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 Salleh Abas (presiding); Wan Sulaiman and Hashim Yeop Sani.

After the suspension of the Lord President, Salleh Abas, the new coram was made up of Wan Sulaiman (presiding), Hashim Yeop Sani and Harun Hashim.

When Hashim Yeop Sani was unable to go to Kota Baru for personal reasons, the acting Lord President, Hamid, asked me following my return from a sitting of the Supreme Court in the Borneo States when I agreed to replace Mohamed Azmi whether or not I was agreeable to taking the place of Hashim Yeop Sani.

I agreed albeit there were three other judges of the Supreme Court who were available at that point of time, namely Mohamed Azmi, Abdoolcader and 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 Harun, I received the undermentioned messages:

  • From Wan Sulaiman: instructing me to return to Kuala Lumpur immediately, and,
  • From Hamid, instructing me to remain and to take over as presiding judge of the Supreme Court, if Wan Sulaiman should fail to turn up in Kota Baru. This message was relayed to me by Harun when I saw him in his hotel room.

Why I flew back to KL

After due consideration I preferred and accepted the suggestion of Wan Sulaiman to that of the Acting Lord President, Hamid, for the following reasons, namely:

I agreed to replace Hashim Yeop Sani in the Kota Baru sitting of the Supreme Court and this was done with my express consent.

But I had never agreed to be the presiding judge of the Kota Baru Supreme Court in the absence of Wan Sulaiman.

a) Further, the acting LP, Hamid, had no power to direct me to be the presiding judge of the Kota Baru Supreme Court without my consent.

b) And if the acting LP had purportedly invoked section 38(2) of the Courts of Judicature Act 1964 and to dispense with my consent, with respect, it is my contention that this provision of the subsection did not apply in the context of this case.

In my opinion, the subsection can only apply if two conditions are satisfied, namely

i) the coram must be presided by the LP and in his absence, the senior member of the Supreme Court shall preside;

ii) this postulates that the senior member of the Supreme Court must agree to sit as a member of the Court in the first place, and with his consent.

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, Wan Sulaiman, the other member in Kota Baru at that point of time was 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 Salleh Abas, acting LP 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 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 July 2 1988, and they were Wan Sulaiman, Mohamed Azmi, Abdoolcader and Wan Hamzah.

Only acting LP 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 Wan Sulaiman, the most senior judge then, while Harun remained in Kota Baru.

An Ajaib decision

Meanwhile, 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 Hamid. 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 Ajaib Singh, a judge of the High Court at Kuala Lumpur, on Saturday, July 2, 1988.

To prevent the impugned tribunal from presenting its recommendations to the Yang di-Pertuan Agong, the counsel for Salleh Abas, Raja Aziz Addruse, applied for an interim stay against the tribunal till Monday, July 4,1988 but this was refused by the learned judge, Ajaib Singh.

Salleh Abas' counsel, Raja Aziz, immediately went to see Wan Sulaiman, the most senior judge in residence in Kuala Lumpur. 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, July 2, 1988, acting pursuant to section 9(1) of the Courts of Judicature Act 1964 and Article 131A of the Federal Constitution.

Counsel submitted that 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 prohibition immediately to prevent a grave injustice from being perpetuated.

After hearing the oral submissions of counsel for Salleh Abas, the five judges of the Supreme Court consisting of Wan Sulaiman (presiding), George Seah, Mohamed Azmi, Abdoolcader and Wan Hamzah unanimously granted the interlocutory Order prayed for.

In our unanimous opinion, the challenge on the legality and constitutionality of the 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.

Wan Sulaiman phones the deputy IGP

After the interlocutory order of the Supreme Court had been extracted and sealed, Salleh Abas' solicitors proceeded to Parliament to serve it on the chairman of the tribunal, acting LP Hamid.

They, however, found the gate leading to Parliament locked, thus effectively preventing them from serving the interlocutory order.

This obstacle was conveyed to Wan Sulaiman, who, after consulting with 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 to open the gate to allow passage for Salleh Abas' solicitors to effect service of the court order on the chairman of the tribunal. This was duly effected the same Saturday morning.

Soon after, the five judges of the Supreme Court who issued the interim order unanimously were suspended. This followed complaints made by acting LP Hamid to the Prime Minister, who in turn recommended to the Yang Di-Pertuan Agong to suspend the five judges.

Incidentally, Hashim Yeop Sani was invited by Wan Sulaiman to be a member of the special sitting of the Supreme Court but 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 Wan Sulaiman and myself.

Tomorrow: Supreme Court suspended

Part 1: The hidden story

Part 2: Something's brewing in KL

GEORGE SEAH was a Supreme Court judge during the 1988 judicial crisis. The above article first appeared in Aliran.