A Doctor in The House: A Memoir of Tun Dr Mahathir Mohamad (87 page)

It is hard to know at such times what is required and reasonable, what is disproportionate and excessive. We had to act, and we did. In retrospect it seems that we clamped down too heavily. But we have learnt a lot from what we all went through: we the Government, the police, the political parties of both the Barisan Nasional and the Opposition, the NGOs and the ordinary citizens who long for a peaceful life and look to the Government to provide them with social stability.

While some may disagree, Malaysia is a democratic country. One of the principal features of a democracy is the separation of powers between the Legislature, the Executive and the Judiciary. Yet this separation cannot be total or the nation would constantly be pulled in different directions. There must be some understanding among them and also coordination of the work that each centre of power does. Each must know its own proper domain and where its limits lie. Each arm of government must know its role and how far it may go before being accused of overstepping its operational limits.

In late 1987 I had to suppress my own personal doubts and feelings; I had to recognise the role and expertise of the police and defer to their exercising their appointed role in our system of government. No doubt Ops Lalang proved a black mark in the administrative history of Malaysia. But it taught us a good lesson. If we have had no more such operations since Ops Lalang, it was because we all learnt a great lesson from it, both the Government and the people.

Malaysia’s judicial system was inherited from the British. The founding fathers of the country saw no reason why it should be changed. It had worked quite well during the colonial period although there was discrimination in favour of the British
—
their nationals could not be tried by local judges. But since the cases involving them were few and far between, the discrimination was hardly noticed. Those who did, did not think it was unusual because the British were a race apart. They were the privileged colonial masters.

After World War II there were also no cases involving British or other European nationals. Certainly to my knowledge there were no European prisoners in Malayan prisons.

The law in independent Malaysia of course applies to everyone equally. There is no racial discrimination. The Constitution is the basic law and this is accepted by all. Should there be a need to amend the Constitution, the provision for this is in the Constitution itself.

By and large Malaysian legal and the judicial systems have worked well. The Government understands the role of the Judiciary and the separation of powers between the three pillars of the Government, i.e. the Executive, the Legislature and the Judiciary.

When I became Prime Minister I was the first non-legal man to hold the post. The first three were all trained lawyers and were educated in England. They of course knew about English Common Law, which had been accepted by Malaysia. Not being a lawyer, my knowledge of the law and the legal system was not on par with theirs. In fact Tun Mohamed Suffian Hashim, one of the most distinguished Lord Presidents of the Supreme Court, did hint at my inadequacy.

Not being trained as a lawyer, just as I was not trained as an economist, resulted in my having some unorthodox views on the administration of justice in Malaysia. The strongly held view is that a judge or his judgment must never be publicly criticised on pain of being charged with contempt of court. But on the other hand a judge may, in the safety of his court, comment or even disparage others including the Government. I did not think this was quite right.

Then there is the question of an issue being 
sub judice.
 When a case is before a court, comments on the case are not allowed. This seems fair enough. We do not want to have a public debate which often amounts to a public trial via the media, as often happens in the United States for example.

But then when cases drag on for years and years, the image of the parties concerned can be seriously damaged with no means of redress. Often the people involved, the accused, the prosecutors and counsel, and witnesses, could already be dead before the case was concluded. Besides, human memory is short: witnesses cannot be expected to remember accurate details of what happened on a particular day ten years ago. As a result justice may not be done.

Truly justice delayed is justice denied. But sometimes judges themselves are the cause of the delay. Instances where Malaysian judges fail to provide written judgments are common.

The Government could blame everyone else except the judges when delays occur or some miscarriage of justice takes place. Yet judges are also human and when they do wrong and they do not correct themselves, the Government, as a representative of the people, should be able to do something.

In my early days as Prime Minister I was perhaps less discreet and must have publicly exhibited my frustrations with the Judiciary. Once in Cabinet I jokingly quoted Shakespeare’s 
Henry VI
 in which Dick the Butcher famously says, “The first thing we do, let’s kill all the lawyers.” Of course I had forgotten the actual words. What I said was “the first thing we do is we hang the lawyers.”

Cabinet proceedings were supposed to be secret but somehow the lawyers got to know about what I said. They all, including a few members of the Judiciary, thought that I hated lawyers.

Although I knew a lot of people in the Government and outside, I must admit I was never close to the members of the Judiciary. If I held receptions, including 
buka puasa
 (breaking fast during Ramadhan), the only judge I invited was the Lord President. Except when the Lord President presented his list of judges for promotion, I never discussed court matters with him. Some of my friends had become judges but after I became Prime Minister I never met them. Maybe they felt that I was too proud after my elevation.

The general impression was that I was against the Judiciary. I was frustrated at times, yes. But I was not against them even though many decisions of the courts did not favour the Government I was leading.

Before my time the decision of the Minister regarding detentions under the Internal Security Act could not be questioned in a court of law. But clever lawyers got around this provision by presenting writs of habeas corpus questioning whether all the procedures involved in detention under the ISA had been followed. The court had found some failures, trivial though they may have been, and ordered the release of some detainees. Since then there have been many such cases, even though the enforcement officers have been more careful. Effectively, the provision that the decision of the Minister is not to be questioned by a court has been rendered quite meaningless.

Many other decisions were made against the Government, but the Government respected the court’s findings. There was never any attempt to interfere with the courts.

However, even judges must admit that they are human. As human beings and as citizens of the country they have their own feelings. They many not be involved in politics but they must have political sympathies. This may influence their judgments.

There was a case of a judge deciding on a matter involving an accident in which a minor leader of a certain political party had his car damaged. Everyone knew that the leader was in the wrong. Yet the judge decided against the other person, claiming that he himself saw the accident. He the judge was clearly a witness and should have excused himself. But he did not because, so people believed, he was in favour of one party against the other.

