The face of a man

Param, ex-Bar Council Chief

Who watched our Judiciary being torn to shreds during the 1988 Judicial Crisis in Malaysia. Full interview below.

I never really realised the damages until I read this article.

From Malaysiakini: Q&A: Changes have to come soon or else …

The events which unraveled in 1998 are etched in the memory of many, including former Malaysian Bar president Param Cumaraswamy who has never tired of campaigning for an independent judiciary.

To mark the 20th anniversary of the judiciary crisis, Malaysiakini taps into the mental archives of the former United Nations special rapporteur on the independence of judges and lawyers.

Describing himself as an “optimistic fellow,” Param said he has faith that changes are just around the corner.

During the interview, he related what transpired during that ‘dark period’ and how judges had feared former premier Dr Mahathir Mohamad.

He also spoke on the downside of the ex-gratia payment.

Below are some excerpts from the interview.

What was your role during the events leading up to the judicial crisis?

Param: The Bar Council directed me to lead the delegation to see (judge and next in line to be Lord President) Hamid Omar because Raja Aziz Addruse was president of the Bar and also acting for (then Lord President) Tun Salleh Abas so it was not proper for him to see Hamid which is quite correct. So I led the delegation as immediate past president with three other lawyers. I went to see Hamid.

At the meeting in his chambers, and for that matter, Hamid was a very hospitable man. So immediately he accommodated the request I made to see him. I told him what I have heard and he was quite surprised that we even knew the names (of the tribunal panel) and made a remark that he himself didn’t know these things.

So I said to him, “we are concerned that if you are appointed and you chair the tribunal it will not look good for our judiciary because you are the next in line for the office of the LP (lord president) and you are party to the letter (about) the meeting which agreed to Salleh in writing a letter to the king.” There will be a conflict of interest.

Hamid made a startling remark. He said, “Param, I’ve been very harsh, we’re going through some harsh times, I’m sorry if you think what I’m suggesting is quite harsh.” Then he said something that is most shocking. He said, “If I don’t accept the appointment, I will be sacked. If I’m sacked, will you or the Bar Council compensate the loss of my remuneration?”

I said, “I am most surprised that such remarks are coming from you as chief justice. You and I know that the King is a constitutional monarch and he acts on advice, how can you say he will sack you?” He said, “Oh you don’t know him. If you want, you go and tell him. I will buy you dinner.” That’s all he said.

Of course my immediate reaction was firstly, it wasn’t the King that he was afraid of. He knows very well under the constitution he cannot be sacked by the King. Secondly, what he was worried about was (then premier Dr) Mahathir (Mohamad). At that point in time, I also knew that Salleh won’t have the slightest chance before the tribunal because there was already a chairman who was afraid of being sacked.

The Bar Council applied to the court for a order of prohibition against the tribunal and Justice Ajaib Singh was hearing the matter. During this period, there were some judges that were very frightened already. One judge took leave so he would not be called upon to hear any cases and another judge felt that if he gave the wrong order, he would be sacked.

So there was a lot of fear among some judges. We applied for this prohibition order against the tribunal which was going at a very fast speed, sitting in Parliament house. The judge was pussyfooting, delaying and all that. As a result we made that application in the Supreme Court and the five judges who heard it on that Saturday morning where the (court) doors were closed and the seal was hidden – all that happened. As a result of that order made by the Supreme Court that day, all five judges were suspended on the advice of Hamid.

When another tribunal was set up, Hashim Yeop Sani who was deputy chief justice was asked to preside that tribunal. At the beginning of the hearing, there were objections against Hashim because of his involvement in the scenario then. Hashim recused himself. He disqualified himself. He advised the King and the King never sacked him.

Hamid’s fear was totally unfounded. So he was afraid of something else, it must have been Mahathir then.

Tell us more about the Bar Council dinner when you made your farewell speech.

The Speaker of Dewan Rakyat Zahir Haji Ismail and the Inspector-General of Police Hanif Omar were present at that Bar dinner. I was very critical of the conduct of Mahathir and the conduct of MPs who sat in Parliament and passed that amendment to Article 121 and 145. I assured the members and all the judges present that the Bar Council will not let this go by without a fight. At that time what I said was we will challenge the amendments before the courts.

Little did we realise that soon after that, Salleh who was also present at that dinner would be suspended and sacked thereafter. If you count the judges, it so happened in the then composition in the Supreme Court, these were the six independent judges. You remove the six, what happens to our judiciary? This is what Mahathir was so afraid of because when Salleh convened a full bench to hear the Umno appeal. Mahathir shivered, that he would no longer be prime minister.

What actions are needed to restore the judiciary’s independence?

