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Number of Members present: 1,002

Motion:

WHEREAS:

(1) The Executive in the person of the Prime Minister, Y.A.B. Datuk Seri Dr. Mahathir Mohd. Has in the past months attacked the judiciary and the judicial system of our country.

(2) The attacks have reached the level of suspending Y.A.A. Tun Mohd. Salleh Abas, the Lord President from his office and a Tribunal was appointed to hear representations to remove Y.A.A. Tun Mohd. Salleh Abas from the office of Lord President.

(3) Y.A.A. Tan Sri Abdul Hamid Hj. Omar, the Chief Justice of Malaya and Acting Lord President (as a result of the suspension of Y.A.A. Tun Mohd Salleh Abas) was appointed a member of the Tribunal and Chairman of the Tribunal.

(4) Y.A.A. Tun Mohd Salleh Abas has challenged the validity of the Tribunal and has brought the proceedings in the High Court for its determination.

(5) The said application was heard before Y.A. Datuk Ajaib Singh and as no decision was made on the application before him, and when there was a refusal to grant a stay of proceedings of the Tribunal, counsel for Y.A.A. Tun Mohd Salleh Abas applied for and obtained from the Supreme Court comprising Y.A. Tan Sri Wan Suleiman Pawan Teh, Y.A. Datuk George Edward Seah Kim Seng, Y.A. Tan Sri Hj. Mohamed Azmi Haji Kamaruddin, Y.A. Tan Sri Eusoffe Abdoolcader and Y.A. Tan Sri Wan Hamzah Haji Wan Mohamed Salleh, an order restraining the members of the Tribunal of whom Y.A.A. Tan Sri Abdul Hamid Hj. Omar is the Chairman from submitting any recommendation, report or advice the King until further order.

(6) In consequence of the granting of the order by Y.A. Tan Sri Wan Suleiman Pawan Teh, Y.A. Datuk George Edward Seah Kim Seng, Y.A. Tan Sri Hj. Mohamed Azmi Haji Kamaruddin, Y.A. Tan Sri Eusoffe Abdoolcader and Y.A. Tan Sri Wan Hamzah Haji Wan Mohamed Salleh, Judges of the Supreme Court, DYMM Seri Paduka Baginda Yang Di-Pertuan Agong suspended Their Lordships as Judges of the Supreme Court upon receipt of representations from Y.A.A. Tan Sri Abdul Hamid Hj. Omar, Acting Lord President who had reportedly consulted the Prime Minister on the matter.

(7) The doctrine of the separation of powers which dictates and ensures the independence of the judiciary is enshrined in the Constitution.

(8) Y.A.A. Tan Sri Abdul Hamid Hj. Omar had given orders that none of the Court staff should be present, that the doors of the Court be not opened and that the facilities of the Court including the seal of the Court be denied to the Judges of the Supreme Court.

NOW THIS HOUSE re-affirms its commitment to uphold the Constitution, the rule of law, the doctrine of separation of powers and the independence of the judiciary and views the aforementioned events and acts of the Prime Minister, Y.A.B. Datuk Seri Dr Mahathir Mohd. And Y.A.A. Tan Sri Abdul Hamid Hj. Omar, Chief Justice and Acting Lord President as affecting the doctrine of the separation of powers and being totally inconsistent with the independence of the judiciary.

NOW IT IS HEREBY RESOLVED:

1. That the suspension of the five (5) Judges of the Supreme Court is a further unwarranted attack on the independence of the judiciary and a gross interference in the administration of justice in Malaysia and the MALAYSIAN BAR deplores the action of Y.A.A. Tan Sri Abdul Hamid Hj. Omar as Acting Lord President in having made representations to DYMM Seri Paduka Baginda Yang Di-Pertuan Agong which have resulted in the suspension of Y.A. Tan Sri Wan Suleiman Pawan Teh, Y.A. Datuk George Edward Seah Kim Seng, Y.A. Tan Sri Mohamed Azmi Haji Kamaruddin, Y.A. Tan Sri Eusoffe Abdoolcader and Y.A. Tan Sri Wan Hamzah Haji Wan Mohamed Salleh from office as Supreme Court Judges when he was and is the 1st Respondent cited in the order made by Their Lordships.

2. That the Malaysian Bar calls for the immediate revocation of the suspension of the five (5) Judges of the Supreme Court as Their Lordships’ suspensions are totally inconsistent with the independence of the judiciary and will lead to the destruction of the judiciary as an independent branch of the Government.

