Published by Malaysia Now & Focus Malaysia, image from Malaysia Now.
The late Salleh Abas was indeed the greatest and most courageous son of Malaysia the country has ever had due to his steadfast belief in and his struggle for the independence of the judiciary. In honour of him, we must unfailingly uphold this doctrine of the independence of the judiciary against any compromise to it.
Four years after being the lord president (an office now known as chief justice), he was unceremoniously removed from the lofty position in 1988 for the most trivial of reasons: that he purportedly wrote to the then Yang di-Pertuan Agong, the Sultan of Johor, complaining to His Majesty of the noise from the renovation works carried out at the Istana, in addition to complaining about the then-prime minister Dr Mahathir Mohamed’s incessant attack on the judiciary.
On this basis, the Agong requested that Salleh be removed, according to Mahathir, thereby creating the most convenient and flimsy argument that it was not him who wanted to remove Salleh but the Agong.
It does not take a modicum of intelligence to conclude that even if what Mahathir said was true, it should not be the basis for the costly and wasteful act of convening a tribunal to remove him, as the complaints against him did not relate at all to any judicial wrongdoings.
However, the facts of the case then were:
• Salleh was suspended as lord president on May 26, 1988, three days after he had given instruction that the appeal case on the deregistration of Umno be heard by the full quorum of the Supreme Court;
• His instruction above was rescinded by the government on the same day he was suspended; and
• Mahathir told him in a face-to-face meeting on May 27, 1988 that Salleh was biased in the appeal case above.
All these proved beyond any doubt the interference of the executive in the affairs of the judiciary, thus compromising its independence.
Aliran, an NGO, has immortalised the face-to-face meeting on May 27 by publishing an article based on the account of Salleh of the meeting, which was republished on Jan 16.
After reading the article, I had no doubt that Salleh was the embodiment of the hadith in which the Prophet said the best jihad is to speak the truth in front of an oppressive ruler.
In a parliamentary democracy like Malaysia, what is the meaning of the independence of the judiciary? For most people, when we talk about the government, it is the prime minister and his Cabinet that are the most ubiquitous, when they are only one arm of the government – the executive.
The other two arms of the government are the judiciary led by the chief justice, and the legislative led by the speaker of Parliament. While the making of laws is the ambit of the legislative and executing the laws is the prerogative of the executive, interpreting the laws is the role and function of the judiciary.
So when we talk of a government, it actually refers to all three branches of the government that constitute THE government, and not just the executive. But of course, in a parliamentary democracy the head of the government is always the prime minister, so all due respect must be accorded to him in his capacity as the head of the government.
But despite this official capacity as the head of the government, the prime minister is only the first among equals as far as his relation with the chief justice and the speaker of Parliament is concerned, which implies he has no business interfering in the workings of the judiciary and legislative, other than ensuring the enforcement (execution) of the existing laws pertaining to these two arms of the government.
Ditto for the chief justice and the speaker of Parliament in not interfering with the workings of the executive other than ensuring that the enforcement of the law by the executive is in accordance with the judiciary’s interpretation of the constitution (for the chief justice) and the execution of the law is based on the statutes passed or revised by Parliament (for the speaker).
This is the meaning of not only the independence of the judiciary but also the independence of the executive and the legislative, where their respective independence interacts interdependently with one another, mutually resulting in a healthy check and balance for the good of the nation.
The one thing that binds all three branches of the government is the rule of law based on the constitution: the legislative is to make or amend laws that do not transgress the dictates of the constitution, the executive is to implement the laws in such a way that the do’s and don’ts of the constitution with regard to personal rights and freedom of the rakyat, inter alia, are not compromised, and the judiciary is to interpret the laws consistent with the letter and spirit of the constitution.
However, there is a dicey element here. Whereas the chief justice has nothing to do with the executive and the legislative in the sense that he is not a member of the executive or legislative, and so his relationship with the two is quite clear-cut, the relationship between the executive and the legislative is not as clear-cut.
This is because in a parliamentary democracy, the executive in the form of the prime minister and his Cabinet are more often than not members of the legislative as well by virtue of their election as MPs.
So, the prime minister can “interfere” in the conduct of the legislative affairs of the country, not in his capacity as chief executive of the nation, but as an MP duly elected by the people.
In this regard, it is indeed laudable that in advising the Agong to declare an emergency, Prime Minister Muhyiddin Yassin insisted the judiciary be left alone in its independence, but not so the legislative comprising the politicians who are the cause of the political instability at a time when the country is facing a high number of Covid-19 infections each day and the economy is still on a recovery trajectory.
Just see what they did during the first few days of emergency. Instead of coming up with a solid plan to help the government in its fight against the virus and for the recovery of the economy, the leader of the opposition was busy “instigating” MPs to write to the Agong to appeal against the emergency.
Meanwhile his youth chief is questioning the expenditure on three stadiums to be built that were approved by the prime minister, not so much because there is procedural irregularity, but because he questions the priority of spending that much money during a pandemic.
He should have the confidence in the prime minister’s wisdom that even during the pandemic and the current movement control order, construction activities which are under the essential sector have the multiplier potential of creating more jobs, thereby assisting in the recovery of the economy. The prime minister has to take the calculated risk of balancing lives and livelihoods.
There is an eerie deja vu here involving the politicking among politicians. In February last year, this politicking which resulted in a political crisis was precipitated by the Sheraton Move, which in turn had its genesis in the power struggle between Mahathir and Anwar Ibrahim over whether the former should hand over the leadership baton to the latter by May last year.
Some 32 years ago, the sacking of Salleh was also the culmination of the politicking among politicians when Tengku Razaleigh Hamzah narrowly lost to Mahathir in the 1987 Umno election which split Umno into Team A and Team B, which then resulted in the deregistration of Umno and culminated in the persecution of an innocent man, who until he went to his grave, failed to get a tribunal to clear his name.
Jamari Mohtar is Director of Media and Communications at EMIR Research, an independent think tank focused on strategic policy recommendations based on rigorous research.
