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Page 11
 
 

"I WAS ASHAMED AS A MALAYSIAN." So said Tun Mohamed Suffian, Tun Salleh's predecessor when the Lord President of the Federal Court and three other senior judges were sacked in 1997 

And in March 2000:  "I had predicted that our judiciary would take a whole generation to recover from the assault. Now that more than 12 years have elapsed I doubt if the judiciary would recover in a generation from today." And, "Judges who have joined in downing their boss have been rewarded by promotion. Judges who have not, have been cowed into silence. Judges are at sixes and sevens.  Some daren't speak to each other. While there are judges whose integrity and impartiality have never wavered the public perception is that the judiciary as a whole can no longer be trusted to honour their oath of office"

Harsh words but weighty and the more killingly effective coming as they did from a darling of the establishment, appointed the youngest judge at 44 and rising rapidly to become the highest judge of the land when he was 57, and a rare Tun to boot. 
 

His judgement in the case of Loh Wai Kong (1979) 2 MLJ 33 FC that "personal liberty" guaranteed by Article 5 of the Constitution did not confer on a citizen a fundamental right to leave the country raised a few eyebrows; it was tantamount to saying that citizens are prisoners of their own government. His decision on Article 4(1) of the Constitution caused much unhappiness. That was the case of Phang Chin Hock (1980) 1 MLJ 70 FC where he held that although the Article declared that any law passed after Merdeka Day which is inconsistent with this Constitution shall to the extent of the inconsistency be void did not apply to amendments to the Constitution. Startling was his statement that the Constitution was a living document reviewable from time to time. Everyone knows the consequences: the boast of a minister that his government had amended the Constitution scores of times and that they could continue to do so.  The Constitution had become the plaything of politicians

 Thus it came about that Mark Koding (1982) 2 MLJ 121 FC lost the argument that an MP was guaranteed the right of free speech in Parliament. Tun Suffian wrote unconvincingly that he did not consider an MP's right of free speech in Parliament formed part of the basic structure of the Constitution. That right had been curtailed by an amendment which opened the MP to prosecution for making a seditious statement. 

Given his background, his judicial inclinations were understandable. He was a man of his times, his world view and prejudices shaped by his village and his deeply religious background, by Gonville and Caius College, Cambridge in the era of Neville Chamberlain and Winston Churchill when labour was a dirty word, by the claustrophobic colonialism of All India Radio when Japan threatened to invade through Burma, by the colonial Malayan Civil Service dominated Malay section of the BBC of which he became head in 1945, and by the imperialistic course on Colonial Administration before the days of "the winds of change" 

When appointed a judge he made it clear that the role of judges was not to interfere with the other two arms of government, spurning the path taken by the maverick Lord Denning whose judge worship persuaded him to think that judges being super-wise men should actively invent new law. Tun Suffian however made it equally clear that if anyone acted outside the law he would put it right

But he was careful not to be perceived as confrontational. In the case of Sri Lempah Enterprise (1979) 1 MLJ 135 FC where the court held it was wrong to compel a land owner to accept a lease in place of a freehold title as a condition for development approval he refused to make orders, merely remitting the case back to the Land Executive Committee for reconsideration. He was sure that it was highly improbable that any officer of the government would set the court at defiance though he warned that the arm of the law was long enough to reach the offender, whatever his position might be 

But sometimes he surprised with judgements such as Khoo Siew Bee (1979) 2 MLJ 49 FC, where he held that a cautioned statement by an accused person was a public document and as such was open to inspection by the accused. In Husni (1980) 2 MLJ 80 FC he laid down that where a prosecution witness is being cross-examined and the defence seeks to impeach his credit the court may in the interests of justice direct that the defence be supplied with a copy of his police statement. Shabduin bin Haji Salleh (1980) 2 MLJ 273 FC was an Internal Security Act case where the regulations deprive the accused of much of the protection of the ordinary criminal procedure.  When the prosecution argued that one of the regulation meant that the accused enter on his defence at the close of the prosecution case, the majority of the court led by Tun Suffian held that the regulation was not clear and the principle must apply that the judge will call on the defence only if the prosecution makes out a prima facie case 

