and the leave to commence from today."

The letter was then passed on to my Orderly to be delivered to the Prime Minister's office. But Tan Sri Abu Talib said that since it was nearing 1.00 p.m. [on a Saturday, being a half working day] he wanted to make sure that the letter reached the Prime Minister and was not mislaid. (But what was the hurry? Why was he so desperate to get my early retirement decision on that Saturday? But he was very anxious that it be done at once). Therefore he himself went out to arrange for his bodyguard to accompany my Orderly to get the letter safely delivered. Before he left my room he used my telephone to ring up the Prime Minister's office to ensure the delivery of the letter. Then he left my room saying he was in a hurry to go and see the Chief Justice, Tan Sri Hamid, next door.

He did not tell me why he had to see Tan Sri Hamid on that day. But it was obvious that if I stepped down, the Chief Justice would succeed me at once. I imagine the news had to be conveyed to the Chief Justice as soon as possible. But why? We were to discover that speed was an important consideration in more than one respect in this entire affair.

The reply to my letter to the Prime Minister came with startling, not to say suspiciously great, speed. In fact my Orderly delivered it to me at 1.00 p.m. on that eventful Saturday afternoon! I was greatly relieved, of course, because it promised to lift my suspension from office. Whatever the other implications, I was no longer in that alleged disgrace. I could now retire in peace.

But despite the relief, one fact was inescapable: the speed with which the Prime Minister had responded was impressive. My letter to His Majesty The Yang Di-Pertuan Agong had taken two full months to produce a reaction, but this letter to the Prime Minister had taken what looked like two minutes! It took longer than that, of course, but the Prime Minister's alacrity on the occasion was, to say the least, dazzling. But how? Had the Prime Minister in fact been waiting, pen poised, in his office, for my letter? Had the reply, perhaps, already been prepared even before my Orderly with my offer of early retirement reached him?

The letter was brief, but unlike yesterday's missive, very far from blunt. He approved my leave. As to my retirement, he wrote, routine action would be taken on it. It was a polite letter. In fact it was a very polite letter. Considering the Attorney-General's message that the Prime Minister was in a bad mood just an hour earlier, it was an extremely polite. letter. The official translation of it read as follows:

"I have no objection for YAA Tun to take all leave due to you prior to your retirement: that is 96 days from today. "With regard to your retirement from the post of the Lord President, appropriate action will be taken in accordance with the procedure that is being practised. "I will always pray that Tun remains in good health."

For a moment I thought it was all over. In a matter of about 24 hours I had been reduced - six years and 3 months prematurely - from Lord President of the Supreme Court of Malaysia to a humble pensioner, and sudden obscurity.

But slowly new thoughts entered my mind. The thought of obscurity did not particularly disturb me. I am not a man given to a life of active intercourse with the glittering elites of society. I play some golf but I enjoy gardening and reading more. Retirement would be no pain at all. Besides, public officials, however important, sooner or later had to step down from office and fade from the mainstream of national life. We all have to anticipate and accept that small ending as one of several rites of passage in our short mortal journeys.

But now there was a more disturbing question. The relief from tension brought forth my own sensibilities out of their trance. Wisdom was not only a matter of the "practical", the "proper", the "sensible", the "reasonable". What about the not so "practical" and at the same time perhaps the most "practical" matter of all, the question of my self respect, my honour?

Did this descent into obscurity - after allegations of "misbehaviour" - also mean ignominy? Will I be remembered in the future only as the first Malaysian judge who was ever forced to retire from office because he misbehaved himself so grossly? I went home that day weighed down by these unpleasant thoughts.

= = == = ==

For further read, Go H E R E ON

Wednesday, September 27, 2006 - TUN SALLEH ABAS Bares ALL- New and Important Facts for a REVIEW of the 1988 JUDICIAL CRISIS & Dr MAHATHIR Immediate RESPONSE

& for additional read, Go H E R E ON

Wednesday, August 23, 2006 - TUN SALLEH ABBAS REVEALATIONS: DR MAHATHIR AMENDED & ENACTED ONE-Sided Laws for ABSOLUTE Power; DISMISSAL of JUDGES – A Great Fraud on JUDICIARY

= == = == =and the Latest from Bar Council - Replacement of English Common Law after 50 years?

Press Release, Ambiga Sreenevasan ; President; Malaysian Bar

Wednesday, 22 August 2007, 08:06pm;

The Bar Council is disturbed to read reports published in today’s papers containing remarks made by the Chief Justice questioning the need to use English common law after 50 years of independence and seeking its abolition. It is an issue that has been raised before in 2004, and now that it has resurfaced, some explanation is necessary. The Federal Constitution is the supreme law of the land as provided in Article 4(1). This Merdeka Constitution also formed the basis when Malaysia was established on 16th September 1963 and North Borneo and Sarawak joined the Federation with the common law system having pride of place.
The Courts are tasked with the responsibility of interpreting the Federal Constitution. In undertaking that duty, common law principles are applied. The cold print of the words used in the Constitution and its spirit are developed by judges deciding cases within the structure of the common law system. Interpretation of the Constitution is not undertaken in a vacuum. The body of Malaysian law comprises the Federal Constitution (as the supreme law), written law, that is, Acts enacted by Parliament, and judge made law that is, case law. Subject to being declared as unconstitutional by a Court, Parliament has a free hand to enact laws. In the exercise of its legislative function, Parliament has passed hundreds of statutes since Merdeka: some of which are modelled on or inspired by foreign statutes while others are purely domestic without any foreign parallel.

Judges have applied the laws of Malaysia in the thousands of cases that have been determined in all branches of the law in all the Courts of Malaysia for the past 50 years. A significant portion of them have been reported in our law reports, and form the large corpus of case law which is an integral part of the laws of Malaysia. These reported cases operate as precedents for future cases, so that like cases are decided in a like manner to avoid injustice and thereby promoting reliability and certainty. The Civil Law Act, which came into force in Malaya on 7th April 1956 and therefore prior to Merdeka, provides for the reception of English common law and the rules of equity, but only insofar “as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary”: see Section 3 (2).

Thus, the Malaysian Courts have a wide discretion whether to accept any English common law principle or rule of equity. When Malaysian judges accept such principles, they become part of Malaysian common law and Malaysian law is developed in that manner. Nearly every British colony has adopted the common law system inherited from the British. But in each country, the Courts develop their own common law which may not be identical or similar to English common law. It is in this flexibility that lies the strength of the common law. Thus, Malaysian common law differs in many respects from Indian common law or Australian common law.
Without doubt, the common law system is one of the greatest and most respected legal systems in the world. It also forms the basis of public international law. There is no other comparable legal system that commands such universal respect among jurists. In these circumstances, it is unfortunate for the head of the Judiciary, which institution applies Malaysian common law principles in all the Courts of the land daily, to state publicly and without acceptable basis that the common law system should be replaced. What then is the system suggested? What is to happen to the corpus of Malaysian case law painstakingly built up by distinguished Malaysian judges — is it to be discarded overnight? What about the commercial community including foreign investors; for whom - the common law’s certainty, flexibility and adaptability have made it a favourite and for whom any suggestion of change will be a source for concern?

There is little to be gained in changing a system of law that is respected and has worked well for 50 years in our country, and hundreds of years in other jurisdictions. What is required instead is an examination and positive change in the system that administers that law so that it inspires public confidence and ensures a strong and independent judiciary