Should Salleh Abas Have Been Sacked?
Not many people beyond the Malaysian Liberal-sphere know who Tun Salleh Abas is. Salleh Abas is one of the few people who can proudly ay they were the top judge in Malaysia — and if I'm not mistaken, he is the only such person who can say he was sacked from his post as well. (For background to this interesting constitutional crisis, I penned Revisiting the 1988 Constitutional Crisis.)
But it is an interesting question — did Salleh and his brother judges deserve to be sacked? Possibly — I don't know. Bakri Musa has advanced the argument that Salleh Abas was an incompetent jurist who got what was coming to him.
It's certainly true that our bench has been marked by incompetent judges, both before, during and after the time of Salleh Abas. It's possible Salleh was one of them as well; Bakri cites the fact that he totally vanished from public life, not being able to hack it in the private sector, as proof of this.
I would not be too sure about that, however. Considering the establishment's reach in Malaysia, it's not unthinkable that no legal firm would dare take him on — although the fact that controversial lawyers like Malik Imtiaz Shawar (Muslim-to-Catholic convert Lina Joy's legal counsel) can find a place in the legal business does suggest that Salleh may not have been up to mark.
Bakri further cites Salleh's pitiful performance as a PAS candidate in the 1999 general election as a mark against him; this is something I definitely think is unfair to Salleh, considering that it is rare for skills from one branch of government to be relevant to a different branch. The same mind that can pen a legal judgment may not be able to run a political campaign.
In any event, one distinctive thing about Salleh is that as the top judge in the country, he was relentless in defending the judiciary's independence. Mahathir repeatedly complained in the months leading up to Salleh's sacking that the courts were insufficiently pliant to his will, and the evidence is there that Salleh doggedly refused to yield to pressure from the executive.
This independence is remarkable because prior to the Salleh Abas court, the Malaysian judiciary, despite being free from overt executive pressure, routinely ruled in favour of the executive, consistently taking the interpretation of the law most favourable to the government. (Until appeal to the British Privy Council was abolished in the early 1980s, some basic freedoms were not wiped out thanks to the benevolence of "neocolonialism".)
Putting two and two together, res ipsa loquitur (the facts speak for themselves) — Salleh was sacked not because of incompetence, but because of his defence of the separation of powers and the judiciary's right to take an interpretation of the law not favourable to the government.
In his book Towards A Competitive Malaysia, Bakri caustically remarks that "Judges, unlike ordinary mortals, apparently are immune from such a human fate [of being sacked]."
Well, removing incompetent judges would by and large be a good thing. But ensuring that competent but controversially impartial judges are not sacked is even a better thing, is it not?
Tenure for senior judges is a hallmark of any well-developed legal system, for the same reason that the senior faculty of any university have tenure. Without the confidence that they can issue controversial rulings without losing their position, judges will be far more inclined to giving in to the wishes of whoever controls the power to sack them.
Salleh might have deserved the boot for being a poor jurist. But in the first place, that means his appointment was not decided correctly, and for the sake of our institutions, the executive should have put up with Salleh (and picked a better judge the next time).
Without an independent body to arbitrate the law, what good is the concept of the rule of law? If the same people who make the law get to enforce the law and interpret the law, that basically means the law says whatever these people want it to!
Regardless of Salleh Abas' competence or lack of it, the fact is he should not have been sacked. His sacking, and the constitutional crisis which ensued, ensured that our fledgling democracy's judicial independence was suffocated in its cradle.