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Some lessons from Tun Salleh Abas’ experience — M. Santhananaban

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JANUARY 22 — It is both laudable and uplifting that some three decades after he ceased being the Lord President of the Supreme Court (as the Chief Justice was then called) Tun Salleh Abas has engendered on his passing, such extraordinarily effusive and elevating accolades and tributes. There were sincere expressions of high esteem for his erudition, exceptional integrity, independence, fearlessness and an understated humility. Effusive and enlightening as they were these encomiums emblematically showed up certain strong and striking injustices and inadequacies in our system of governance and jurisprudence.

Tun Salleh has remained in the hearts and minds of the people in general for a long time. There were those who felt particularly disheartened, disillusioned and outraged by the unusually blunt, brash and almost barbaric and rushed manner in which he was dismissed. It was a distasteful and disgraceful episode that took place 33 years ago but it still rankles in the minds of some of us .These thoughts have resurfaced with Tun Salleh’s passing.

An early attempt by his peers in the Supreme Court to salvage him and provide some relief was not only frustrated but finished off with formidable firepower, ferocity and flourish. A concerted, concentrated and consummate action of this sort against a respectable personage, needless to say, requires not just one or two players but a series and possibly a school, not just a selection of institutionalised individuals driven by their beliefs, their obsequious obedience, their private ambitions and their comfortable capacity for unconscionable bureaucratic action. A whole charade was mounted by these despicable individuals to subject the nation’s highest jurists to much humiliation, character assassination and harm in 1988.

It is time to rectify and reform our governance system so that episodes of this type do not recur.

Tun Salleh was one of the few from the East Coast states to join the country’s small legal and judicial service in the Merdeka era when there were still many Caucasians serving.

He maintained his quiet dignity and social distance by retaining his modest Muslim outlook and lifestyle yet being respectful of other religious and regional cultures. His contemporaries included some from rather more aristocratic backgrounds and some of them were generally of the type to imbibe some beverages of the spirited genre at cocktail parties. Salleh faithfully maintained his teetotaling tradition. Yet he maintained rudimentary rules of courtesy, collegiality and correctness when attending functions and mingling freely with others.

These agreeable attributes and his willingness to listen patiently endeared him to most segments of contemporary society. His superiors, both Tun Suffian and Sultan Azlan Shah always spoke well of him.

Although he spent the vast part of his early life in the legal and judicial service he proved, while he was on the bench, that he was not entirely of a government bureaucrat’s mindset but a judge with a sound, eclectic and inclusive judicial temper. This is a quality that is difficult to attain, accept and blend with in real working life. It is this transitioning from the civil, enforcement or legal service to a high judicial position which poses a challenge. In the latter position on elevation a judge must not only be fair, seen to be fair but must be capable of commanding the full trust of the various segments of society. The judge must be capable of showing an understanding and appreciation of the viewpoint of a litigant who may be just a private individual belonging to a different culture, a corporate or NGO representative or an agitator for freedom, human rights etc. Tun Salleh proved himself capable of making this transition while upholding the decorum and dignity of his high judicial office and the court over which he presided. This is the high benchmark to which all judges must aspire. Notwithstanding their long tenure in a civil service or bureaucratic capacity they must realise that judicial office is a highly elevated position in which they are concerned not wholly with regulatory, enforcement and advisory roles to the exclusion of broader issues impinging on individual and collective rights, the socioeconomic ecology, human and humanitarian work, antitrust and weighty constitutional matters in a changing environment. Perhaps one way to emphasise and achieve this kind of all roundedness in a judicial panel is to have a full and variegated complement which is drawn from the state’s bureaucracy, academia, NGOs, and the private litigation practice and the corporate sector.

Historically Malaysia has had very strong central governments where power was unevenly and preponderantly based in the federal government. In the past two years there has been great attrition of the federal government’s power base especially with the emergence of a stronger opposition in parliament. There are also state governments which do not associate politically with the central government. While trusting that there will be a reemergence of a stronger government through greater parliamentary strength it is essential to recalibrate gradually the composition of the bench to reflect certain existing and emerging realities. Sabah and Sarawak, for instance like the private legal and NGO sector should be drawn on to be a larger part of the judicature.

There is another aspect of Tun Salleh’s unique position that must not be overlooked. While he had risen through various levels of the legal and judicial service on account of his hard work, integrity, scholarship and courage he could still fall victim so easily to rather arbitrary and aggressive actions. In this regard there is a greater responsibility for society, the social and the press media, government, especially judicial and legislative institutions to protect the judiciary and all its components. For that to happen there is an obligation to ensure that the judiciary is not subject to any kind of underfunding, pressure and discrimination. Further judges have to be deeply alive to their oath of office, they have to have security of tenure and they must not be perceived to be using the bench as a beachhead for a post judicial career.

Perhaps one way to overcome this issue is to provide Federal and Court of Appeal judges the option to retire at 60 and draw their full pension and pursue their careers elsewhere. Those that opt to stay on should be allowed to draw their full emoluments as a pension from the age of 72 or beyond. In this way the talent pool of our highest courts would acquire a character of stability, scholarship and seniority. There would also be scope for some higher court judges to specialise in certain areas of financial technology, cyber security, mail fraud and IT misdemeanours .

Courts are the ultimate recourse for any aggrieved individual, institution or entity and with the increasing number of transgressions at the super elite level there is a clear need to equip and protect them to enhance the effectiveness and enforceability of the law.

Finally, would we be able to think of commemorating Tun Salleh by naming the street where the Palace of Justice is situated after him?

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.

 

https://www.malaymail.com/news/what-you-think/2021/01/22/some-lessons-from-tun-salleh-abas-experience-m.-santhananaban/1942928

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