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Panel of Eminent Persons' Report on the 1988 Judicial Crisis in Malaysia 2 Sep 2008 12:00 am

• Click here to download the Report (English)

• Click here to download the Report (Malay)

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.

On 29th August 2008, the Bar Council, together with the International Bar Association’s Human Rights Institute, LAWASIA and Transparency International–Malaysia released a report of a Panel of Eminent Persons which reviewed the findings of the two Tribunals.

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.

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