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Freeing the judiciary

THE disclosure that former Lord President Tun Salleh Abas received RM5 million as ex-gratia from the government has stirred up some strong emotions among Malaysians. Many are already trying very hard to cope with the rising cost of living, no thanks to the government’s drastic fuel price increase. Fuel prices have dropped, but the cost of goods and services raised due to higher fuel prices has not.

Out of the RM10.5 million paid out, Salleh received the lion’s share. This is presumably because he was the highest-ranked judge and was perceived to be the targeted victim of the 1988 judicial crisis. Many would perhaps contend that even this amount is too cheap when compared with the value of his dignity.

So, Salleh today stands as a symbol for an independent judiciary. The legal circle continues to buzz with talk of restoring the judiciary to the freedom it enjoyed in its pre-1988 days. Apparently, the development of the judiciary was stunted in 1988 and did not move forward thereafter. Some may even argue that the judiciary has in fact regressed.

Is this a true reflection of the current state of affairs?

A quick perusal of some of the judgements of the supposedly independent, pre-1988 judiciary would be telling. Specifically, it would be interesting to look at the judgements of Salleh himself, who is now regarded as the epitome of the standards to which our judiciary should strive.


In Government of Malaysia v Lim Kit Siang, Salleh held that the government had no legal duty to consult or accept the views of any taxpayer or group of taxpayers. The government didn’t even need to hear objections. Mind you, the taxpayer involved in this case was no less than the opposition leader himself.

Yet, Salleh concluded that Lim had no standing to maintain his suit. Is it a surprise then that the government did not heed the Malaysian Bar’s objections when Salleh was dismissed? It is, after all, the position that was similarly held by Salleh himself.

(© Cory Thoman/Dreamstime)
In IGP [Inspector General Police] v Tan Sri Raja Khalid Raja Harun, Salleh held that the subjective test should be applied to the Internal Security Act (ISA). In other words, the court cannot require the police to prove the sufficiency of the reason for its belief that an ISA detainee has acted in a manner prejudical to the security of the country.

Interestingly, in this case, the High Court judge had earlier required for evidence to be disclosed to the court. The court decided that even if the evidence were disclosed confidentially on a need-to-know basis, it was essential for the court to be satisfied that the ISA arrest and detention was justified. Salleh apparently held the view that so long as the police were satisfied, the decision to arrest and detain someone without trial was lawful.

Why then does Salleh complain when decisions are made adversely against him and which go against his sense of justice? Does the ISA detainee not have the same sense of injustice when decisions are made without him being afforded the right to be heard or to defend himself?

In Malaysian Bar v Government of Malaysia, the Malaysian Bar attempted to challenge an amendment to the Legal Profession Act. The amendment now prohibits a lawyer of less than seven years’ standing from becoming a candidate of the Bar Council. The Malaysian Bar’s challenge was refused by Salleh.

According to Salleh’s logic, as long as every lawyer has the right to vote for candidates, they are adequately represented and need not stand for office themselves. Participative democracy, therefore, would not be one of Salleh’s strong points.       

In PP [Public Prosecutor] v Datuk Yap Peng, the Supreme Court was asked to rule on the question of whether the PP’s right to transfer cases is an exercise of judicial power. The court ruled in a 3-2 majority decision that it was. The minority held that the transfer was a mere administrative power and the PP can exercise the same without being subjected to the court’s review. Salleh was one of the two dissenting judges.

Moving on

The Sultan Abdul Samad building, which housed the Supreme
Court at the time of the 1988 judicial crisis that led to the firing of
Salleh Abas as Lord President (© Mohd Hafiz Noor Shams)
The above is only a sampling of the cases decided by Salleh, and in no way am I implying that he was biased or inadequate as a judge. The point is simply that although judges are required to decide in accordance with the law, on many occasions the decisions actually reflect the judge’s own mindset. After all, the law itself can be interpreted in diverse ways, and there is no lack of judicial precedents evidencing creative interpretations.

But if the above sampling indicates the mindset of the pre-1988 judges, symbolised by Salleh as the then-head of the judiciary, perhaps 1988 should not be the benchmark for the present judiciary. An independent judiciary would not be very helpful if it was not progressive at the same time. Also, it is part of the pledge of the Rukunegara for Malaysia to be united, fair, democratic, liberal, and progressive.

Of course, the pre-1988 judges lived in a different era, and to impose our present-day values on them would be anachronistic. Society has moved on, and so must the judiciary. We have a new set of political realities and a new chief justice sits in the Palace of Justice.

Salleh was wronged once, and much has been done to honour him. But it is time we all move on.

Chan Kheng Hoe is an advocate and solicitor cum mediator. He would love to tell you much more about himself, but alas, that is as much as is allowed by the Legal Profession (Publicity) Rules.

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One Response to “Freeing the judiciary”

  1. cch says:

    Hear, hear!

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