1988 Judicial Crisis - Supreme Court Suspended
Malaysiakini
Sep 14, 2006
George Seah

This article will deal with the suspension of the five judges of the Supreme Court by the Yang Di-Pertuan Agong on the recommendation of the Prime Minister Dr Mahathir Mohamad following a complaint by the acting Lord President Abdul Hamid.

The comments made here represent the personal views of the writer and are bona fide in the interest of justice.

Article 125(1) of the Federal Constitution provides that a judge of the Supreme Court shall hold office until he attains the age of 65 years or such later time, not exceeding six months, as the Yang Di-Pertuan Agong may approve.

According to Article 125(2) a judge of the Supreme Court may resign his office in writing under his hand addressed to the Yang Di-Pertuan Agong, but he shall not be removed from office except in accordance with the following provisions of the Article, namely:

(3) If the Prime Minister, or the Lord President after consulting the Prime Minister, represents to the Yang Di-Pertuan Agong that a judge of the Supreme Court ought to be removed on the grounds of misbehaviour or of inability, from infirmity of body or mind or any other cause, to properly discharge the functions of his office, the Yang Di-Pertuan Agong shall appoint a tribunal in accordance with Clause 4 and refer the representation to it; and may on the recommendation of the tribunal remove the Judge from office.

(4) The said tribunal shall consist of not less than five persons who hold or have held office as judge of the Supreme Court, the Court of Appeal or a High Court, or, if it appears to the Yang Di-Pertuan Agong expedient to make such appointment, persons who hold or have held equivalent office in any other part of the Commonwealth, and shall be presided over by the member first in the following order, namely the Lord President of the Supreme Court, the Chief Judges according to their precedence among themselves, and other members according to the order of their appointment to an office qualifying them for membership (the older coming before the younger of two members with appointments of the same date).

(5) Pending any reference and report under Clause 3 the Yang Di-Pertuan Agong may, on the recommendation of the Prime Minister and, in the case of any other judge, after consulting the Lord President, suspend a Judge of the Supreme Court from the exercise of his function.

PM cannot suspend highest court

It should be pointed out that Article 125 regulates the suspension and removal of a judge of the Supreme Court. The Article does not provide for suspension and removal of more than one judge of the Supreme Court. This is understandable because the Prime Minister has not been vested with power under the Federal Constitution to suspend the Supreme Court, which is the third pillar of a parliamentary democracy.

Similarly, the King can remove the Prime Minister on constitutional grounds but, with great respect, has no power under the Federal Constitution to suspend Parliament. A fortiori, the Yang Di-Pertuan Agong has no vested power even under Article 150 of the Federal Constitution to suspend Parliament.

In my opinion, the subsequent suspension of the five judges of the Supreme Court following the suspension of the incumbent Lord President, Salleh Abas, was tantamount to the suspension of the Supreme Court. Nobody seems to have questioned the legality of the suspension of the five judges of the Supreme Court at the material time and this constitutional point was not determined by the Tribunal set up to investigate the charges against the five judges of the Supreme Court.

One of the charges relates to the interpretation of section 9(1) of the Courts of Judicature Act 1964 and Article 131A of the Federal Constitution.

All the five judges of the Supreme Court were unanimous in their interpretation of section 9(1) of the 1964 Act in that the acting LP, Abdul Hamid, could not exercise the powers or perform the duties of his office (including his functions under the Constitution) by virtue of being appointed Chairman of the Tribunal set up under Article 125(4) of the Federal Constitution to investigate the charges against the incumbent LP, Salleh Abas.

A fortiori, the acting LP should distance himself from being involved, directly or indirectly, in any court proceedings brought by Salleh Abas.

To hold otherwise, would rightly make a mockery of the independence and impartiality of the judiciary, in the eyes of the general public. Acting LP Abdul Hamid seemed to think that he could continue to give directions pertaining to the civil suit filed by the suspended incumbent LP, Salleh Abas, even while Abdul Hamid, was presiding over the tribunal to investigate the charges against Salleh Abas.

The record would tend to show that the acting LP was keeping a keen eye on the development of the High Court application before Ajaib Singh J when he was chairman of the tribunal investigating Salleh Abas.

Acting LP needed my consent

The charge against me was that I preferred to accept the direction of the presiding judge Wan Sulaiman and return to Kuala Lumpur to that of acting LP Abdul Hamid, who directed me to remain in Kota Bharu and act as the new presiding judge, with Harun as the third member. I was thus found guilty of ignoring the directive of the acting LP Abdul Hamid.

I think in order to understand the charge, it is important to recapitulate the material background facts:

Firstly, I was not in the original coram of the Kota Bharu Supreme Court in July 1988 which consisted of: Salleh Abas (Presiding), Wan Sulaiman and Hashim Yeop Sani.

