The Judiciary

• Pages: 265-302

CHAPTER 13

A INTRODUCTION

One of the beneficial by-products of colonialism was that well trained and impartial

judges were sent to the colonies by the Colonial Office in London as well paid members

of the Colonial Legal Service. No political or other pressure could be exerted on them

because they served under English Governors instructed to leave judicial business

entirely up to those judges, who were subject to transfer from one part of the ‘Empire’ to

another. This policy at the same time had its dangers and drawbacks since judges, to be

effective in their work, should understand the social environment in which they serve.

However, under that system judges could not be dismissed at pleasure: quam diu se bene

gesserint, that is, so long as they behaved well. They could not be dismissed at all by local

politicians. After independence following the end of the Second World War, things

changed – as we shall see by an examination of the attitude of the executive to the

judiciary in three newly independent countries.

B GHANA JUDICIAL COUP UNDER NKRUMAH

One of the first examples of the vulnerability of a judge of a superior court was seen in

Ghana in 1964, seven years after independence.

In this connection, the author refers to what he wrote in 1978 in another book on this

subject:1

In that (Ghana) regime the President was prepared to stop at nothing to stamp out what

was called subversion, and in 1964 a Special Criminal Division of the High Court was

established to that end. Even though there was a Supreme Court which in its appellate

jurisdiction was the final Court of Appeal in the country there was to be no appeal from this

special division. The division, having been called upon to try five accused persons –

including two former ministers and a former secretary of the Convention People’s Party –

acquitted the accused after hearing the evidence adduced against them. As a result of the

acquittal, the President summarily dismissed or forced to resign the judges who had

constituted the panel, including Sir Arku Korsah, the Chief Justice. The President was able

to take this extraordinary step by virtue of a section in the 1960 Republican Constitution of

Ghana providing that the Chief Justice’s appointment could ‘at any time be revoked by the

President by Instrument under the Presidential Seal’ ... It was clear that the Ghanaian law

was intended to warn all judges that they were there to give effect to the President’s

behests, upon pain of dismissal.

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THE JUDICIARY

1 See Phillips, 1978, pp 163–64.

C CONFRONTATION IN MALAYSIA BETWEEN

THE EXECUTIVE AND THE JUDICIARY

Twenty-four years later, in 1988, the authorities in Malaysia staged a similar judicial coup

in that country when they embarked upon the ruthless dismissal of the President of the

Federal Supreme Court (Tun Salleh bin Abas) and two other Supreme Court Judges in

what a very discerning writer has described as an event which does not seem likely to

have ever occurred elsewhere in any common law jurisdiction.2

Article 127 of the Malaysia Constitution imposes a restriction on parliamentary

discussion of the conduct of judges in either House except on a substantive motion of

which notice has been given by not less than one-quarter of the total number of members

of that House. Notwithstanding this stricture the Prime Minister (Dr Mahathir bin

Mohamed) attacked the judiciary, during the second half of 1987. The President of the

Federal Court considered he had no alternative, but to respond in the course of launching

a book he had written on law, justice and the judiciary.

One of the judges wished to enter the fray, but the Lord President of the Supreme

Court restrained him. Having called a meeting of the majority of his federal and State

judges, it was agreed without dissent that individual judges would not reply, but that a

letter would be despatched to the King expressing the concern of the judges about the

criticisms. All the judges were given copies of the letter the day after it was sent and no

objection was received – not even from the Supreme Court Judge who was not originally

keen for the despatch of the letter.3

According to Trindale, the King having received the letter on 26 March 1988,

summoned the Prime Minister on 1 May 1988 and showed him the letter about which he

was displeased and instructed the Prime Minister to take steps to replace the Lord

President.4After taking legal advice from the Attorney General, the Prime Minister

advised the King that Art 125(3) of the Federal Constitution stipulated that the Lord