We need to address, we must reinstate the pre-1988 Article 121 and restore the judicial power fo the courts. It is also in light of a surprising decision last year, that the doctrine of separation of powers is a political and not a legal doctrine. It is important to entrench in the constitution and make it clear that the judiciary is independent of the other two powers.

Then we need to provide for a judicial appointments commission (JAC) which will also look into judicial promotions. We also require a commission to deal with discipline of the judiciary so as to see that the judiciary is not only independent, it is also accountable for the conduct of the members of the judiciary.

We need to address the office of the Attorney-General. We need to go back to the previous provision in the constitution to make the AG independent and he’ll be accountable to Parliament and the day-to-day administration of prosecutions should be handled by the office of a director of public prosecutions. The AG should not be involved in the day-to-day work of the prosecutions.

Of course the police who do the initial investigations, we’ve got to see that they also function effectively to give the support that the judiciary requires. Hence, we need to look into the recommendations of the Royal Police Commission especially the implementation of the IPCMC (Independent Police Complaints and Misconduct Commission). These are the areas that we need to address in a holistic manner, not just address the judiciary per se or Article 121 or setting up a JAC.

One of the suspended judges Azmi Kamaruddin said a truth commission should be set up because the key players in the crisis are all still alive. What are your views?

I’m sorry to say this. I have some concern about anything going back now with regards to investigating what happened then. These judges having collected an ex-gratia payment, they will have difficulties now calling for the reopening. You see an ex-gratia payment is always thought of as without admitting liability for something, you’ve done a good job, we respect you all, something happened but never mind, we don’t want to go into all that. Here we are, we’ll give you something ex-gratia, take it and you’re expected to keep quiet.

Sad to say I was quite surprised to read what (de facto law minister) Zaid Ibrahim said in Parliament, that it was the judges who wanted the amount to be kept confidential. Why hide? This is public funds, paid from the government. What are these judges so afraid of to let the people know what they got. By accepting it, I think they are now precluded from asking for any inquiry or commission into this matter from now on.

Others like the Bar Council can still do so but the six judges have compromised. It is not for this government to admit liability because this happened 20 years ago. The people who were responsible then are still alive – Mahathir, Hamid and Abu Talib. These people should be hauled up to admit that they perpetrated the entire machinery then to undermine judicial independence in this country. They should say sorry, not this government.

What are your views on the current political will of the government in trying to restore the glory in the judiciary?

I’m really surprised that the Cabinet is not unanimous on this, there is a division of opinion with regards to amending 121 and the JAC. Even then, I feel it is surprising because some members of the cabinet are senior lawyers. I would expect them to stand up firm.

I can tell you about (Home Minister) Syed Hamid Albar. He was a member of the Bar in 1988 when we took the resolutions to boycott Hamid Omar in an EGM (extraordinary general meeting) with the highest turnout ever that time. Syed Hamid was present, he had both his hands up, people noticed that.

I think he should be reminded of the great support he gave to the Malaysian Bar when we took that position against Mahathir’s attack on the judiciary and Hamid’s involvement in the tribunal. He quite rightly supported us then and now he should support the reforms we want to put in place. So was Matthias Chang where he made a lot of noise. But these are the people that took the correct position then but are now unable to consistently stand up.

How do you feel your efforts in campaigning for judicial reforms in the last 20 years have been?

Sometimes on reflection I always ask myself how we managed to go though (this). During that period, some of the rulers were with us. They were very concerned with the conduct of the King at that time. Obviously, they all knew that the King was made use of by Mahathir. What surprised me was that things were allowed to deteriorate because Mahathir did not want to have an independent judiciary and hence he was not the least concerned about the integrity of a constitutional government.

What do you think about Zaid Ibrahim’s efforts so far?

I think he’s gone about it the wrong way. I think he took this issue without giving careful consideration. I don’t want to get into the controversy. One has to look back at the background itself. What was his position over the 1988 (crisis)? How he attacked me over the Hamid resolution. He was protective and when we refused to lift that resolution, how critical he was about us. He called for the government to do away with the Bar Council and set up an academy.

Of course he has apologised to Salleh and all that, that’s why the consistency isn’t there. Of course people change, fine but I think it was not a well conceived approach that he took. And this thing about an apology, I think he took a very simplistic approach.

What do you think the judiciary will be like in 20 years time from now?

I’ve always been an optimistic fellow but people think I am one of the last romanticists left in this world that I still feel with the current public concerns and with the current internet exposure, where people have access to information more than those days, the changes will have to come about. If these changes are not addressed soon, people are going to come out onto the streets. The signs are already there.

People are not going to be afraid of the ISA (Internal Security Act) anymore. People are going to push for change and I think the internet has brought about many improvements. The government will have to respond to public aspirations but the transition is going to be difficult.