Call for a nation-wide campaign to petition for a Royal Commission of Inquiry on judicial reforms to restore public confidence in the independence, impartiality and integrity of the judiciary, including revisiting the 1988 judicial crisis and subsequent judicial scandals

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Speech by
by Lim Kit Siang  
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(Selangor Chinese Assembly Hall, Monday) :  Seventeen years ago in October 1989, a year after the 1988 judicial crisis, Tun Suffian, former Lord President,  said when launching the book, May Day for Justice:

“What happened to Tun Salleh and our Supreme Court Judges has shown that what took generations to build up can be destroyed in one day and will take many generations to rebuild.’

More than a decade later, when speaking in honour of the late Justice Tan Sri Wan Sulaiman (one of the victims of the 1988 Judicial Crisis) on 10^th March 2000,  Tun Suffian said:

“I had predicted that our judiciary would take a whole generation to recover from the assault.  Now that more than 12 years have elapsed, I doubt if the judiciary would recover in a generation from today.”

The question we have to ponder   tonight is whether we  want Tun Suffian to be right where the country has  to wait for another generation before we can see the full restoration of public confidence in the independence, impartiality, accountability and integrity of the system of justice or whether we should  take immediate action now to re-establish a truly independent judiciary and a just rule of law and not wait for another generation.

Although former Lord President Tun Salleh Abas and former Supreme Court judges Tan Sri Wan Sulaiman and Datuk George Seah were  the three major victims of 1988 judicial crisis, they were  not the only ones as the Malaysian people and country were also the casualties of the injustices perpetrated in the 1988 judicial crisis.

The three judges suffered personal wrongs and dishonours which should be put right, but the country suffered the destruction of an independent institution which was  one of the three pillars of the doctrine of separation of powers for good democratic governance.

The issues before us are not just questions of personal integrity and honour  but also  concern fundamental principles of good governance; judicial independence, impartiality and integrity; public confidence in the system of justice and the doctrine of the separation of powers to check arbitrary and authoritarian rule.

There is considerable unanimity in the view  that Malaysia’s crisis of confidence in the system of justice started only in the latter part of the 80s as the nation had a very independent judiciary in the first three decades of independent nationhood under the first three Prime Ministers, Tunku Abdul Rahman, Tun Razak and Tun Hussein Onn – who clearly had a greater appreciation of the importance of an independent judiciary.

I am reminded of this comment by former Deputy Prime Minister, Tun Musa Hitam in his speech to the Foreign Correspondents Club, Hong Kong in 1988:

“[The Prime Minister] was continually upset with the judiciary. One of his favourite slogans, privately to cabinet ministers, the [political party Umno’s] Supreme Council members: “Hang the lawyers, hang the judges”.  Believe it or not, he has been saying this for years..and it became quite a joke.  But underlying that joke is a state of mind, of frustration and anger with the judiciary. Again, I remember telling him that either you have an independent judiciary or you don’t…]

We do not have to refer to the first international indictment of the system of justice put out by the Lawyers Committee for Human Rights in its 1989 report entitled “Malaysia: Assault on the Judiciary”, which documented the government attacks on judicial independence from 1986-1989, culminating in the travesties of the two kangaroo-tribunals over the Lord President and five Supreme Court judges, ending in the sacking of the Lord President and two Supreme Court judges.

We need only refer to the Cabinet colleague of Datuk Seri Nazri Aziz,  Minister in the Prime Minister’s Department, who is a panelist at this public forum. I am referring of course to Datuk Dr. Rais Yatim, one of  his predecessors in charge of the portfolio of law and justice, and  his 1995 book “Freedom under Executive Power in Malaysia – A Study of Executive Supremacy”.

Rais’ conclusion in his book was that former Prime Minister, Tun Dr. Mahathir Mohamad had in the 1988 judicial crisis, destroyed the independence of the judiciary which he described as “merely illusory”, “reduced to being a mere namesake” and the doctrine of separation of powers “perfunctory”.

The 1988 judicial crisis, and the injustices done to Tun Salleh Abas, the late Tan Sri Wan Suleiman and Datuk George Seah must be  rectified.  Even more important, the maiming and mangling of the system of justice which started from that date, claiming many victims in the ensuing decade and more – like Param Cumaraswamy, Lim Guan Eng, Irene Fernandez, Anwar Ibrahim and Mohd Ezam – must be ended.

In 2000, the Malaysian judiciary  was again the subject of another scathing international indictment in the report “Justice in Jeopardy: Malaysia 2000”, tracing the relentless deterioration of the system of justice and the marginalization of the fundamental rights of Malaysians.

Let me give two personal accounts to throw light on  the second judicial crisis of confidence which plunged the Malaysian judiciary from  being acknowledged as among  the world’s  most prestigious systems to that of a “rogue” status, where judges felt why to identify themselves as coming from Malaysia in international conferences:

• In October 1999, I sought to move in Parliament  a substantive motion of no confidence in the then Chief Justice, Tun  Eusuff Chin with regard to his judicial impropriety and misconduct while in office arising from his New Zealand holiday with a corporate lawyer in December 1994.  It is most ironical that Tun Eusuff should be in the thick of an ethical crisis when he was the one who had introduced the Judges’ Code of Ethics in December 1994  to uphold judicial standards of conduct so as to secure public confidence in the dignity, integrity and independence of the judicial office. 

• In January 2000, both former Lord Presidents Tun Suffian and Tun Salleh Abas advised me that although they agreed that the Tenth Parliament had been convened unconstitutionally on December 20, 1999 in disregard of the  provisions of the Federal Constitution, which could infect all laws and businesses transacted by the tenth Parliament with illegality and unconstitutionality, they advised against taking the matter to court as they had no confidence in the system of justice in the country. Imagine two former Lord Presidents having no confidence in the system of justice which they had once presided over!

The present government continues to suffer from a serious denial syndrome  in  refusing to acknowledge of the continuing crisis of confidence in the system of justice in the country.

When Tun Mohamed Dzaiddin  Abdullah became Chief Justice in December 2000, he admitted the  "unpalatable fact that public confidence in the judiciary has eroded in the last few years"  and declared his mission  was to "bring the judiciary back to its past glories" .

Dzaiddin stopped the rot in the system of justice of the past 14 years but he was unable to bring the judiciary “back to its past glories” through  judicial reforms involving structural and institutional changes such as concerning judicial appointments and promotions,  meritocracy, integrity, a meaningful Judges Code of Conduct involving post-retirement appointments, reversion to the original Article 121 of the Constitution to restore the inherent judicial powers of the judiciary, etc.to undo the ravages of the past 14 years and  fully restore public confidence in the judiciary.

The time has come for putting the system of justice back on  its proper footing again, not only to restore the judiciary to its pre-1988 position, but also to address the institutional defects highlighted by the 14-year judicial crises of confidence so that there could be no repetition of the judicial “black holes” of the past.

The government should break  from its denial complex and acknowledge

 that there is urgent need for far-reaching judicial reforms to fully restore public confidence in the independence, impartiality and integrity of the judiciary.

In the alternative, there should be  a nation-wide campaign to petition for  a Royal Commission of Inquiry  on judicial reforms to restore public confidence in the independence, impartiality and integrity of the judiciary, founded on  revisiting the 1988 judicial crisis and subsequent judicial scandals.

(11/09/2006)