3. That by his recent actions, the Acting Lord President, Y.A.A. Tan Sri Abdul Hamid Hj. Omar had shown himself to be unfit for judicial office and the Malaysian Bar no longer has any confidence whatever in Y.A.A. Tan Sri Abdul Hamid Hj. Omar as a Judge or Chief Justice or Acting Lord President and therefore calls for his immediate resignation and/or removal from the Bench and by reason of making representation to His Majesty the King to suspend the Supreme Court Judges –

a. Y.A. Tan Sri Wan Suleiman Pawan Teh
b. Y.A. Datuk George Edward Seah Kim Seng
c. Y.A. Tan Sri Mohamed Azmi Haji Kamaruddin
d. Y.A. Tan Sri Eusoffe Abdoolcader
e. Y.A. Tan Sri Wan Hamzah Haji Wan Mohamed Salleh

and thereby interfering in the administration of justice when he made the said representation had been in contempt of Court, this House hereby resolves that the Bar Council immediately appoint a panel of solicitors to institute contempt proceedings against the said Chief Justice forthwith.

4. The Malaysian Bar urges all Judges of the Supreme Court and High Court of Malaya and Borneo and all judicial and legal officers to stand firm for the independence of the judiciary and discharge their duties in accordance with the Constitution, the rule of law and oath of office in the face of this affront to the independence of the judiciary.

5. That the BAR COUNCIL MALAYSIA make representation to DYMM Yang Di-Pertuan Agong and Their Royal Highnesses the Rulers to convene the Majlis Raja-Raja (Conference of Rulers) pursuant to Article 38(2) of the Constitution to receive representations from the BAR COUNCIL on the events and issues that have occurred prior to and leading to the suspensions of Y.A.A. Tun Salleh Abas from his office as Lord President and Y.A. Tan Sri Wan Suleiman Pawan Teh, Y.A. Datuk George Edward Seah Kim Seng, Y.A. Tan Sri Mohamed Azmi Haji Kamaruddin, Y.A. Tan Sri Eusoffe Abdoocader and Y.A. Tan Sri Hamzah Haji Wan Mohamed Salleh from their office of Supreme Court Judges, deliberate on the representations and to make such decision or decisions, as His Majesty and Their Royal Highnesses may deem fit and proper.

Proposer: Bar Council

Resolution:

The Motions as amended were unanimously adopted.

Follow-up Action:

1) The Bar Council submitted a Petition to the Yang di-Pertuan Agong calling for Tan Sri Abdul Hamid’s removal. Similar Petitions were presented to their Highnesses the Rulers through the respective Chairmen of the State Bar Committees;

2) The issue of members of the Bar being directed not to attend before Tan Sri Abdul Hamid in Court was discussed by Council. After careful consideration, it was decided that it would not have been in the interest of the administration of justice to have lawyers boycott his Court. It was felt that there was a real risk of cases being dismissed if Counsel did not appear in Court. Even if it should turn out otherwise, the chaos created by litigants having to argue their own cases, on appeals particularly, would have brought the machinery of justice to a standstill;

3) Where the administration of justice was not affected, the Bar Council steadfastly gave effect to the resolution. Thus the biennial Malaysian Law Conference, which was scheduled to be held at the end of last year, and for which subjects for discussion had been chosen by the Organising Committee, was cancelled: it having become a tradition for this Conference to be closed by the head of the Judiciary for the time being, the holding of the Conference was, in the circumstances, considered out of the question. For a similar reason, the Malaysian/Singapore Bench and Bar Games, which was due to be held in Singapore around August last year, was also cancelled;

4) The Bar Council, the Sabah Law Association and the Association of Advocates of Sarawak, jointly held a Seminar on the Independence of the Judiciary on 4th and 5th November, 1988. No invitation was extended to any member of the Judiciary. The Attorney General declined an invitation to him to attend;

5) A Committee for Contempt Proceedings Against Tan Sri Abdul Hamid was formed comprising 9 members including the Chairman. A panel of Solicitors were appointed to file contempt proceedings against the Lord President for obstruction of justice and opinion was sought from a Queen’s Counsel of England and Counsel from India. However, while the Committee concluded its deliberations by having built up a case for contempt against the former Chief Justice, the Committee was divided as to the rationale for commencing such proceedings owing to intervening circumstances. Some members felt that in view of the various Petitions submitted to the Rulers last year as the ultimate recourse and in view of the fact that the former Chief Justice was appointed as the new Lord President in spite of such Petitions, the entire matter should be remitted back to the members of the profession for reconsideration.