Greatest tribute to Harun Hashim is to restore independence of judiciary and the separation of powers  between the executive and the judiciary to their  finest hour in 1986-88 as admitted by Rais Yatim in “Freedom under Executive Power in Malaysia”

at the public meeting “Tan Sri Harun Hashim – A Great Malaysian Judge”
by Lim Kit Siang

(Petaling JayaWednesday): We gather tonight to pay tribute to a great Malaysian judge – the late Tan Sri Harun Hashim. 

In October 1987, Harun was in the eye of a brewing constitutional storm.  On 10th October 1987, in a speech to the Old Xavierians’ Association in Penang on “Some Reflections on 30 years of Malaysian Nationhood”, I had publicly  warned of an impending constitutional crisis when referring  to intense  speculations  that the Executive was preparing an assault on the judiciary in Parliament meeting  later the same month, whether by way of an unprecedented  impeachment motion against a High Court judge or an amendment to the Constitution for an Executive usurpation of the powers of the Judiciary. 

The judge referred to was the late Harun Hashim.   In the event, the showdown with the judiciary  at the time was momentarily averted, as there was no impeachment motion against Harun or amendment to the Constituton in the budget session of Parliament at the end of 1987.  Instead, some two weeks later, there was the Operation Lalang mass arrests with  Karpal and myself among some 106 others detained under the Internal Security Act. 

When the judicial crisis finally burst open with its awesome  consequences  some eight months later, the then  Lord President Tun Salleh Abas had replaced Harun as the bete noire of Executive attacks, resulting in the sacking of Salleh and two Supreme Court judges, Tan Sri Wan Suleiman Pawanteh and Datuk George Seah and the first judicial crisis in the nation’s history. 

The late Harun played a leading role in a period which had been described by the current de facto Law Minister Datuk Dr. Rais Yatim in his book Freedom under Executive Power in Malaysia  as follows: 

“The period 1986-1989 could perhaps be summarized to be the finest hour of the Malaysian Judiciary for it was during this short period that it handed down those few judgments that gave freedom a boost. These judgments did not go down well with the Prime Minister.  His dissatisfaction with the judiciary came into sharp focus when he was clearly stung by the various decisions of the court”.  (p. 318). 

As Rais pointed out in his doctoral study, there were three things  that had in particular irked the Prime Minister of the time –  the cases that had gone against the government, the extra-judicial statements made by certain judges (in particular the late Harun) at official functions like seminars and forums and their judicial pronouncements in some of the cases.  The offending cases included Berthelsen v. Director General of Immigration, Lim Kit Siang v. Dato’ Seri Dr. Mahathir Mohamed, Lim Kit Siang v. UEM & Government of Malaysia, Karpal Singh v. Menteri Hal Ehwal Dalam Negeri, Aliran v. Minister of Home Affairs and of course the UMNO 11 case.  And offending extra-judicial statements were innocuous proposals like the suggestion by the late Harun at an academic forum in a local university  that the Senate as the second chamber of Parliament would be more effective if its membership was reconstituted.  

In his May 18, 2003 column “Benchmark” in the New Straits Times, the late Harun wrote:“For years, before and after Independence, Malaysia enjoyed the reputation of having an established independent, impartial  and incorruptible judiciary”. 

Rais had fully agreed with this judgment when he said  in his book: 

“Since merdeka the judiciary had by and large enjoyed its share of independence and none of the previous three Prime Ministers, who had incidentally received their legal training in England, as much as nudged the judiciary.” (p. 307) 

All this had however been destroyed by the first judicial crisis in 1988. As Rais had concluded: 

“The whole episode of removing the Lord President was based on the desire of the executive to have an untrammeled say in the direction the judiciary should take in future. The message is clear: Judges are only allowed to interpret the law in the way that the executive had determined through the language passed by Parliament. … Needless to say that with this state of affairs at hand the independence of the judiciary may be seen as being merely illusory.  (p 360).” 

