Malaysia: Crisis in the judiciary - Part 2

by Datuk George Seah
Aliran Monthly 2004:5

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Seah: The Lord President is not beholden to the PM

In my last article I mentioned that it was during the scheduled sitting of the Supreme Court in Ipoh that the Lord President, Tun Salleh Abas, finally decided to appoint a panel of nine judges of the Supreme Court to hear the UMNO 11 appeal. The Senior Assistant Registrar of the Supreme Court was directed to notify the appellants� solicitors to:

Prepare additional records of appeal for the six extra judges
Inform the parties� solicitors that the appeal had been fixed for hearing on 13 June 1988 in Kuala Lumpur

These instructions were given in the presence of the late Tan Sri Hashim Yeop Sani and me.

We all know that a few days after this momentous decision, Tun Salleh Abas was suspended as Lord President of the Supreme Court and the appeal of UMNO 11 was not heard on 13 June 1988.

Back from Borneo; straight to Kota Baru

I also mentioned that when I returned from attending a sitting of the Supreme Court in the Borneo States in June 1988 I found a letter on my table of my chambers signed by the acting Lord President, Tan Sri Hamid Omar asking me whether I could take the place of Tan Sri Hashim Yeop Sani in the forthcoming scheduled Supreme Court sitting at Kota Baru. The acting Lord President knew that:

I had just returned from a sitting of the Supreme Court in Borneo (taking the place of Tan Sri Mohamed Azmi, who was unable to go for personal reasons),

I had completed a scheduled sitting of the Supreme Court in Ipoh in May 1988 with Tun Salleh Abas (presiding) and Tan Sri Hashim Yeop Sani, and

Why did the acting Lord President want me to go to Kota Baru and indirectly out of Kuala Lumpur when he was aware that I had been involved in sittings in the Supreme Court in February, May and June 1988 and when there were three other judges of the Supreme Court who were free and readily available, namely, Tan Sri Mohamed Azmi, Tan Sri Abdoolcader and Tan Sri Wan Hamzah?

The original coram was made up of the following: Tun Salleh Abas (presiding), Tan Sri Wan Sulai-man and Tan Sri Syed Agil.

When Tan Sri Syed Agil retired he was replaced by Tan Sri Hashim Yeop Sani. After Tun Salleh Abas was suspended, Tan Sri Wan Sulaiman became the presiding judge and the other members were Tan Sri Hashim Yeop Sani and Datuk Harun Hashim.

For some unknown reasons, Tan Sri Hashim Yeop Sani was unable to go to Kota Baru in July 1988 and the acting Lord President had asked me to take his place � notwithstanding that I had just returned from sitting in the Borneo States and three judges of the Supreme Court were available at that point in time.

Why did they want me out of KL?

...the Prime Minister has no power to direct the Lord President of the Supreme Court to come and see him in his office.

I ventured to suggest why certain people wanted me out of Kuala Lumpur in July 1988 and the reason was contained in section 44 of the Courts of Judicature Act 1964, which reads:

Incidental directions and interim orders
44(1) In any proceeding pending before the Supreme Court any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent injustice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a Judge of the Supreme Court.
(2) Every application under subsection (1) shall be deemed to be a proceeding in the Supreme Court.
(3) Every order so made may be discharged or varied by the Full Court.

During the time when I was a Judge of the Supreme Court from 1983 to 1988, I had occasions to invoke this provision by granting ex parte application for an interlocutory injunction on condition that Notice of Appeal be filed and by the applicant�s solicitors the following day. Tan Sri Hashim Yeop Sani definitely knew of the interlocutory injunctions/orders made under this section. Furthermore, if Tan Sri Wan Sulaiman was to fly to Kota Baru to preside over the schedule sitting of the Supreme Court in July 1988 I would be the most senior judge of the Supreme Court in residence in Kuala Lumpur due to the absence on official duties of the undermentioned Judges, namely:

Tun Salleh Abas, President, under suspension
Tan Sri Hamid Omar, Chief Justice of the High Court in Malaya, and
Tan Sri Lee Hun Hoe, Chief Justice of the High Court in Borneo, on duty in the Tribunal to consider the charges against Tun Salleh Abas
Tan Sri Wan Sulaiman in Kota Baru

The practice at the time was for the senior judge of the Supreme Court to deal with urgent ex parte application made under the provisions of section 44 of the Courts of Judicature Act 1964.

