1988 Judicial Crisis - Colonels Judging the Generals?
Malaysiakini
Sep 15, 2006
George Seah

Firstly, the aftermath of the suspension of the Lord President, Salleh Abas, unfortunately prevented the learned judge from being the first LP to preside over a historic coram of nine judges of the Supreme Court to hear the long-awaited Umno 11 appeal.

Indirectly, the full bench of the Supreme Court was stopped from hearing and determining the validity and legality of the controversial 1987 Umno presidential election. The outcome of that decision would have decided who would have become the legitimate Prime Minister of Malaysia.

By convention, the Yang Di-Pertuan Agong would invite the president of Umno to form the executive branch of the government. It is therefore clear to every member of Umno that in order to be eligible to be Prime Minister of Malaysia, he had to be legitimately elected the president of the party.

Following the suspension of the LP, the Umno 11 appeal was subsequently heard and disposed of by another panel of the Supreme Court consisting of both Supreme Court and High Court judges and presided over by Hamid Omar. The panel of judges comprised Hamid (acting LP and chairman of the first tribunal set up to investigate the charges against Salleh); Lee Hun Hoe; Hashim Yeop Sani; Mohamad Yusof and Gunn Chit Tuan.

The appeal was dismissed on Aug 9, 1988, one day after Salleh was officially removed from office. I will have something to say later about the High Court judges who were appointed to hear this Umno 11 appeal.

The general public would be interested to know which of the two corams of the Supreme Court, should actually have heard and determined the Umno 11 appeal, which would have indirectly decided the destiny of the country - the one that was to be presided by the LP Salleh Abas, and made up of a full bench of nine judges of the Supreme Court, or the second panel consisting of both the judges of the Supreme Court and High Court and presided over by Hamid? 

The suspension of the five judges of the Supreme Court had effectively prevented/barred these judges from hearing and determining the constitutionality, legality and validity of the tribunal that was set up to investigate the charges brought against the incumbent LP Salleh Abas.

If these judges of the Supreme Court were to rule that the tribunal investigating the LP had not been constitutionally, legally, validly and properly constituted — a high probability considering the fact that a majority of the members who made up the said tribunal were not eligible and qualified to sit — the effect of such a ruling would have been horrendous for the government.

A failed revolution

I have already touched on the constitutionality, legality and validity of the suspension of five Judges of the Supreme Court. I had pointed out that the Federal Constitution only provides for the suspension and removal of a Judge of the Supreme Court on the grounds of misbehaviour or of inability, from infirmity of body or mind or any other reason, properly to discharge the functions of his office.

It is my considered opinion that the suspension of the five Supreme Court judges, coupled with the suspension of the incumbent LP, Salleh Abas — which amounted to 6 out of 10 members or 60 per cent of the Supreme Court — was tantamount to the suspension of the entire Supreme Court.

The Federal Constitution does not, directly or indirectly, contain any provision whatsoever for the suspension of the Supreme Court. It must be remembered that the Supreme Court is the third branch of the government based on parliamentary democracy with its inherent rights. Britain’s King George III tried to interfere with the Judiciary and was subsequently dethroned.

Some 20 days after the Supreme Court of five Judges issued an interlocutory order restraining the Salleh Abas tribunal from presenting its recommendations to the Yang Di Pertuan Agong — pending the hearing and disposal of the civil suit that had been filed in the Kuala Lumpur High Court challenging the constitutionality, legality and validity of the composition of the said tribunal — another Supreme Court was hurriedly convened.

This comprised two judges of the Supreme Court, namely Hashim Yeop A Sani and Harun Hashim and three High Court Judges, (namely Mohd Yusof, Anuar and Gunn Chit Tuan). This hurriedly assembled Supreme Court set aside the interlocutory order issued by the 5-member Supreme Court made up of Wan Sulaiman (presiding), George Seah, Mohd Azmi, Abdoolcader and Wan Hamzah.

I will pause to recall that Wan Sulaiman invited Hashim Yeop Sani to be one of the members of the Supreme Court in the belief that there was strength in numbers. The latter declined, saying, “We would be staging a revolution” — a preposterous statement, according to the late Abdoolcader.

Based on the number of judges of the Supreme Court sitting in the two corams — five in the first Supreme Court and two in the second Supreme Court — it was clearly established there were five judges who were of the unanimous opinion that Wan Sulaiman had the power to act under section 9(1) of the Courts of Judicature Act 1964 read with Article 131A of the Federal Constitution.