And most revealingly, Rais added: 

“Under the present circumstances, however, the Malaysian people by way of a consistently controlled media are being led to accept the view that there has been no demise of the doctrine of separation of powers and that the judiciary is as such unscathed in all respects. How true it is of the truism: what one does not know one does not miss. But the legal fraternity in particular knows the horrendous reality that the crisis has brought upon the rule of law in Malaysia.” (p.379) 

This was before the further crisis after crisis of the judiciary after the publication of Rais’ book in 1995, from all of which the country has not recovered – despite the appointment of two new Chief Justices in the past three years. 

In his first maiden official speech in Parliament on Monday, the new Prime Minister Datuk Seri Abdullah Ahmad Badawi pledged respect of the separation of powers between the legislature, the executive and the judiciary as it is important to maintain the checks and balances needed to prevent abuses of power. 

The question is whether the separation of powers between the executive and the judiciary  that the new Prime Minister had committed  himself to respect and uphold  is the separation in “the finest hour of the Malaysian Judiciary” in 1986-1988 before it suffered grievous and repeated  Executive onslaughts and usurpation, or the very pale shadow of an independent judiciary today! 

I believe that the greatest tribute Malaysians can pay to the late Harun as a great Malaysian judge is to restore the independence of judiciary and the separation of powers between the the executive and the judiciary to their “finest hour” in 1986-88 as admitted by Rais in “Freedom under Executive Power in Malaysia”, where there was  unalloyed national and international confidence in the independence, impartiality, integrity and professionalism of a truly independent judiciary and a just rule of law in Malaysia.

The late Harun’s  life intersected  three  important national sectors  which have currently become  the focus of  public  attention as to whether there could be material and meaningful changes under the new Prime Minister, as apart from an independent judiciary and the restoration of  separation of powers are the two other important issues of  anti-corruption and human rights.  In his speech in Parliament on Monday to outline and clarify the principles of his administration, Abdullah gave importance  to the war against corruption but ominously omitted reference or mention of human rights. 

Let me just touch briefly on these two other legacies of Harun. 

Harun had been the most famous director-general of the Anti-Corruption Agency (ACA) in its 36-year history  since its establishment in 1967 – its standing  never higher when under Harun but  never lower than at present. This is both a compliment to Harun and an indictment of  the  present ACA.  

We have now a new Prime Minister who has the reputation of “Mr. Clean”.

In Parliament on Monday, Abdullah  pledged an administration that is “clean, incorruptible, modest and beyond suspicion” and condemned corruption as “an odious crime”.

The  latest  Transparency International’s  Corruption Perception Index (CPI) 2003, which showed that Malaysia slipped from last year’s 33rd placing to 37th position although with an improvement in the CPI score which is still lower than previous scores,  is the latest proof that 46 years after Independence, the time has come for an  all-out war against corruption to create a new political culture of public integrity with zero tolerance for corruption, and that there is enough of  verbal  exhortations and beautiful speeches.

Malaysia does not lack anti-corruption laws, infrastructure, personnel and expertise to make the quantum leap to be among  the world’s ten least corrupt   countries as what is sorely lacking is the political will and stamina.

The late  Harun’s memory will be honoured with a declaration of a national  objective to be ranked among the world’s ten  least corrupt nations within a decade. 

One of Harun’s last public duties was Suhakam Deputy Chairman.  I do not always see eye to eye with Harun on human rights, but it is undoubtedly close to his heart.  In his last newspaper column, Harun wrote that human rights is not really a Western invention – totally at variance with a recent  speech which became the centre of an international furore which alleged among other things, that human rights  and democracy are Jewish inventions to perpetuate Jewish world rule. 

Suhakam, the Human Rights Commission, has not lived up to the hopes and expectations of the promoters and defenders of human rights in Malaysia. 

A tribute to Harun would not be complete without expressing the hope that the government and nation should have a completely new approach to human rights in general and Suhakam in particular to ensure that the fundamental liberties entrenched in the Malaysian Constitution are given real meaning and not abridged and truncated by oppressive and draconian laws, like the Internal Security Act, the Printing Presses and Publications Act, the Universities and University  Colleges Act, the Police Act, the Official Secrets Act and the Sedition Act.


* Lim Kit Siang, DAP National Chairman