02 September, 2008

Dr M and "THE SO-CALLED EMINENT PERSONS PANEL"

1.Suddenly, in the aftermath of the disastrous Permatang Pauh by-election an announcement was made that a panel of retired judges from India and Pakistan and lawyers from Australia and Malaysia had been set up to review the 1988 judicial crisis in Malaysia.

2. The Panel was set up in August 2007. Yet until now there had been no news about it and its work. Now we are given its report mainly to blame me for what it termed Malaysian Judicial Crisis and the removal of Tun Salleh Abas as Lord President of the Malaysian Courts in 1988.

3. This is a new idea by the Bar Council to invalidate the findings of the Tribunals set up according to the Constitution of Malaysia, the Supreme Law of Malaysia. It is a negation of the rule of law and a slap in the face for the Malaysian King, the Yang di-Pertuan Agong.

4. It was the Agong who complained against Tun Salleh for writing two letters, one to complain about the noise made in repairing the Agong's residence and one alleging that the then Prime Minister was undermining the independence of the judiciary. Both letters were extended to all the Rulers which the Agong regarded as putting pressure on him. He found the letters offensive and against the Malay custom in which the customary thing to do was to have an audience with his Majesty and to make verbal complaints. The letters could follow but should be to him alone. He then requested me as PM to remove Tun Salleh as Lord President.

5. In keeping with the provisions of the Constitution a Tribunal was set up. But Tun Salleh tried to stop the Tribunal from doing its work and reporting to the King.

6. Now the Bar Council is resorting to extra-legal means to vilify me. If it can set up panels to nullify the findings of a properly constituted Tribunal then everyone should have a right to set up panels to negate the findings of the Malaysian courts, Tribunals and Commissions. There is no need to appeal to the higher courts set up for the purpose of hearing appeals against the decisions of lower courts. It should be noted that Tun Salleh had not resorted to the courts over the findings of the Tribunal.

7. Is this what we call the rule of law which the Bar is said to advocate? If you cannot get the judgment you want in a proper court, then set up your own court and get the decision you want. But do it quietly in case the decision, despite your choice of panel members, did not decide in your favour. The whole thing stinks of political skulduggery - an attempt to get at someone and to seek revenge for some imagined wrong done in my past.

8. There seems to be a pattern here. First we have a Royal Commission set up to find that I had been influenced in my choice of judges. Then we have Justice Chin, secure in his court accusing me of threatening to sack judges. And now this private and mysterious court to blame me for the "Judicial Crisis" of 1988.

9. I wonder what else will be coming. The President of the Bar Council is very pally with the de-facto Law Minister and the Prime Minister. Even the dinner given by the Bar is paid by the Government.

10. If by these vilifications they think I would stop criticising this corrupt government and its allies then they are wrong. I am not intimidated.

11. As a matter of curiosity, perhaps the Bar Council would like to enlighten the public regarding the cost of the panel, who paid for it and how much did each member get? Or is this another secret of a secretive Bar and its shenanigans.

(Taken from chedet )


Panel of Eminent Persons' Report on the 1988 Judicial Crisis in Malaysia


Almost 20 years ago, the Lord President Tun Dato’ Haji Mohamed Salleh bin Abas and Supreme Court judges the late Tan Sri Datuk Wan Suleiman bin Pawan Teh and Datuk George Edward Seah were suspended and subsequently dismissed by two separate Tribunals set up under Article 125(3) of the Federal Constitution. Three other Supreme Court judges, the late Tan Sri Dato’ Eusoffe Abdoolcader, Tan Sri Dato’ Wan Hamzah and Tan Sri Dato’ Hj. Mohd Azmi Kamaruddin were suspended but reinstated by the Second Tribunal.

The Panel was comprised the following:

(1) The Hon’ble Mr. Justice (Retd.) J.S. Verma, former Chief Justice of India, who chaired the Panel;

(2) The Hon’ble Mr. Justice (Retd.) Fakhruddin G. Ebrahim, former Judge of the Supreme Court of Pakistan;

(3) Dr. Ms. Asma Jahangir, an advocate of the Supreme Court of Pakistan and the UN Special Rapporteur on Freedom of Religion or Belief;

(4) Tan Sri Dato’ Dr. Abdul Aziz bin Abdul Rahman, a senior legal practitioner from Malaysia;

(5) Dr. Gordon Hughes, a senior legal practitioner from Australia and former LAWASIA President; and

(6) Dato’ Bill Davidson, a senior legal practitioner from Malaysia.