In contrast only two Supreme Court Judges and three High Court Judges in Malaya were of the view that Wan Sulaiman did not have such power when he convened the secial sitting of the Supreme Court on July 2, 1988, which issued the interlocutory order restraining the Salleh Abas’s tribunal from “submitting any recommendation report or advice” to the Yang Di-Pertuan Agong.

‘Colonels’ sitting in judgment

It is now up to the general public to judge which panel of the Supreme Court was right in the legal interpretations of section 9(1) of the Courts of Judicature Act 1964 and the provisions of Article 131A of the Federal Constitution: the one presided by Wan Sulaiman or the one presided by Hashim Yeop Sani. It is up to the citizens of this nation to conclude which Supreme Court acted in the best interest of justice.

It is true that the second tribunal which was set up to deal with the charges against the five judges of the Supreme Court later ruled that Wan Sulaiman intentionally convened the July 2 1988 sitting of the Supreme Court in contravention of sections 38(1) and 39(1) of the Courts of Judicature Act 1964 and without the permission or knowledge of the acting Lord President, Abdul Hamid.

It also ruled that such conduct reflected an irresponsible and improper attitude and tarnished the image of the judiciary and it was unbecoming of a person holding the office of a Supreme Court judge.

It is pertinent to point out that the majority judgment of the tribunal was signed by Edgar Joseph Jr, Mohd Eusoff Chin and Lamin, all judges of the High Court in Malaya.

There were 26 Judges of the High Court in Malaya in 1988 and according to the list of High Court in Malaya published by the MLJ Vol 1, it would appear that Edgar Joseph Jr was ranked No. 13, Mohd Eusoff Chin ranked No. 14, and Lamin ranked No. 25.

To use military jargon, young colonels were appointed to sit in judgment against generals. It is a very apt description of this sad episode in our judicial history. It was an episode which plunged the judiciary into depths of despair.

I think it needs to be pointed out that there were at least ten judges of the High Courts in Malaya and Borneo then who were more senior than the three judges in the second tribunal. Ranks were ignored and apparently bypassed with scant respect for justice.

I leave it to the general public to judge for themselves the rationale for such appointments to the second tribunal. When seniority did not count, when merit was of no consequence, what then was the criteria?

Unsurprisingly, all the High Court judges who were involved in the Umno 11 appeal, in the Salleh Abas’ civil suit and the interlocutory order and those in the second tribunal set up to deal with the charges against the five judges of the Supreme Court were eventually elevated to the Supreme Court. Three of them were later appointed Chief Justices of the High Court in Malaya.

The three Malaysian High Court judges in the second tribunal who delivered the majority decision recommending the dismissal of Wan Sulaiman and George Seah were all appointed to the Supreme Court. One of them was subsequently appointed Chief Justice of the Federal Court (the Supreme Court of Malaya was later renamed the Federal Court) and another promoted as president of the Court of Appeal.

Even Ajaib Singh, who first heard and refused a temporary stay in the High Court in Kuala Lumpur, was later elevated to the Supreme Court.

Time for a judicial commission

There is yet another matter that needs to be mentioned. There was even a very serious allegation by the acting Lord President in his representation to the Yang Di-Pertuan Agong that he was informed that the five judges of the Supreme Court “took the Seal from the Supreme Court registry even though the office was closed and the officers had gone home”.

But the tribunal held that the acting Lord President was without doubt misinformed about this preposterous matter. It is, however, pertinent to note that no disciplinary action was instituted against the officer who supplied him with this false information.

I come to the most important constitutional issue arising from the aftermath of the 1988 judicial crisis.

The Federal Constitution is modeled along the lines of a parliamentary democracy, and the government is made up of the executive, parliament, and judiciary.

Each branch holds equal status and each branch has been assigned specific functions to perform their respective duties. In terms of protocol, the Prime Minister is the first among equals followed by the speaker of the house of parliament and the Lord President of the Supreme Court (now known as the Chief Justice of the Federal Court of Malaysia).

Since the Prime Minister and the Chief Justice hold equal rank constitutionally but bearing in mind that the Prime Minister is only the first amongst the three equals (the other being the speaker of parliament) I think, it is illogical to vest in the Prime Minister alone, the sole power to recommend to the Agong the appointments of the Chief Justice, judges of the Supreme Court and High Courts in Malaysia.