Nor did he like litigants being shut out of court on technical grounds. In the case of Mohamed Noor bin Awang v Mek Tok binti Mat Min (1977) 2 MLJ 248 FC he said, "in fairness to him (the litigant) this dispute should be allowed to go to trial when the parties can call whatever witnesses are available to prove or disprove the alleged trust." It was important to him that where a large portion of the population lives in the countryside and are unsophisticated in the arts of the Acts of Parliament and the government gazette they should be given the benefit of the doubt and allowed to pursue their grievances. In his dissenting judgment in the case of Deraman v Mek Yan (1977) 1 MLJ 53 FC he reminded his fellow judges that in Kelantan, because of the ignorance of the peasantry who form the majority of the population and, possibly also because of the shortage of staff and the laxity of land officers extending over many years, many land transactions were never entered on the register. His sympathy was founded on his profound experience as an administrative officer, something that his fellow judges lacked 

He did not desert his post when it came to high profile cases. He presided when the highly sensitive appeal of Dato Haji Harun Idris came up for hearing  in 1977, it being the tradition for the most senior judge to preside over major criminal cases
 

His relations with the Bar were characterised by respect and co-operation. He clearly regarded the Bench and Bar as a brotherhood. At the Fifth Malaysian Law Conference in October 1979 he spelt it out. "The profession of law is not just our livelihood; it is our life and our passion" and, "I would like to assure members of the Bar that we will use our independence to preserve, protect and defend the constitution, to uphold the rule of law, to do justice impartially, fairly and justly without fear or favour; that when doing so we will show our professionalism by giving you a patient and courteous hearing". These were words of a naturally humble man
 

In 1981 he sensed the change of mood in the government. The Bar was coming to be regarded as an opposition. At the Sixth Malaysian Law Conference he reminded the meeting "that practising members of the profession are in the best position to spot necessary changes in the law and in my humble opinion it is their duty to draw public attention to the need for change whenever it arises. Lawyers owe this duty to their fellow citizens"

After his retirement in 1982, he was increasingly alarmed by the disturbing course of events which led finally to the judicial sackings. As early as February 1987 he was sounding the alarm. At the Malaysian Institute of Management he warned that "Since independence every government department has been politicised; but the judiciary has not and I hope will never be"...  "The executive is not supreme. It too must abide by the constitution and the law. If it dos not and is taken to court judges are under a duty to declare the Executive's acts unconstitutional, illegal and void"... "if a judge can be subjected to government pressure, however subtle, public confidence in an essential instrument to protect the citizen and mete out justice will be destroyed. Once that happens it will take a whole generation to restore public confidence"... "Every government in the world swears belief in the independence of the judiciary but some governments work subtly to undermine it"

Salleh Abbas and its aftermath shook him to the core. He was appalled by the collapse of the values he held dear: honour, truth and fairness. To him, the knave had replaced the knight, friendships betrayed by treachery. His bewilderment indeed,  anger, found expression in these words:  "I never thought that what happened in Idi Amin's Uganda would happen in Malaysia." (1989 Commonwealth Conference)

These were words of an honourable man, a brave man who gave vent to the shocked emotions of all. He stood like a giant among his countrymen.

He was denied the traditional ceremony of a court reference to honour the memory of a judge. This lapse not only breaks with a long tradition of the Bench and Bar; it diminishes those responsible.

-----------------------------

Tun Mohamed Suffian, Lord President of the Federal Court, died on 26 September.  He was appointed a judge in 1961, and became Lord President in 1974 and retired in 1982. His wife Dora Evelina George of  Norfolk, whom he married in 1946 died a year before him. They had no children. #