Following the suspension of Salleh Abas, the new coram was made up of Wan Sulaiman (Presiding), Hashim Yeop Sani and Harun Hashim (newly appointed from the High Court to the Supreme Court in 1988).

During critical and crucial times in the history of a nation, judges are expected to be the standard-bearers of justice.

When Hashim Yeop Sani was unable to go to Kota Bharu, the acting LP asked whether I could take Hashim Yeop Sani’s place, as a member of the Supreme Court.

It should be remembered that I did not go to Kota Bharu to be the presiding judge of the Supreme Court. A fortiori, and with respect, the acting LP had no jurisdiction/power to direct me to be the presiding judge without my consent.

The acting LP cannot invoke the provisions of section 38(2) of the Courts of Judicature Act 1964 because the sub-section postulates that the incumbent Lord President was the presiding judge in a 3-member panel. In the absence of the LP, the senior member of the Court shall preside and the senior member must be deemed to know the provisions of Section 38(2) and must also be deemed to have consented.

Every member of the Supreme Court is of equal status and the LP is only the Head of the Court. As head, the LP has no power to direct another member of the Supreme Court to do anything without consent. When a coram of the Supreme Court is fixed, whether consisting of three, five, seven or nine judges, every member is deemed to have given his consent when he agrees to be a member of the panel.

Why I rejected the acting LP's requests

In this instance, I only agreed to fly to Kota Bharu to be a member of the coram to be presided over by Tan Sri Wan Sulaiman, a senior judge. When Tan Sri Wan Sulaiman failed to turn up, the acting LP cannot invoke section 38(2) of the 1964 Act because it did not apply. This subsection can only apply in the absence of the LP in that coram — only then the senior member of the court shall preside. The presiding judge of the Supreme Court carries a certain heavy responsibility and his consent must be sought before making the appointment.

I rejected the request of the acting LP to remain in Kota Bharu and act as the new presiding judge for the following reasons:

Firstly, I held and still hold the view that the acting LP had no constitutional power to direct me to be the presiding judge of the Kota Bharu sitting of the Supreme Court in July 1988 without my consent as I had only agreed to go there to take the place of Hashim Yeop Sani. I had never agreed to be the presiding judge with the most junior judge of the Supreme Court, Harun and another junior High Court Judge to be appointed by the Acting LP, i.e. the resident Judge of the Kota Bharu High Court, in order to make up a 3-member panel.

Secondly, in my view, the laws of master and servant do not apply to judges of the Supreme Court and to hold otherwise, would impinge on the independence and impartiality of the Supreme Court Judges.

Thirdly, the Kota Bharu Supreme Court cannot sit in session because the two of us, Harun and myself, did not and could not constitute the coram under Section 38(1) of the Courts of Judicature Act 1964 which states: 

“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 ...

Fourthly, I held — and still hold the view — that Wan Sulaiman’s interpretation of section 9(1) of the Courts of Judicature Act 1964 was correct. Four other members of the Supreme Court — namely myself, Mohamed Azmi, Abdoolcader and Wan Hamzah — concurred with this view. All of them were later suspended.

Lastly, I think history will exonerate me for taking a stand and making the right decision in rejecting the request of the Acting LP to remain in Kota Bharu and preside over the sitting of the Supreme Court there without first obtaining my consent.

It is interesting to observe that during the whole episode, the acting LP did not at any time try to speak to Wan Sulaiman. All or almost all the requests had been directed to me in Kota Bharu.

History will be my judge

From a historical point of view I think I should mention:

a) (i) A judge of the Superior Court has never ever been dismissed from High Office on the grounds that he ignored the directions of the Chief Justice.(ii) But I do remember a Chief Justice of England was executed when he failed to obey the orders of the King. In modern times a Chief Justice was reported to have disappeared when General Idi Amin became President of Uganda, following a military coup.

b) I do not recall a judge of the Supreme Court having been dismissed when his interpretations of the law differed from that of his Chief Justice.

c) I do not recall the President of any country having ever acted to suspend the Supreme Court. This could only happen following a revolution.

i) I think King George III tried to suspend Parliament and lost his throne instead.

ii) After a coup d’ etat, a military leader may suspend all forms of government arbitrarily and unlawfully.

Having said that, let me stress that history will be the judge whether or not I was guilty of misbehaviour as charged for faithfully discharging the functions of a judge of the Supreme Court of Malaysia conscientiously and with the highest regard for the preservation of an independent judiciary.

During critical and crucial times in the history of a nation, judges are expected to be the standard-bearers of justice. This is a moral obligation and under the circumstance they are expected to act positively and with a clear conscience.

The five of us who were embroiled in this difficult episode of the 1988 judicial crisis did not rally around the suspended LP but rather responded to the call of duty in the interest of justice.

No matter how facts are twisted, in the eyes of god, truth will prevail from the 1988 judicial crisis.