This power to make such recommendations should rest with the Judicial Commission. This anomaly appears to have been recognised and accepted by the British government in recent years. As a consequence of this, the British government has enacted a law setting up a judicial commission with plenary powers to appoint judges in the higher judiciary in England.

I think the first Commonwealth country to remove the power of appointments of the higher judiciary by the Prime Minister was Sri Lanka.

Serious consideration ought to be given to amending the federal constitution to transfer the power of appointments of judges in the higher judiciary from the Prime Minister (as is the present practice) to an independent judicial commission to be set up by parliament.

This is aimed at avoiding a repetition of the 1988 judicial crisis and to ensure that the appointments to the Supreme Court and the High Courts in Malaysia are transparent and fair.

I think I should give my personal views on the composition of members of the proposed judicial commission.

In the first place, the Prime Minister must not be involved, directly or indirectly, in these appointments. It follows that I am not in favour of the Prime Minister being appointed chairman of the judicial commission. A fortiori, I am also against the Prime Minister nominating a person to be chairman of the judicial commission.

In my view, the chairman of the commission which is meant to be an independent and impartial body, should be the leader of the Opposition in Parliament, with the Chairman of the Bar Council of Malaysia, as his deputy.

As regards the other members of the judicial commission, the details can be worked out after hearing the views of the people of Malaysia, if the proposal is acceptable in principle.

If the federal constitution is to be amended to cater for this change, perhaps opportunities should be given to the people to put forward suggestions to amend the Constitution to prevent the Prime Minister from holding more than one portfolio in the Cabinet at any time. This would be in line with the principles of parliamentary democracy.

A furious Abdoolcader

I would like to take this opportunity to relate a conversation I had with the late Abdul Kadir, the former Attorney-General of the Federation of Malaysia.

When I was appointed a Judge of the High Court in Borneo in 1969 I was under 38 years of age. According to the Judges’ Remuneration Act, I would be eligible to a Judge’s pension after completing 15 years of service and the pension would be equivalent to one-half of the last drawn salary.

I told the late Abdul Kadir jokingly that after the year 1984 I would theoretically be working on half-pay. He replied: “George, that is true but we need experienced judges in the higher judiciary ... ”

I recalled this conversation with the late Abdul Kadir when I was in Kota Baru, Kelantan, vacillating whether to obey Wan Sulaiman’s request to return to Kuala Lumpur or the directive of the acting Lord President, Abdul Hamid, to stay put in Kota Baru. Yes, we need experienced judges in the higher judiciary who can think independently and remain upright without betraying their conscience or sacrificing justice for personal aggrandisement.

For the purpose of posterity I think I should mention that prior to the hearing by the second tribunal of the charges against the five suspended judges of the Supreme Court of Malaysia, there was an attempt to ask all the judges concerned to admit that they were wrong in convening and attending the special session of the Supreme Court of July 2, 1988 without the permission or the knowledge of the acting LP, Abdul Hamid, (in contravention of the provisions of sections 38(1) and 39(1) of the Courts of Judicature Act 1964) and that they should apologise to the acting LP.

This suggestion was unanimously shot down by all the five judges (having regard to our judicial interpretations of section 9(1) of the 1964 Act read with Article 131A of the Federal Constitution).

As a matter of fact, the late Abdoolcader was furious with such a preposterous idea as all the five judges of the Supreme Court were of the same opinion that Wan Sulaiman had acted correctly and properly pursuant to section 9(1). When you have committed no wrong and your conduct is in keeping with the law, where is the justification for pleading guilty and apologising?

I would like to end this series with a reference to the great and famous Socrates:

On one occasion, Socrates refused to obey orders that were given him because he believed that such obedience would involve him in doing what he thought to be wrong. In a very inspiring way he stood his ground, “I did not care a straw for death; but that I did care very much indeed about doing wrong”.

Socrates believed fervently that if a man knew a thing was wrong he should not do it and that those who knew what was right should always do it.

The greatest misfortune that could befall a man was to do a wrong deliberately and the greatest crime a man could commit against his state was to break the laws knowingly.

Socrates was speaking about obeying orders. It is equally applicable to all the judges of the Supreme Court who are of equal rank and status, and the LP or the acting LP, for that matter, is merely the first amongst equals.

Abdul Hamid, with great respect, had no right to give me any order without my consent, because to do so would impinge on the independence of the judges of the Supreme Court.