• 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.