Home 2006: 8 A man wronged (Part 2)

A man wronged (Part 2)

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federal courtIt is unbelievable how evil forces can conspire, lie and cheat in order to remove a man who was perceived to be a threat to the power base of the powerful. The man who was wronged, former Lord President Tun Salleh Abas, continues with his rebuttal of the findings of the Tribunal which conducted a kangaroo court to do him in.

“This finding of the Tribunal is capricious and judicially outrageous.  In coming to that finding, the Tribunal disregarded all the evidence before it.”

“The Attorney – General’s superficial questioning… contradicts the assumed role he was given by the Tribunal’s Rules of Procedure: there was, on his part, no attempt at all to ascertain the truth.”

“To make a finding against me on the evidence of this witness is irrational: no reasonable tribunal would or could have come to such a finding on such evidence.”

Part 1

Part 2 

Allegation 3 

This Allegation concerned an appeal which I had adjourned sine die.  A child had changed her religion to Islam.  The parent, alleging that he had not consented to the conversion, had applied by Originating Summons to the High Court at Kota Bahru for a number of declarations.  The application was dismissed by the Court after a hearing in Chambers.

On the documents placed before the Tribunal, it seems very clear that my decision to adjourn sine die the hearing of the appeal (which had been fixed for 3 August 1988) was a result of an application received from the Appellant’s solicitors, Messrs Shan & Gooi, dated 23 July 1987 (at Vol. 4), which states:

“… sukacita sekiranya perbicaraan rayuan tersebut dapat ditangguhkan kepada suatu tarikh kelak sebab kami ingin membuat suatu permohonan bagi leave di bawah sek. 68(2) Courts of Judicature Act, 1964”.

There can be no doubt that the Appellant, by this letter, was applying for the hearing to be adjourned sine die because the appeal could not be proceeded with until the leave under s.68(2) had been obtained.  In an instance such as this, where it would not be possible to know yet when the leave would be obtained, it is normal to adjourn the hearing without fixing a definite date (that is, the hearing is adjourned sine die or indefinitely): any of the parties would then be at liberty to apply to the Court to have a date fixed for hearing or disposal.  The Courts grant such adjournments frequently, especially if the request is made by the Appellant.  Tan Sri Abdul Hamid bin Omar, as the Chief Justice, must surely be familiar with this.

That the Tribunal could find any substance at all in this charge is most extraordinary.

A perusal of the Notes of Evidence (page 45, Vol. 4) shows the approach which the Tribunal, the Attorney-General and the witness (the Chief Registrar, Encik Haidar bin Mohd Noor) had taken on the charge and which led to the Tribunal’s astonishing finding: –

Tan Sri Dato Abdul Hamid hin Haji Omar:
Order of sine die would mean that it is just lying there without coming up for a final order.  So this is something out of the ordinary.

Encik Hadar bin Mohd Noor:
This is the first time I came across an order like that.

Mr Chief Justice K.A.P. Ramasinghe:
What is the effect of sine die order?

Encik Haidar bin Mohd Noor:
It will be shelved indefinitely.

Mr Justice T. S. Sinathuray:
From your experience. what happens if a matter is adjourned sine die, is it kept aside until such time one or the other party writes in and requests for it to be restored?

Encik Haidar bin Mohd Noor:

Tan Sri Abu Taib Othman:
Until to this date, the file remains as it is with the note from the Lord President “adjourned sine die”

Encik Haidar bin Mohd Noor:
Yes.  We informed the counsel on 31.7.87 accordingly that this case had been taken off and will be fixed at a later date.

From the letter by the Senior Assistant Registrar(Encik Haidar bin Mohd Noor) it states that “to a date to be informed later”.  The letter does not say “adjourned sine die”

The Senior Assistant Registrar, for one, knew what was meant by sine die.  In the light of the evidence of Encik Haidar that “matters pertaining to Supreme Court appeals would normally be handled by the Senior Assistant Registrar”, and that he himself was not quite sure of the facts, it is surprising that the Senior Assistant Registrar was not called as a witness to explain the purport of an adjournment sine die.

It is also surprising that the granting of the adjournment was regarded and treated by the Tribunal as the making of some formal Order of Court and thereby caused itself to suffer from a serious misconception. No formal Order of Court need be made when granting an adjournment.  The granting of an adjournment is an administrative instruction which may be varied at any time on the application of the parties or at the instance of the judge granting the adjournment.

At page 44 of Vol. 4, the Attorney-General disclosed the real motive for bringing this charge against me, when he said:

“This case has the impact on the society of this country because our country is multi-religious and multi-racial.  We use this case in view of the views expressed by the Lord President in his speech. Not only the Courts but the executive and the legislature should be bound by the Islamic law.”