Yet no lawyer dared to challenge the judge and point out that as a witness his judgment was biased. They dared not challenge him because they may have to appear in his court later and he might find against them.

Judges are supposed to be aloof and impartial. But quite often they seem to show favour for a variety of reasons, including political and personal.

The most celebrated case happened during my tenure. It involved me as the candidate for party President in the 1988 UMNO Elections. I had won with a small majority although all indications prior to the elections showed that I had the support of the majority of the divisions whose delegates were eligible to vote.
[1]
 

The loser, Tengku Razaleigh Hamzah, took the case to court alleging that the election was illegal because a handful of the 2,000 plus branches did not hold their meetings properly. These branches were therefore illegal and their delegates to the General Assembly had no 
locus standi
.

The judge decided that UMNO was an illegal party. This put not just the party but the whole Government into a difficult position. Strictly speaking I had been made an independent Member of Parliament and was no longer head of the Barisan Nasional coalition.

The Opposition could have challenged me except that they knew any vote of non-confidence against me in the Lower House would not have succeeded. So I was able to continue as Prime Minister even though I was not the leader of any party or Chairman of BN.

I was forced to re-register the party as UMNO Baru (New UMNO) and we held a membership drive to rebuild the party nationwide. Tengku Razaleigh chose not to join UMNO Baru but to form his own party, Semangat 46 (Spirit of ’46). There was a scramble to get the members of the defunct UMNO to join either of these two new parties.

In the end, most of the defunct UMNO members joined UMNO Baru including the majority of the Members of Parliament. UMNO Baru applied and rejoined the Barisan Nasional, and I reclaimed my position as Chairman of BN.

Truly the decision of the courts to declare UMNO an illegal party created a lot of trouble for me in particular and the Government as well. I have every reason to be sore with the judge. I 
was
 sore, but it has never been my way to hold a grudge against anyone for long. Just as many who had tried to pull me down were reappointed Ministers in my Cabinet, the judge concerned, the late Justice Tan Sri Harun Hashim, was promoted shortly after the affair.

In the immediate aftermath of the bitterly-contested UMNO elections of 1986, a number of contentious legal matters came before the courts. These included the decisions in the Raphael Pura and John Berthelsen case over the right of the relevant Minister to exercise his due discretion not to renew the visas of foreign visitors and employees; the disputes over the amendment of Article 146 of the Constitution that allowed the Attorney-General, rather than the judges, to determine at what level of jurisdiction cases might be heard; the cases over the awarding of the North-South Highway contracts to UEM (at that time called United Engineers (Malaysia)); the case that led to the declaration that UMNO was an illegal party; and several others. In all these cases the authority of the Government was questioned by the courts and except for one, the courts decided against the Government.

The details of these cases and their possible interrelations with one another will be pondered over by legal and political historians of the future. I can say, however, that there is no connecting line of motivation that can be drawn between these events and the legal decisions and confrontations that led to Tun Mohamed Salleh Abas’s dismissal as Lord President. But it is worth noting that in many of these cases Tun Salleh generally found for the Government whenever he was involved in any of them.

In some notable instances where the decisions went against the Government, he issued dissenting minority opinions calling into question the legal basis upon which the judicial majority had chosen to reject the Government’s case. It was also significant that it was not Tun Salleh but Tan Sri Harun who delivered the remarkable judgment that the entire UMNO party was an illegal organisation.

I therefore had no quarrel with Tun Salleh. He had always been fair in cases involving the Government. In two important cases—the contempt of court charge brought against me by Lim Kit Siang and the injunction Lim sought against UEM—Tun Salleh was one of the judges who found in favour of the Government and myself, as opposed to three other judges who did not. Again, when the Supreme Court struck down an amendment to the Criminal Procedure Code allowing criminal proceedings to commence in the High Court (as opposed to the Magistrate’s Court) on a writ from the Attorney-General, Tun Salleh’s judgment dissented from the those of the presiding judge and two others.

I was not aware at the time that he had already made two speeches against me and the Government. One was the address he gave upon receiving the Honorary Doctorate of Letters from the University of Malaya in 1987, and the other was a speech that he made in 1988 to launch a Malaysian legal publication entitled 
Law, Justice and the Judiciary: Transnational Trends
. But these speeches did not initiate the action subsequently taken against him. Rather, it was the result of a letter he wrote to the Yang di-Pertuan Agong.

To cast more light on the following account, one must understand the odd relationship between the rule of law and the Rulers in the Malaysian context. As we know, there was no democracy in the Malay states prior to Independence—there was only feudalism, where the ruler had the power of life and death over citizens. Thus it was that Hang Tuah, the legendary Malay warrior, was sentenced to death by the Sultan. There was no law prescribing this punishment for his alleged crime of having an affair with one of the Sultan’s wives. Until 1993, the Rulers enjoyed immunity before the law under Article 181 of the Constitution.

But after the amendments of 1993, the relation between the Ruler and his subjects was made clear by the provision in the Constitution protecting the rights of everyone before the law.

People intending to commit a crime know what the consequences are: the idea of doing away with absolute monarchy is to remove the arbitrariness of punishments.

The power of the Malay Rulers and the Agong to punish citizens directly has been transferred to the courts. Yet, in Malaysia and especially among the Malays, the Ruler still wields considerable influence, being backed by strong Malay traditions or 
adat
. I must admit that I too find it difficult to ignore 
adat
. As much as possible I would try to avoid personal confrontations with the Rulers. But if I had to, I would resort to formal action through Parliament to prevent abuses by royalty.