The Panel was constituted in August 2007 and first met on 21st September 2007. The report of the Panel was delivered to the Bar Council on 26th July 2008.

Although the Panel had a wide scope of review, it chose to confine itself to the material that was available to the two Tribunals at the time, to ascertain whether the findings and conclusions reached by the Tribunals were justified and appropriate.

Having reviewed the facts and circumstances on this basis, the Panel concluded that the composition of the Tribunals, the process adopted by them, and the findings and conclusions arrived at against the Lord President, Tun Salleh, and the two Supreme Court judges, Tan Sri Wan Suleiman and Datuk George Seah, as well as their recommendation for removal of the Lord President and the two judges, were not justified, and as a consequence, the removal of Tun Salleh, Tan Sri Wan Suleiman and Datuk George Seah from their offices was unconstitutional and non est.

The Panel found that there was no cogent material available to frame a triable charge against Tun Salleh Abas, and that a prima facie case had not been made out against him before the First Tribunal. The Panel also found that not only was Tun Sallah Abas innocent of the charges against him, he had been performing his constitutional duty to uphold and protect the doctrine of separation of powers and the rule of law.

In respect of Tan Sri Wan Suleiman and Dato’ George Seah, the Panel found that there were glaring inconsistencies between the enunciation of legal principles and their application to the facts by the Second Tribunal. The Panel also held that, the Second Tribunal, having negatived any improper motive on the part of both Tan Sri Wan Suleiman and Datuk George Seah, ought not to have then found them guilty of judicial misbehaviour warranting removal from judicial office.

Recognising that the 1988 Judicial Crisis was likely to have had an adverse impact on public perception of the Malaysian judiciary and its independence, the Panel concluded its report with a number of recommendations:

• That the wrong done to Tun Salleh Abas, Tan Sri Wan Suleiman and Datuk George Seah should be undone, as best and as early as possible.

• That the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region, 1997 and the Bangalore Principles of Judicial Conduct, 2002 should be treated as the guidelines for the independence of the judiciary and judicial accountability.

• That in the event of a similar situation arising in the future requiring invocation of Article 125(3), care must be taken in the composition of the future tribunal to ensure exclusion of any likely danger of bias.

• That care must also be taken to appoint members who are higher than, or at least equal in rank and hierarchy to the judge under inquiry in keeping with his dignity, if need be by appointing persons from any other part of the Commonwealth.

• That the procedure adopted by a future tribunal, unlike that of the First Tribunal, must ensure a full and fair opportunity to the concerned judge, to defend himself, including the right to be defended by a counsel of choice.

• That the separation of the judiciary from the executive is important for the independence of the judiciary, and therefore, there should be no semblance of executive dominance in the career and future prospects of a judge following appointment.

• That the procedure for removal of a judge must include the universally recognised norms of natural justice and principles of fair trial including (i) disassociation of the complainant from the selection process for tribunal members; (ii) absence of perceived conflict of interest or bias in tribunal members; (iii) right to demand a public hearing; (iv) requirement of proof beyond reasonable doubt; and (v) suspension of the judge pending inquiry only in exceptional circumstances.

The report was launched by President of the Malaysian Bar, Dato’ Ambiga Sreenevasan at the Bar Council Auditorium in the presence of Tun Salleh Abas, Tan Sri Azmi Kamaruddin and the family members of the late Tan Sri Wan Suleiman and the late Tan Sri Eusoffe Abdoolcader.

Also present were Tuan Haji Sulaiman Abdullah, as representative of the International Bar Association’s Human Rights Institute, Mr. Mah Weng Kwai, President of LAWASIA, Tan Sri Ramon Navaratnam, President of Transparency International-Malaysia.

Dato’ Ambiga explained the Bar Council’s reasons behind the setting up of the Panel.

Dato’ Ambiga acknowledged that the ex-gratia payments by the Government to the Judges and their families that was announced in April 2008 would have gone a long way towards compensating these Judges for their pain and suffering, but it nevertheless left the record against them uncorrected.

“We seek no punishment. We seek a correction of the record that now stands against these innocent Judges. We seek closure for these respected Judges. We seek closure for our nation.”

Dato’ Ambiga further added that the Panel’s report has the ability not only to set the record straight, but is also a testament to the fact that unjust decisions are always open to scrutiny and a reminder to all that such acts must never be allowed to happen again.

(Taken from malaysianbar.org.my)

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