By Jacqueline Ann Surin
From left: Ambiga, Sulaiman Abdullah, Salleh Abas, Mah Weng Kwai and Tan Sri Ramon Navaratnam at the launch of the report by the Panel of Eminent Persons to Review the Judicial Crisis in Malaysia
KUALA LUMPUR, 29 Aug 2008: A panel comprising six eminent judges and lawyers from Malaysia, Australia, India and Pakistan have found the 1988 sacking of former Lord President Tun Salleh Abas as “incomprehensible” and “unconstitutional”.
In addition, the Panel of Eminent Persons to Review the Judicial Crisis in Malaysia, also found the dismissal of judges, the late Tan Sri Wan Suleiman Pawan Teh, and Datuk George Seah, as “unjustified”, “inappropriate” and “unconstitutional”.
The panel, which was commissioned by a joint committee comprising the Malaysian Bar, Lawasia, the International Bar Association’s Human Rights Institute and Transparency International-Malaysia, also called for immediate steps to “redeem the people’s faith in the credibility of the judiciary and the rule of law” to be taken.
Relying only on the material that was made available to the two tribunals set up under the former administration of Tun Dr Mahathir Mohamad, the panel said it was “incomprehensible how a judicial tribunal could accept” the charges against Salleh Abas as proved.
The panel said that having examined the proceedings of the First Tribunal, set up to try Salleh Abas, which found him guilty of five charges including “misbehaviour”, it was of the view that the former Lord President was “totally innocent and none of the charges against him had any merit”.
The panel also said Salleh Abas was, in fact, performing his “constitutional duty to uphold and protect the doctrine of separation of powers and the rule of law in the larger interest of the country.”
“The conclusion is inevitable, that the removal of Lord President Tun Salleh was non est. [editor’s note: means that which could not have been],” the panel found. Its findings were launched today by Bar Council president Datuk Ambiga Sreenevasan.
The panel comprised former Chief Justice of the Supreme Court of India JS Verma, former Pakistan supreme court judge Fakhruddin G Ebrahim, advocate of the Supreme Court of Pakistan Dr Asma Jahangir, advocates and solicitors of the High Court of Malaya Tan Sri Dr Abdul Aziz Abdul Rahman and Datuk WSW Davidson, and Dr Gordon Hughes, former president of Lawasia and partner at Blake Dawson, Lawyers, Melbourne.
The panel, which worked from September last year until delivering its report on 26 July this year to the joint committee, also said the findings of the second tribunal which suspended and then dismissed Wan Suleiman and Seah were “unjustified and inappropriate”.
“Glaring inconsistencies between enunciation of the legal principles and their application to the facts by the Second Tribunal is indeed incomprehensible. The consequent action of (the judges’) removal under Article 125 (of the Constitution) is unconstitutional and therefore non est.”
Salleh Abas was suspended in May 1988 after several run-ins with the Mahathir administration, by a tribunal that was headed by the acting Lord President Tan Sri Abdul Hamid Omar who was also junior in rank.
Wan Suleiman and Seah were removed from office in September 1988 by a second tribunal. They and three other judges were part of a special Supreme Court sitting that unanimously granted Salleh Abas’ application to restrain the First Tribunal until his objection to its composition was resolved by the High Court.
The panel was set up after repeated calls for the government to undertake a thorough and impartial examination of the 1988 judicial crisis fell on deaf ears.
Speed up judicial reform
Ambiga said the Malaysian Bar has always been steadfast in its support of the judges – including the three others who were suspended and then reinstated, namely the late Tan Sri Eusoffe Abdoolcader, Tan Sri Wan Hamzah and Tan Sri Azmi Kamaruddin – who suffered a “gross injustice”.
Calling the report “historic” in front of lawyers, former judges and the family members of the affected judges, Ambiga said: “We seek no punishment. We seek a correction of the record that now stands against these innocent judges.”
She said even though Prime Minister Datuk Seri Abdullah Ahmad Badawi had on 17 April 2008 acknowledged the wrongdoing to the judges by paying them or their families ex-gratia payments, the record against them remained unchanged.
“The findings of the panel completely absolve the judges of any wrongdoing.”
At a press conference later, Ambiga said the report would be submitted to the government, Bar associations worldwide and international organisations.
“We hope the government will accept the panel’s findings in full,” she said, and called on the government to speed up the process of setting up the judicial appointment commission as well as stepping up the judicial reform process.