How was this relevant to Allegation 3?  Nevertheless what he said seems to have influenced the Tribunal into dealing with this Allegation and Allegation 2(iv) together (page 37, Vol. 1).  The Tribunal, in its conclusion, states (at page 43, Vol. 1):

“The effect of this order was that the appellant could not proceed with his appeal, and therefore was unable to obtain the relief he sought.  It is clear from the evidence of the Chief Registrar that the respondent had in this instance departed from the usual practice. It was contended by the Attorney – General that such discriminatory treatment meted out to the applicant by the respondent had been deliberately done for extraneous considerations. Whatever may have been the ground for such act, it is clear that it is not an act  arising from mistake or error of judgment and stands unexplained before us.”

This finding of the Tribunal is capricious and judicially outrageous.  In coming to that finding, the Tribunal disregarded all the evidence before it:  the Tribunal deliberately ignored: –

a.    that the application for adjournment was made by the appellant himself (through his solicitors);
b.    that the other parties to the appeal did not object to the appellant’s request for the adjournment;
c.    that it had been the practice of the Supreme Court to grant adjournments requested for by any party for good reasons, without the matter having to be called up on the hearing date;
d.    that the Chief Registrar, in answer to Mr. Justice T.S. Sinathuray, agreed that the matter was kept aside “until such time one or the other party writes in and requests for it to be restored”.
e.    that since the adjournment, neither the Appelant nor any of the other parties had written in for the appeal to be restored.

To say of the Tribunal’s finding on this charge that it was unfair is to understate the callousness of the attitude taken by its members. The finding is clearly perverse.

Allegation 4

I have dealt with this Allegation in some detail in the Preliminary Statement I issued on 10 August and wish now to add only the following:-

a.    The Tribunal seems to have omitted to deal specifically with charge (iii).  This charge relates to the allegation made in the Press Statement issued by the Prime Minister’s Department on 31 May 1988, that the Yang di-Pertuan Agong took exception to my letter of 26 March.  Considering the importance of this charge (which was said to have started the whole process against me), the Tribunal’s apparent oversight is glaring.

b.    Although it was the Yang di-Pertuan Agong who took exception to the letter I sent on 26 March, the Report did not have, by way of annexure, a copy of that letter.  Instead what was included (in Vol.5) was a copy of a letter of identical content also dated 26 March 1988, signed by me and addressed to His Highness the Sultan of Pahang.  How this letter was relevant to this Allegation and how the copy of it came into the possession of the Attorney-General (who framed the charges) was not explained to, nor gone into or considered by, the Tribunal. There was no hint whatsoever of His Highness the Sultan of Pahang having complained on the letter sent to him.

Allegation 5

This Allegation states that I had, subsequent to my suspension, made various statements which contained untruths and which were calculated to politicise the issue between the Government and myself and to further discredit the Government.

The principal charge against me was that I had made public a statement to the effect that, at my meeting with the Prime Minister on 25 May, he had said that another reason for steps being taken to remove me from the office of Lord President was that I had expressed partiality in the UMNO cases.  It was alleged that such a statement was never made by the Prime Minister.

Tan Sri Sallehuddin Mohamed, the Chief Secretary, who was present at the meeting of 25 May, and who took notes of what was said, was called as a witness to give evidence; and his testimony in relation to this issue is as follows:

Tan Sri Abu Talib Othman:
Can you please tell the Tribunal whether or not the Prime Minister said that this action was taken because of the fact that he is biased in respect of UMNO cases then pending in court?

Tan Sri Sallehuddin Mohamed:
I do not recall what the Prime Minister said, that UMNO cases is the reason for the Agong asking the Lord President to relinquish his post.

Tan Sri Abu Talib Othman:
That is about all that would be necessary for that charges.  Unless Your Lordships have questions.

Tan Sri Dato Abdul Hamid bin Hj Omar:
Assuming that Tun Salleh had claimed that there are some other things he should have been told, but were not told, would you tell us how long did he really stay there? How long did he stay there, or the Prime Minister asked him to go?

Tan Sri Sallehuddin Mohamed:
The Prime Minister did not ask him to go.  It was roughly 5 to 6 minutes.  I recall it was quite a short meeting.

Tan Sri Dato Abdul Hamid bin Hj Omar:
Why was that?

Tan Sri Sallehuddin Mohamed:
Tun Salleh said that he cannot accede to the request of the Agong.  He said it is up to the Prime Minister to do. Then he left. That is about the gist of all.

Tan Sri Dato Abdul Hamid bin Hj Omar:
You mean he just stood up and left.

Tan Sri Sallehuddin Mohamed:
Yes, he said there is nothing more for us to discuss.  He said he has got job to do and he stood up and shook hands with the Prime Minister, Deputy Prime Minister and myself and left.

Tan Sri Mohamed Zahir Ismail:
Nothing was mentioned about the UMNO cases?

Tan Sri Sallehuddin Mohamed:
I cannot recall.

Tan Sri Mohamed Zahir Ismail:
Did you take any note?