PM Cannot Summon Top Judge To His Office

I will pause here to say a few words about the Supreme Court � the third pillar which supports the framework of government based on parliamentary democracy. The other pillars are Parliament and the Executive. Each of them has been assigned different functions, namely

Parliament (which is made up of MPs elected by the People) to enact laws
Executive (Cabinet) to govern the country, and
the Supreme Court (i) to decide the constitutionality and legality of laws passed by Parliament, (ii) to determine disputes between the Federation and state(s) or between state and state in the Federation, as well as (iii) disputes between Federation and people, between state and people and between people and people.

Each of the three pillars is accorded the same status and position and the question of supremacy does not arise, if one understands the concept of parliamentary democracy. What this mean in layman�s terms is simply this:

That the Prime Minister has no power to direct the Lord President of the Supreme Court to come and see him in his office. If the Prime Minister of the Federation wishes to see the Lord President of the Supreme Court, he must find a neutral venue for the purpose. In short, the Lord President is not beholden or subservient to the Prime Minister.

I think it is convenient for me to touch on the position of Judges of the Supreme Court.

Judges of the Supreme Court are equal in status and the Lord President is merely the first among the ten members of the Supreme Court. What this means in practice is this:

The Lord President has no power to direct any Judge of the Supreme Court to do this or that without his consent; to construe otherwise would impinge on his independence, which is the cornerstone of the impartiality of the Supreme Court.

This was accepted and recognised by the acting Lord President, Tan Sri Hamid Omar, when he sent me a letter (following my return after completing a session of the Supreme Court in the Borneo States) asking me whether I was free to replace Tan Sri Hashim Yeop Sani in the forthcoming sitting of the Supreme Court at Kota Baru in July 1988. I should point out that the acting Lord President did not direct me to replace Tan Sri Hashim Yeop Sani but asked whether I was free to do so. This is important because subsequent events would show that this accepted constitutional position of the Judges of the Supreme Court seems to have been disregarded.

Being a conscientious Judge of the Supreme Council, I informed the acting Lord President that I would be free to take the place of Tan Sri Hashim Yeop Sani albeit there were three other Judges available at that time, namely Tan Sri Mohamed Azmi, Tan Sri Abdool-cader and Tan Sri Wan Hamzah. Following my acceptance, the composition of the Kota Baru Supreme Court would consist of:

Tan Sri Wan Sulaiman (presiding)
Datuk George Seah and
Dato Harun (who had just been elevated from the High Court to the Supreme Court in 1988).

Conflicting requests

Dato Harun and I flew to Kota Baru in the morning and checked into our hotel. In the afternoon I received a telephone call from Tan Sri Wan Sulaiman telling me that he had decided to remain in Kuala Lumpur and asked me to return, if possible the same day. This means that the Kota Baru session of the Supreme Court would be cancelled. I informed Dato Harun about the contents of Tan Sri Wan Sulaiman�s message and that I would be flying back to Kuala Lumpur the same afternoon if I could manage to get a seat in the plane. Dato Harun was non-committal. I then went out for a walk in Kota Baru town and to check with MAS office about the availability of seats to Kuala Lumpur.

When I returned to the hotel, the front-desk clerk informed me that Dato Harun would like to see me in his room. I went up and saw him. Dato Harun relayed a message from acting Lord President Tan Sri Hamid Omar directing me (i) to remain in Kota Baru and (ii) to take over from Tan Sri Wan Sulaiman as the presiding judge of the Supreme Court sitting. As there were only two judges of the Supreme Court in Kota Baru at that point of time, namely myself and Dato Harun, I listened in silence, having regard to the provisions of section 38(1) of the Courts of Judicature Act 1964 that

�Subject as hereinafter provided every proceeding in the Supreme Court shall be heard and disposed of by three Judges or such greater uneven number of Judges as the Lord President may in any particular case determine ...�

I returned to Kuala Lumpur the same evening after notifying Dato Harun accordingly.

I will explain why I took this course of action in my next article.

This is the second in a series of articles on the events leading up to the 1988 judicial crisis.

Now e-mail us and tell us what you think. Your comments might be published in the Letters section of our print magazine, Aliran Monthly.

The whole series:

Part 1 - The hidden story
Part 2 - Something's brewing in KL
Part 3 - Drama in the capital
Part 4 - The suspension of the Supreme Court
Final part - Colonels judging the generals?