Sacking of judges: Bar dismayed

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To honour the memory of the late former Bar Council president Raja Aziz Addruse, we reproduce his full press statement on behalf of the Bar Council reacting to the report of the tribunal which sacked two Supreme Court judges and reinstated three others.

Raja Aziz Addruse and Dato' Param taking leave of Tunku, after briefing him on the judicial crisis at the Gleneagles Hospital in Penang on 14 June 1988.

The Bar Council is dismayed at the recommendation of the Tribunal that YA Tan Sri Wan Suleiman and Datuk George Seah be removed from office on grounds of alleged Judicial misbehaviour.

On a preliminary reading of the Report and the legal arguments made on behalf of the Judges, the Bar Council is of the opinion that the recommendation of the Tribunal is unsustainable as against Tan Sri Wan Suleiman and Datuk George Seah.

The Bar Council finds it shocking that theTribunal failed to deal with and consider the most obvious question before it, namely that the representation against, inter-alia, YAA Tan Sri Abdul Hamid, the Acting Lord President who was then a Respondent in the proceedings brought by Tun Salleh Abas, and that this factor would disqualify him from participating in any matter connected with the proceedings involving Tun Salleh Abas.

It is a basic principle of law that a litigant should not appoint the Judges to decide a case in which he is involved.

Inexplicable reasoning

In this regard the Bar Council finds inexplicable the reasoning of the Tribunal that Tan Sri Wan Suleiman should have contacted the Acting Lord President and should have asked “that he be excused from going to Kota Bharu”. The Tribunal’s conclusion that “this would have been a valid excuse for staying away from Kota Bharu” defies accepted norms that a litigant should not be consulted about any matter relating to his own case.

In the same vein, the Tribunal’s finding in respect of Datuk George Seah is equally unsustainable. The Tribunal had concluded that Datuk George Seah ought to have given priority to the Acting Lord President’s directive to remain in Kota Bharu instead of the directive from Tan Sri Wan Suleiman that he should return to Kuala Lumpur to attend an anticipated urgent sitting in connection with the Tun Salleh matter. The Tribunal had ignored the fact that it would have been clearly wrong for Datuk George Seah to comply with the directive of the Acting Lord President because it was coming from a litigant who was involved in the likely proceedings in Kuala Lumpur.

The matter is compounded by the glaring omission of the Tribunal to decide on the proper interpretation of Section 9(i) of the Courts of Judicature Act, 1964. This was the crux of the whole matter, and it was incumbent on the Tribunal to come to a decision on the interpretation of this section before they could determine whether or not the judges were wrong to have acted as they did under that provision of the law.

It should have been manifestly obvious to the Tribunal that the Acting Lord President became unable to act to schedule a sitting on the Tun Salleh case by reason of his being a Respondent in that case. It follows that the power naturally devolved on Tan Sri Wan Suleiman under Section 9 as the next senior most Supreme Court Judge, since the Chief Justice of Borneo was also a Respondent in the Tun Salleh proceedings.

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The Tribunal took the stand that “it is not constitutionally empowered to interpret Section 9(i) authoritatively” and “that function belongs to the Supreme Court alone”. In failing to give a decision on the proper interpretation of Section 9 (i) the Tribunal failed to answer a question that was crucial to the whole case. Thus the Tribunal misdirected itself when it thought it was not empowered to give an interpretation to Section 9 (i). In this regard they had misjudged or avoided the significance of Section 9 (i).

It is surprising that having come to the conclusion that the view taken of Section 9 (i) by the Judges was “not unreasonable”, the Tribunal should yet find the two Judges guilty of judicial misbehaviour for staying away from Kota Bharu and convening the sitting in Kuala Lumpur. It is trite law that where there are two provision of law, the one more favourable to the Respondent must be adopted.

In this context it is even more surprising that the Tribunal could have come to the conclusion that Tan Sri Suleiman did not hold the honest belief that he could cancel or adjourn the proceedings in Kota Bharu. The Tribunal referrd to Section 39 (2) which says that “the Lord President may cancel or postpone any sitting of the Court” and went on to state that the language of Section 39 (2) is unambiguous.

It is obvious that the Tribunal had overlooked its earlier conclusion that it was not unreasonable for Tan Sri Wan Suleiman to have taken the view that he could exercise the powers under Section 9 (i). Surely the right to exercise the power under Section 9 (i), in the cirumstances, where the Acting Lord President was disqualified on account of being a litigant in the proceedings would include the right to exercise the functions under Section 39 (2), namely, the right to cancel or postpone a sitting of the Supreme Court. Therefore the findings of the Tribunal that Tan Sri Wan Suleiman could not have held the honest belief was untenable and unjustified.

At this juncture, the Bar Council can only confine its comments on the above aspect of the Tribunal’s Report. It will issue a further statement after it has obtained all the evidence and documents on which the Report has been based.