Tan Sri Sallehuddin Mohamed:
Yes, I took note.  I had a notebook and I jotted down as they were speaking.

Tan Sri Mohamed Zahir Ismail:
In your note book was there any mention about UMNO cases?

Tan Sri Sallehuddin Mohamed:
No.  My note book only mentions two things.  That Lord President wrote the letter to the Agong and speeches made against Government interest.  These are in my note book.  I cannot recall him saying anything about UMNO.

Tan Sri Dato Abdul Hamid bin Hj Omar:
Have you got the note book?

Tan Sri Sallehuddin Mohamed:

Tan Sri Dato Hamid bin Hj Omar:
I think that would be all.

The questioning of the above witness, in particular, shows the assurances previously given that the Tribunal would act fairly, to be hollow.  Why was it that this witness, who was there to take notes of what transpired at the meeting of 25 May, could not answer positively to the question as to whether or not the matter of the UMNO cases was mentioned: his answer that he “cannot recall”  (said on three occasions) is most evasive.  Since his evidence was that he had jotted down notes “as they (the Prime Minister and I) were speaking” and that his notebook made no “mention about the UMNO cases”, why did he not make a straightforward denial.  His repeated statements that he could not recall needed to be explained.

In the light of the inconclusive reply, why did the Chairman stop short of asking for the notebook to be produced as an exhibit for reference. It does not require any expert legal knowledge to know that the notebook would be material to corroborate or disprove what the witness said.  Where the proceedings take on the nature of an enquiry, as here, it would be the duty of the Tribunal itself to get at the truth of the matter.  

In this regard, too, the Attorney-General’s superficial questioning of this witness contradicts the assumed role he was given by the Tribunal’s Rules of Procedure: there was, on his part, no attempt at all to ascertain the truth.

To make a finding against me on the evidence of this witness (that he could not recall whether the UMNO cases were mentioned at the meeting) is irrational: no reasonable tribunal would or could have come to such a finding on such evidence.

It is a matter of record that, on 27 May 1988 (the day I received the letter of suspension), Tan Sri Abdul Hamid bin Omar, in his capacity of Acting Lord President, adjourned to a date to be fixed the UMNO appeal (which I had a few days earlier fixed for hearing for 13 June before a full Bench of nine Supreme Court judges).  It is also a matter of public record that that appeal was subsequently fixed by Tan Sri Abdul Hamid for hearing for 8 August but before a panel of only five judges, made up of three Supreme Court judges (himself, Tan Sri Hashim bin Yeop Abdullah Sani and Tan Sri Lee Hun Hoe) and two High Court judges nominated to sit in the Supreme Court by Tan Sri Abdul Hamid.  

My suspension following so closely from my decision to fix the hearing of the UMNO appeal and the even more prompt action to adjourn the hearing (taken almost simultaneously following upon the service on me of the letter of suspension), show the importance of the UMNO appeal in this affair.

One fact stands out from the Report.  The Tribunal’s objective by the “enquiry” seemed to have been to look for proof of my “guilt” on the charges framed against me.  Instances of bias on the part of the Chairman have been shown from the way questions were asked of witnesses.  His suggestion to the Chief Registrar that the granting of the order of adjournment sine die was “something out of the ordinary” and his stopping short of calling for the production of the notebook from Tan Sri Sallehuddin were most revealing.

In many instances, he allowed inferences and assumptions to be drawn from facts which he personally knew were incorrect: he did not inform the Tribunal of the circumstances which led to the Judges’ meeting of  25 March 1988 (where he was present) and which led to the letter dated 26 March being sent to the Yang di-Pertuan Agong and the Rulers.

On the Allegations against me, the Tribunal did not seem to have addressed its mind at all to the disclosure made by the Statement issued by the Prime Minister’s Department dated 31 May 1988, that it was the Yang di-Pertuan Agong who initially wanted me removed.  There was no mention in that Statement of the other representations said to have been made by the Prime Minister to the Yang di-Pertuan Agong on 25 May.  

That there were such representations made by the Prime Minister were disclosed in the Charges which were served on me on 17 June; but my solicitors’ request to be furnished with a copy of those representations (made by their letter dated 21 June) met with the response stating essentially that the representations were in the documents containing the Charges.  Astonishingly, copies of what purported to be the representations were given to my solicitors in Court only on 14 July, when they were tendered to the Court, and even then not verified by any affidavit or authenticated in any form.

From  the onset I had reservations on the object of the Tribunal and the integrity of its proceedings.  I had objected to both its composition and its procedure but my applications for an adjournment for good cause was also rejected.  All these led me to conclude that the Tribunal was not going to act fairly.  Looking at the Report now, I do not have any doubt that my decision not to participate in the proceedings was right, no matter what the Tribunal members may now suggest.

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Source: AM Vol.8 No.6, 1988

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