1988 Judicial Crisis - Something's Brewing in KL
Malaysiakini
Sep 12, 2006
George Seah

In my article yesterday I mentioned that it was during the scheduled sitting of the Supreme Court in Ipoh that the Lord President 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:

   1. Prepare additional records of appeal for the six extra judges;

   2. Inform the parties’ solicitors that the appeal had been fixed for hearing on 13 June 1988 in Kuala Lumpur;

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

We all know that a few days after this momentous decision, 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 Hamid Omar asking me whether I could take the place of 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 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 Salleh Abas (presiding) and Hashim Yeop Sani, and

    * I had also finished a scheduled sitting of the Supreme Court in Penang in February 1988 where the presiding Judge was Hamid Omar (Chief Justice of the High Court in Malaysia), Abdoolcader and me.

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, Mohamed Azmi, Abdoolcader and Wan Hamzah?

The original coram was made up of the following: Salleh Abas (presiding), Wan Sulaiman and Syed Agil.

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

For some unknown reasons, 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?

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. Hashim Yeop Sani definitely knew of the interlocutory injunctions/orders made under this section.

Furthermore, if 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 Salleh Abas (President, under suspension); Hamid Omar (Chief Justice of the High Court in Malaya), and Lee Hun Hoe (Chief Justice of the High Court in Borneo), on duty in the Tribunal to consider the charges against Salleh Abas.

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 that 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 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 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 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 Hashim Yeop Sani albeit there were three other Judges available at that time, namely Mohamed Azmi, Abdoolcader and Wan Hamzah. Following my acceptance, the composition of the Kota Baru Supreme Court would consist of Wan Sulaiman (presiding), George Seah and Harun (who had just been elevated from the High Court to the Supreme Court in 1988).

Conflicting requests

Harun and I flew to Kota Baru in the morning and checked into our hotel. In the afternoon I received a telephone call from 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 Harun about the contents of 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. 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 Harun would like to see me in his room. I went up and saw him. Harun relayed a message from acting Lord President Hamid Omar directing me (i) to remain in Kota Baru and (ii) to take over from 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 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 Harun accordingly.