Noor™

It is disappointing to hear that the government would not review the sacking of three Supreme Court judges which took place in 1988. The de facto law minister, Datuk Seri Nazri had spoken his unwelcome decision. He further mentioned that unless there is “new fact emerges”, no review will take place.

Responding to that, Tun Salleh pointed out five reasons of which he argued to be important facts to be the basis to review his case, and later, the learned minister had rejected the reasons and alleged those reasons did not merit a review. In furtherance to that, he defined the “new fact emerges” as, if any of the member of the tribunal comes forward to declare that he was told to sack Tun Salleh. In absence of that, no review will be made.

What amazes me is that the one who initiated the disgraceful act of sacking those judges, the former Prime Minister Tun Mahathir was reported to admit that he told Tun Salleh “to go”, on the basis of “to prevent any scandal” (NST, 27/9/06). What I have in mind is whether it is stated in the Federal Constitution that a judge can be removed from his office on the ground of preventing scandal. Article 125(4) of Federal Constitution provides that a Federal (it was then read as Supreme) Court judge would only be removed on the ground of misbehaviour or inability to discharge the function as a judge, and should a scandal amount to misbehaviour or inability to perform his duty as a Federal Court judge, such thing was yet to happen and unfortunately had not happened. It is a well known notion that a man shall be presumed to be innocent until otherwise proven and to convict a person before he committed the wrong is prejudice. The admission made by the former Prime Minister should be looked as “new fact emerges”, as it reveals the intention behind the constitution of the tribunal and going by the maxim of which “equity looks into intention rather than form”, we can conclude that the tribunal was used by the former prime minister to accomplish his intention of which he claimed as “to prevent scandal” rather than the Lord President himself had misbehaved.

Another amazing fact is that Datuk Nazri had pointed out that the five incidents mentioned by Tun Salleh have no merit as it took place before the tribunal was formed (NST, 28/09/2006). I recall what Tun Salleh had mentioned a day before, in the same newspaper, where he mentioned the fifth incident is his first audience with Sultan of Johor, the concerned Yang Dipertuan Agong, after his dismissal, as he acted as advisor to the Rulers when the government was to curb the immunity of the Rulers. He mentioned that His Highness regretted for what happened to Tun Salleh and realized that He had been “made use of”. To include this as incident before the tribunal was formed is an unforgivable error and as such, the contention made by the minister shall not survive. The minister ought to properly read the reasons put forward by Tun Salleh before making any comment, which had caused humiliation against the minister himself. I must agree with Tun Salleh when he said the minister had made his decision impromptu or in haste once the minister was asked about reviewing the 1988 case, and again he had done the same mistake, when responding to the reasons put forward by the former Lord President.

Besides the aforementioned mistake, the minister had confined the meaning of “new fact emerges” to what he believes as if any of the 5 judges of the tribunal admits that he was told to remove Tun Salleh. Impliedly, the basis of which the case will be reviewed had been narrowed down to only one basis and that one is admission of the member of the tribunal that they were told to remove Tun Salleh. It will never be just if tons of evidences are put forward and it become wasteful just because of non-compliance with the only reason that had been put forward by the minister.

To put it in Tan Sri Azmi’s words, it is not millions ringgit of compensation is demanded, nor to reinstate those judges back to their position as they were too old for that. What is demanded is restoration of the judges’s honour and hopefully with that, the bench will regain public confidence and appear to be more independent and transparent compared to what it is today, and public confidence is the only strength and force that the court has in discharging its duty to uphold the law and to do justice without fear and favour.

I quote the words of  Lord Hewart in Rex v Sussex Justices, where the learned law lord observed that “A long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done but should undoubtedly and manifestly be seen to be done”. What happened in 1988 had shown that justice was not seen to be done and it is doubtful whether justice was done in the first place. And I believe that everyone who indulges themselves in legal world, be it lawyers or judges or law lecturers or law undergraduates like me, and even those who are not in the legal community, are eager to see the judiciary to be put at its proper place, as it was before the 1988 judicial crisis.