In view of certain specific findings of the Tribunal and on evidence presently available to it, however, the Bar Council feels compelled to make the following observations in respect of the representations made by Tan Sri Hamid Omar, the Acting Lord President, to His Majesty the Yang Di Pertuan Agong on 5 July 1988.

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Factually inaccurate

It is plain from the evidence that the representations were factually inaccurate in a number of respects. The representations were hastily drafted and omitted relevant facts.

In his representations the Acting Lord President stated that Tan Sri Wan Suleiman had failed to leave Kuala Lumpur for Kota Bharu together with Datuk George Seah and Datuk Harun Hashim even though he had been booked on the same flight. However, the evidence of Datuk Harun Hashim clearly showed that as early as June 30, 5 days before the representations were drafted, Tan Sri Wan Suleiman had arranged to take the later evening flight.

In paragraph 4 of the representations, the Acting Lord President stated that he was informed of Tan Sri Wan Suleiman’s absence on Datuk Harun’s arrival at Kota Bharu on the morning of July 1. The evidence shows that Datuk Harun only informed the Acting Lord President of Tan Sri Wan Suleiman’s absence in the evening at about 5 pm.

These discrepancies are indicative of haste and failure on the part of the Acting Lord President to properly verify the facts which formed the basis of his serious allegations against the five Judges.

In his representations the Acting Lord President said that he “never allowed or was informed or had any knowledge of the sitting convened by Tan Sri Wan Suleiman” on July 2. The evidence of Encik Haidar, the then Chief Registrar, shows that as early as 8.30 am, on the same day the Acting Lord President had anticipated the possibility of Tun Salleh’s counsel making urgent application to the Supreme Court and had instructed Encik Haidar that the Registry of the Supreme Court was not to take any action on any such application without first taking directions from him.

Later at about 12 noon, upon being informed by Encik Haidar that an urgent application had been made to the Supreme Court, the Acting Lord President instructed him that the Court staff should not be involved and the Court room be not made available to the five Judges. Tan Sri Hamid bin Omar further expressly instructed Encik Haidar to keep the Supreme Court seal under lock and key.

In this light it would seem that it was less than forthright on the part of Acting Lord President to state that he was “never allowed or informed or had any knowledge of the sitting convened” when he had not only anticipated the sitting but also taken steps to obstruct the said sitting of the Supreme Court.

In his representations the Acting Lord President seems to have the impression that the five Supreme Court Judges had given a final order as opposed to an interim order prohibiting the Tun Salleh Tribunal from giving His Majesty the Yang Di Pertuan Agong its Report.

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Contrary to the allegation that the Judges “took the seal from the Supreme Court Registry even though the office was closed and the officers had gone home” the evidence before the Tribunal established that the Judges in fact had never gone into the Registry or in any way handled the seal.

Reflects poorly on Tan Sri Hamid

The Acting Lord President fruther gave the impression that Tan Sri Wan Suleiman’s personally signing the Order was improper. Clearly this was designed to indicate bias on the part of Tan Sri Wan Suleiman towards the Applicant. However, it is widely accepted that in urgent cases, it is normal for judges to do so. In this regard, even the allegation that the convening of the Supreme Court within half-hour was improper reflects poorly on Tan Sri Hamid as it is a fundamental and obvious principle of law that matters of urgency must be dealt with expeditiously.

It is apparent that the grounds upon which the Acting Lord President relied to found the allegation of conspiracy were misconceived. Even giving the worst possible construction to the facts, there could be no basis to support such an allegation.

Paragraph 7 of the representations also contained reference to rules of procedure in relation to Appeals which were alleged to have been breached. It did not mention that the sitting was in response not to an appeal but an urgent application. This representation was, therefore, not only incorrect but also insufficient as it failed to refer to the relevant rules in relation to urgent applications.

On the face of it, it is clear that in making the representations, Tan Sri Hamid failed to exercise the caution and prudence expected of a holder of high judicial office.

As already mentioned, the Acting Lord President was a litigant in the application before the Supreme Court and that despite this, having anticipated the application, he took active steps to obstruct the due process of law.

The Bar Council also notes that in the Tribunal, Tan Sri Hashim bin Yeop Abdullah Sani disqualified himself on the grounds of likelihood of bias, thereby adding weight to the Bar Council’s objection to Tan Sri Hamid’s involvement in the proceedings concerning Tun Mohd Salleh hin Abas.

In the circumstances it is the view of the Bar Council that Tan Sri Hamid’s continued presence as a member of the Bench is unhealthy and seriously compromises the integrity of the Judiciary. The Malaysian Bar reaffirms its call for Tan Sri Hamid to immediately resign his position as Acting Lord President, Chief Justice and Judge of the Supreme Court of Malaysia.

Source: Aliran Monthly Vol 8, No 7, Page 25

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charlie chan
28 Nov 2011 6.43pm

correct who sacked the judges n destroyed the judiciary???