A Tribute to a Great Malaysian Judge
- at the public meeting “Tan Sri Harun Hashim – A Great Malaysian Judge” held by the DAP
by Dato' Param Cumaraswamy
(Petaling Jaya, Wednesday): The hallmarks of a good judge are courage, independence, impartiality and integrity. The late Tan Sri Harun Hashim, affectionately known to his friends as Harun, had all these qualities and expressed them admirably since he was elevated to the Bench in 1971.
Administration of justice in any democracy not only requires an independent judiciary but to sustain that independence it requires an independent and fearless Bar and an incorruptible office of the public prosecutor. Harun always asserted this and in particular the need for such a Bar.
His courage and independence was seen by the nation when he made that momentous decision on February 4, 1987 when he declared UMNO an unlawful society. Though it stunned the nation yet the decision was then seen as the highest watermark of judicial independence in Malaysia.
However, that decision drew the wrath of the powers that be, particularly Dato’ Seri Dr (now Tun) Mahathir Mohamad. It also saw the beginning of the end of judicial independence in Malaysia.
Then on November 23, 1986, Harun dismissed Lim Kit Siang’s application to cite Dr Mahathir for contempt of court for remarks made by Dr Mahahtir in an interview published in the Time magazine in the same month where Dr Mahathir was reported to have criticized the court over judicial interpretations of legislation. In dismissing the application, Harun said, amongst others, in referring to Dr Mahathir’s remarks published in the magazine,
“The statement is an expression of Dr Mahahtir’s dilemma that the courts are not able to express the intention of the Government in their decision because of faulty laws made by Parliament.”
He went on and said:
“Dr Mahathir appeared ‘confused’ about the separation of powers in a democracy and the function of the court within this system.”
The next day the newspapers which were free then splashed Harun’s remarks in the front pages. The headline in the Star was “Mahathir’s Dilemma”. That of course infuriated Dr Mahathir.
Then there were two seminars in Kuala Lumpur in August/September 1987 to commemorate the 30th anniversary of independence. At both these seminars there was a call for the review of the implementation of the Consitutiton. Sultan Azlan Shah who officiated one, too called for review. In one of these seminars Harun suggested that the Senate be revamped to include Menteri Besars, Assembly Speakers and 20 elected members so that it could “play a proper role”. Dr Mahathir responded in the media accusing the judges that they were encroaching into other branches of the Government and voiced their view on politics outside the court. At first he did not name a particular judge. However, on Sept 8, 1987, the media reported statements of Dr Mahathir that Harun should not have commented on the Constitution. He went on to say that it was “against the system of parliamentary democracy” and would “result in people losing confidence in the judiciary”.
As President of the Bar Council, I responded to Dr Mahathir’s remarks in a press statement, I said, amongst others, it was part of the traditional role of judges to speak up on matters related to the law, Constitution and administration of justice – in and out of courts. I went on and said “far from the people losing confidence in the judiciary as alleged by the Prime Minister, confidence in the entire system of Government would be enhanced and held in high esteem within and outside the country – if the Executive remained respectful of the courage and independence of judges.”
It was obvious that by them Dr Mahathir was picking on Harun. The attacks went on. On Oct. 3, 1987 Dr Mahathir was reported to have said that “a branch of service such as the police, army, civil service or the judiciary should not interfere with the jurisdiction of another.”
Sometime in mid October 1987, upon my return from Perth and Christchurch, my colleagues in the Bar Council told me that Harun was under pressure. The following day I called Harun and met him at lunch in the Selangor Club. It was then that he confided in me that he was contemplating resigning from his judicial office. Though I was not surprised yet I adviced him that he should not. I assured him that the Bar Council will stand by him against all the verbal attacks against him and the judicial institution.
The following day I called for a press conference and once again responded to Dr Mahahtir’s verbal attacks. In the statement, amongst others, I expressed how the Malaysian judiciary was respected overseas. I went on to say that Dr Mahathir’s remarks had not done any good to the nation. I added that it was for the people to see that our judges remained subordinate to no one except the law and the constitution. That the Bar Council would ensure the protection of the independence of judges and that there should be no intimidation of judges from any quarter. I further added that remarks implying that the judiciary was like any other government department indicated the desire to accumulate power in one hand. Again, the then free press reported my statement in full.
Shortly after that Harun attended a Bar function. When he arrived that evening, a senior member of the Bar received him and asked how he, Harun, was. I heard Harun’s reply” “With the full support of Bar how can I be not well?”
Harun was a great defender of an independent and fearless bar. He always felt that the Bar, even more than the judiciary, should be in the frontline in defense of human rights.
Soon after he was appointed a judge at the first Malaysian Law Conference in July 1971, I called for the setting up of a watchdog body to protect civil liberties in Malaysia, I had in mind an NGO. I suggested this after the presentation of a paper by Dato’ Athi Nahappan on “Fundamental Liberties”. Harun was flabbergasted. He felt that if such a body was formed by lawyers then they would be seen as having taken a vote of no confidence in the Bar itself. He then said: “I feel the Bar still has the right to uphold the rights of the individual and his fundamental rights.”
Amidst the judicial crisis in 1988, Harun was promoted to the Supreme Court (now the Federal Court). This surprised many particularly me as he earlier wanted to resign. Some felt that he may have compromised, He was conscious of such a perception in the minds of many, particularly of the Bar. Later at a sitting of the Supreme Court he openly said to the Bar “Don’t think I have changed. I am with you.”
Throughout his tenure on the Bench he never abused his judicial power. He never cited any lawyers, for that matter, anyone for contempt of court. As said earlier he spared Dr Mahathir when he dismissed Kit Siang’s application. He certainly was not trigger happy in using such coercive powers as some judges of whom we heard of in the last few years. In later years in conversations he was critical of these judges.
He was a man who would readily accept another’s point of view and even concede openly and withdraw his own. He will never hesitate to say sorry, if he was shown to be wrong. That is a great human virtue. Not seen or heard often. His integrity was beyond question. For that reason he was awarded the national integrity award by Transparency International Malaysia two years ago together with Tan Sri Ahmad Nordin.
He brought prestige and honour to the Malaysian judiciary in the eighties. He was a great inspiration to many who knew him well including myself. He was not just a good and great judge. He was also a good and great human being.
I extend to his family my deepest condolence.
* Dato Param Cumaraswamy, former UN Special Rapporteur and former Bar Council Chairman