President could only be removed on grounds of misbehaviour or inability from other

causes properly to discharge the functions of his office. The Prime Minister, having

undertaken to investigate whether there was evidence of misbehaviour, later addressed

the King proposing that the Lord President should be removed on grounds of

misbehaviour and other causes, ‘which clearly show that he is no longer able to discharge

his functions as Lord President properly’. The Lord President was promptly suspended

from office and a tribunal appointed to enquire into the charges brought against him –

shortly after having been received by the Prime Minister who informed him that the King

had objected to the letter sent and had decided to dismiss him. (Immediately on his return

to office, the Lord President had submitted a letter to the Prime Minister seeking early

retirement, but the letter was withdrawn a day or two later – as the judge reasoned that

such an application would be interpreted as an admission of guilt.)

The next step in the saga was the appointment of a tribunal, in respect of which the

Prime Minister had made the nominations, although he was obviously a person

Commonwealth Caribbean Constitutional Law

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2 See a very enlightening article by Trindale, 1990, pp 51–56, from which the facts are drawn.

3 Tan Sri Hashim Sani.

4 The judges evidently felt they would receive protection from the King, but were mistaken.

‘interested’, since it was a result of the Prime Minister’s criticism of the judiciary that the

offending letter had been sent to the King. Article 145(2) of the Constitution of the

federation envisages that, in circumstances such as this, the King should seek the advice

of the Attorney General on the nominations, but such advice was not sought.

The composition of the tribunal was open to question on other grounds. For example,

its chairman was to be Tan Sri Abdul Hamid Omar, the then Chief Justice of Malaysia,

who as the most senior judge next to the Lord President was likely to be appointed as his

successor, which in the event happened. The Chief Justice had also been one of the judges

with whom the Lord President had discussed the letter to which there was no expression

of dissent. A further objection to the composition of the Tribunal was that there were two

retired High Court judges appointed to it, whereas there were available at the time three

former Lord Presidents, two retired Chief Justices and five retired Supreme Court Judges

– all carrying the same rank of Supreme Court Judge as the Lord President. And one

would have expected that, in appointing members to such a body, care would have been

taken to select judges of a rank not below that of a Supreme Court Judge. A still further

problem with the tribunal was that there were no existing rules governing such an

enquiry. However, some hurriedly drafted rules were sent to the Lord President, with a

note that the tribunal would make any further rules ambulando, if necessary.

On the matter of the standard of proof, the tribunal arbitrarily decreed that this would

be on the basis of a balance of probabilities rather than proof beyond reasonable doubt.

The tribunal also decided not to hold public hearings, but to sit in camera. In the view of

the Lord President, he was in several respects being tried as a criminal would be, instead

of taking part in an inquiry, the standard of proof being in any case misconceived.

One must therefore applaud the Lord President for refusing to take part in the

tribunal which proceeded to ‘try’ him in absentia and to recommend his removal.

When the Lord President, through his counsel, asked the tribunal to adjourn the

hearing while he moved the High Court for a writ of prohibition to prevent the tribunal

from continuing the investigation and reporting, the tribunal refused the request. The

Lord President then petitioned the High Court and, as the tribunal had hurriedly

completed the inquiry and were preparing to send their recommendation to the King, the

Lord President asked the High Court Judge for a limited stay. This order was likewise

refused.

The Lord President appealed to the Supreme Court against the refusal of the High

Court to grant a stay.

Although obstacles were placed in the way of the Chief Registrar not to facilitate

holding of the court session the judges succeeded in hearing the matter and granted a stay.

Thereafter, the Acting Lord President made representations to the King that the judges

who heard and granted the stay should also be removed from office for misbehaviour –

the main allegation being that the court had no right to convene a session of the Supreme

Court without his permission. Two of the judges, who were subsequently dismissed,

were also charged with failure to attend a court session at a distant outpost without the

Acting Lord President’s permission: even though it was clear to the latter that, in the

emergency, they had decided to adjourn the sitting to attend to a matter relative to the

dismissal to the head of the judiciary – which they considered to be an occasion of

national emergency.

Chapter 13: The Judiciary

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