Book  Review Judges and Sultans H P Lee on the crises of 1983 and 1987

Tun Hamid's excuse WHEN TAN SRI ABDUL HAMID was asked to withdraw from the tribunal set up to try the Lord President of the Federal Court for "misbehaviour" he refused, because, he said,  it would have been an affront to the Yang di-Pertuan Agong ("the Agong") who had appointed him to the panel. The chief justice of Malaya was in fact one of the twenty judges who had met and approved of a letter to the Agong complaining about the prime minister. This set off a series of shocking events which resulted in the sacking of  Tun Salleh Abbas.   Tan Sri Abdul Hamid's excuse was viewed by many as stubbornly evasive and self-serving; how could he, an accomplice in the offence, sit in judgment on the unfortunate man who had signed the fateful letter on his behalf? But what if it was a sentiment sincerely felt? It is a lamentable fact that most of our judges who are marinated in the feudal culture fail to understand the nature of our constitution. This is painfully evident when such bizarre statements as :  "We are the King's judges", "Contempt of court is contempt of the King," "Discussion of the conduct of judges amounts to discussing the conduct of the King," and so on issue from the courts. Were it not for the tragic consequences, the judges' incompetent complaint to their "King"  deserved nothing better than embarrassed loud laughter at the exposure of their ignorance.. Taking their cue from the New Straits Times the judges, who ought to know better, are wont to refer to the Agong misleadingly as the "King". This journalistic shorthand makes a mockery of the idea first advocated by Dato Onn that post colonial Malaya should have a president elected by the Sultans, an invention probably inspired by the Negri Sembilan precedent. The new constitution was devised so that the office of the head of state should not impinge on the sovereignty of the Malay States. The Yang di-Pertuan Agong was carefully crafted to be a paper tiger, a statutory creation, without powers in his own right. He was to be elected by the Conference of Rulers for a term of five years and could be removed by them before his term was up.  Hence the joke that "in Britain the prime minister is chosen every five years and the monarch rules for life; whereas in Malaysia the king changes every five years and the prime minister rules for life". When he takes office the Agong swears to "faithfully perform our duties in the administration of Malaysia in accordance with its laws and constitution".  The judicial power is vested in the judges (at least up to 1988;  after the Constitutional amendments we will have to wait until Federal Court tells us where it now vests).  The judges pledge allegiance to the country and to defend its constitution. The "King's judges" (we exclude the speaker of the lower house of Parliament for he was not a judge at the time of the Salleh Abbas trial and the Sri Lanka judge who left the country in a huff after the shocking majority decision) who voted to sack Tun Salleh Abbas did no honour to their "King". In terms of their understanding of their loyalties,  when they  "sullied the fair name of this country" (Tengku Abdul Rahman). Did they not think that their actions had blackened the name of their "King"? H P Lee, associate professor of law at Monash Unversity,  analyses those terrible events in his book "Constitutional Conflicts in Contemporary Malaysia" which also examines the constitutional crisis of 1983. It is a useful guide to those who want a legal explanation and understanding of those programmed activities. His examination of the Report of the Tribunal leads Professor Lee to the conclusion that the Tribunal failed to appreciate the nature of its role; that the questioning of the chief secretary to the Government was an indictment of the experience and wisdom of its members,  and that   the participation of Tan Sri Abdul Hamid Omar had made a mockery of the whole process.

Snubbing Royalty A second tribunal headed by Datuk Edgar Joseph Jr removed two other judges who had also crossed the  prime minister's path: Tan Sri Wan Suleiman and Datuk George Seah.  Professor Lee rightly points out the failure of the second tribunal to interpret section 9(1) of the Courts of Judicature Act which lays down that during the illness or absence from Malaysia or any other cause the lord president is unable to exercise his powers the next senior judge should perform his duties and functions. If, Professor H P Lee argues,  "any other cause" included bias or interest in the proceedings Tan Sri Abdul Hamid was disqualified,  and Tan Sri Wan Suleiman did no wrong in exercising the powers that vested in him, being the  next in seniority. Nor Dato George Seah. For the second tribunal found that he had  "honestly believed" that Tan Sri Wan Suleiman was legally the head of the court and had acted accordingly. This is a sorry tale, a chilling account of the murder of judicial independence, aided and abetted by judges who abjectly disgraced their office.  The judiciary which Tengku Abdul Rahman had kept at a respectful distance, an example observed by his successors Tun Razak and Dato Hussein Onn was overnight thrown into hatred, contempt and ridicule. The judiciary which, Professor Lee notes,  "Had nurtured a quality of independence which was the envy of judiciaries in many Third World countries" was no more. The other part of Professors Lee's book deals with the constitutional crisis of 1983 created by the government's proposed amendments to the power of the Yang di pertuan Agong to delay the passing of legislation and granting the prime minister power to declare an emergency. As Professor Lee's book is confined to the legal aspects of the crises the explosive events outside the Royal palaces which shook the country to its roots are necessarily outside the scope of the work. But we cannot forget those historic happenings when the government took its case to the street, with  UMNO organised rallies to recruit the public to its banner of rebuke. UMNO which in 1946 took on the role of protector of Malay Royalty was now its loud mouthed critic; even such details as the number of escort motorcyclists each Sultan was entitled to did not escape public debate. Was this a historic turning point marking the rise of the new rich, the brash Melayu Bahru? Or was it a clash of two traditions - the Indian and the Malaccan? Or a mixture of both? Perhaps we shall have to wait another 20 years before anything tentatively conclusive can be written. # Lim Kean Chye _____________ Constitutional Conflicts in Contemporary Malaysia by Associate Professor of Law H P Lee, Monash University Oxford University Press

________________________ Letter from the Hardings Dear Penang File: May Chu and I appreciated and enjoyed Lim Kean  Chye's review of our book, "Escape from Paradise." Mr. Lim, in his review, has demonstrated a  perceptive and thorough knowledge of our book, and the surrounding facts. Our thanks to Lim Kean Chye for  his fine review of "Escape from Paradise." John & May Chu Harding *The Hardings' website is at   http://www.escapefromparadise.com *The book is stocked by Kinokuniya Bookshop, K.L.

The BOOKSHOP , Chow Thye Road, stocks Penang Sketchbook as well as books previously reviewed in The Penang File such as : Tan Sooi Beng: Bangsawan ; Machiko Katayama; The Philosophy of Ikebana ; Dato J J Raj Jr: The War Years and After ; Lim Kean Siew: The Eye Over the Golden Sands ; Lim Kean Siew:  Blood on the Golden Sands ;  Malaysia Nature Society, Penang branch: Nature Trails of Penang Island . Lim Kean Siew:  The Beauty of Chinese Tixing Teapots and the Finer Art of Tea Drinking ; Said Zahari: Dark Clouds at Dawn ; Eric Lawlor ; Friends of the Botonical Gardens: ;  T N Harper: The End of the Empire and the Making of Malaya. (Telephone 228 2252)

______ INDEX Point to the article that you want to read, and CLICK Index page   Baba sayings   Bangsawan & boria   Early Penang   Japanese in Penang   Judges and Sultans   Sattar Leaves Baghdad     Triads and traitors

_____________________ The Penang File Issue  28