|Crisis in the Judiciary|
|Saturday, 01 May 2004 12:00am|
Page 3 of 5Part III: Drama in the capital
Dato Harun stays back in Kota Baru while Datuk George Seah flies back to Kuala Lumpur
In my previous article I said I would explain why I returned from Kota Baru to Kuala Lumpur. To have a better understanding I need to recapitulate the relevant facts:
Firstly, the original panel of the Kota Baru sitting of the Supreme Court consisted of Tun Salleh Abas (presiding); Tan Sri Wan Sulaiman and Tan Sri Hashim Yeop Sani.
After the suspension of the Lord President, Tun Salleh Abas, the new coram was made up of Tan Sri Wan Sulaiman (presiding), Tan Sri Hashim Yeop Sani and Dato Harun Hashim.
When Tan Sri Hashim Yeop Sani was unable to go to Kota Baru for personal reasons, the acting Lord President, Tan Sri Hamid, asked me — following my return from a sitting of the Supreme Court in the Borneo States when I agreed to replace Tan Sri Mohamed Azmi — whether or not I was agreeable to taking the place of Tan Sri Hashim Yeop Sani. I agreed albeit there were three other Judges of the Supreme Court who were available at that point of time, namely Tan Sri Mohamed Azmi, Tan Sri Abdoolcader and Tan Sri Wan Hamzah. It was abundantly clear that somebody wanted me out of Kuala Lumpur although I did not see the point at that time.
When I was in Kota Baru with Dato Harun, I received the undermentioned messages:
Why I flew back to KL
After due consideration I preferred and accepted the suggestion of Tan Sri Wan Sulaiman to that of the Acting Lord President, Tan Sri Hamid, for the following reasons, namely:
In my opinion, the subsection can only apply if two conditions are satisfied, namely
Here, I must reiterate I was not a member of the original panel of the Supreme Court. Second, I was only requested to take the place of another member of the Court. Third, I did not consent at any stage to be the presiding judge of the Court. Lastly, in the absence of the presiding Judge, Tan Sri Wan Sulaiman, the other member in Kota Baru at that point of time was Dato Harun, and section 38(1) expressly stipulates that ‘every proceeding in the Supreme Court shall be heard and disposed of by three Judges or such greater uneven number of Judges as the LP may in any particular case determine’.
In any case, at this juncture, there were only two Judges in Kota Baru and therefore Section 38(1) could not take effect.
Another reason was that as Chairman of the Tribunal set up to investigate the serious charges against suspendend LP Tun Salleh Abas, acting LP Tan Sri Hamid should not, in my opinion, have been concerned with proceedings in the Supreme Court of Malaysia that was scheduled to take place. It was very clear that these functions would be performed by the senior judge (namely Tan Sri Wan Sulaiman) in the then hierarchy of the Supreme Court under section 9(1) of the Court of Judicature Act 1964 and Article 131A of the Federal Constitution.
My view was later supported by four other members of the Supreme Court on 2 July 1988 and they were:
Only the acting LP Tan Sri Hamid held a contrary minority view on the interpretation of section 9(1) of the Courts of Judicature Act 1964 and Article 131A of the Federal Constitution.
I alone flew back from Kota Baru to Kuala Lumpur in compliance with the suggestion of Tan Sri Wan Sulaiman, the most senior judge then, while Dato Harun remained in Kota Baru.
An Ajaib decision
Meanwhile, Tun Salleh Abas had filed a suit in the High Court at Kuala Lumpur challenging the constitutionality and legality of the Tribunal headed by Acting LP Tan Sri Hamid. Tun Salleh Abas also applied by way of an exparte motion for an Order of Prohibition against the members of the Tribunal from proceeding or deliberating or exercising any function under Article 125 of the Federal Constitution and for other reliefs.
The application came before Dato Ajaib Singh, a judge of the High Court at Kuala Lumpur, on Saturday, 2 July 1988.
To prevent the impugned Tribunal from presenting its recemmendations to the Yang di-Pertuan Agong, the counsel for Tun Salleh Abas, Raja Aziz Addruse, applied for an interim stay against the Tribunal till Monday, 4 July 1988 but this was refused by the learned Judge, Dato Ajaib Singh.
Tan Salleh Abas’ counsel, Raja Aziz, immediately went to see Tan Sri Wan Sulaiman, the most senior Judge in residence in Kuala Lumpur. Tan Sri Wan Sulaiman convened a special sitting of the Supreme Court consisting of five Judges to hear the ex parte application on the grounds of grave urgency on Saturday, 2 July 1988, acting pursuant to section 9(1) of the Courts of Judicature Act 1964 and Article 131A of the Federal Constitution.
Counsel submitted that Tun Salleh Abas’s Tribunal was in the final stage of finalising the Report to be submitted to the King. Hence the great urgency and this persuaded the five Judges of the Special Sitting of the Supreme Court to issue the Order of Probition immediately to prevent a grave injustice from being perpetuated.
After hearing the oral submissions of Counsel for Tun Salleh Abas, the five Judges of the Supreme Court consisting of
unanimously granted the Interlocutory Order prayed for.
In our unanimous opinion, the challenge on the legality and constitutionality of the Tun Salleh Abas’ Tribunal should be determined first before any Report could be presented by the Tribunal to the King.
That the apex court could and would sit at short notice on grounds of grave urgency to prevent an injustice from taking place was recently demonstrated in the United Kingdom when the Court of Sessions in Edinburgh refused an application for an Interlocutory Injunction. Counsel immediately appealed to the House of Lords in London and the appeal was heard the very same day. Nobody had made any adverse comments on the procedure adopted by the appellant’s solicitors.
Tan Sri Wan Sulaiman phones the deputy IGP
After the Interlocutory Order of the Supreme Court had been extracted and sealed, Tun Salleh Abas’ solicitors proceeded to Parliament House to serve it on the Chairman of the Tribunal, acting LP Tan Sri Hamid. They, however, found the gate leading to Parliament House locked, thus effectively preventing them from serving the Interlocutory Order.
This obstacle was conveyed to Tan Sri Wan Sulaiman, who, after consulting with Tan Sri Abdoolcader, rang up the Deputy Inspector-General of Police. The Deputy IGP then directed the police constable who was stationed at the gate of Parliament House to open the gate to allow passage for Tun Salleh Abas’ solicitors to effect service of the Court Order on the Chairman of Tun Salleh Abas’ Tribunal. This was duly effected the same Saturday morning.
Five judges suspended!
Soon after, the five Judges of the Supreme Court who issued the Interim Order unanimously were suspended. This followed complaints made by acting LP Tan Sri Hamid to the Prime Minister, who in turn recommended to the Yang Di-Pertuan Agong to suspend the five Judges.
Incidentally, Tan Sri Hashim Yeop Sani was invited by Tan Sri Wan Sulaiman to be a member of the special sitting of the Supreme Court but Tan Sri Hashim replied that ‘we will be staging a revolution’!
In my next article, I will touch on the charges against the five Judges of the Supreme Court and separate charges against Tan Sri Wan Sulaiman and myself.
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