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COVER STORY


Postmortem of the 1988 judicial crisis

Diarist, Daim, Mahathir owe it to the public to shed light on the mystery surrounding the controversy

by Datuk George Seah
Aliran Monthly Vol 25 (2005): Issue 3

george
 
start_quote (1K)In hindsight, Acting Lord President Tan Sri Hamid Omar seemed to be interfering or countermanding the Order of the Supreme Court!
end_quote (1K)
Datuk George Seah

 
Tun Salleh Abas, the former Lord President of the Supreme Court of Malaysia, in his book "May Day for Justice" opined, “I have no doubt - and few would now disagree - that it was the UMNO saga that led to my destruction as a Judge.”

We all know that the High Court Judge Harun Hashim declared UMNO illegal even though no such relief was claimed by any of the parties in the proceedings before him. The plaintiffs, the UMNO 11, merely sought a declaration that the election of the President of UMNO was null and void on the simple grounds that there were more than 40 illegal members present from unregistered UMNO branches at the time of voting and the winner won by 43 votes. Who was responsible for the participation of these illegal members?

"Diarist" should shed some light

Some 15 years later, following Justice Harun’s death, an obituary appeared in the New Straits Times (5 October 2003). The following is an extract which makes fascinating reading in hindsight:

“After Harun declared UMNO illegal, he only sought the Diarist’s opinion on what was next. The Diarist speculated and also told Tun Salleh Abas what could happen in the event they (my emphasis) persisted in their plan to have a full court hearing of the UMNO’s case.

"Tun Daim Zainuddin had intimated to the Diarist the Government’s plan. They were simultaneously alarmed, sceptical and rather naive. The rest is history.

"... Harun made more personal history by handshakes than by his judgments or what he wrote. The irony is that though Harun rarely gave a written judgment, he became a prolific columnist after retirement."
In the construction of ambiguous legal documents (save for certain exceptions), the Court does not consider the subsequent actions of the party or parties. But in interpreting human conduct the activities of the party or parties following the event is highly relevant and material.

We know that soon after declaring UMNO to be an illegal organisation Justice Harun was promoted to be a Judge of the Supreme Court of Malaysia. (Note the Diarist’s observation of Harun as a Judge of the High Courts: Harun made more personal history by handshakes than by his judgments or what he wrote. The irony is that ... Harun rarely gave a written judgment.)

Harun SCJ was nominated as a third member of the Kota Baru session of the Supreme Court in July 1988 by Acting Lord President Tan Sri Abdul Hamid in spite of the fact that more senior Judges like Tan Sri Mohd Azmi, Tan Sri Abdoolcader and Tan Sri Wan Hamzah were available.

Following his retirement from the Supreme Court Judge, Harun was given an academic appointment in the International Islamic University, which he held until his sudden death in a heart attack.

This background information raises some interesting questions:
  • Why did Justice Harun approach the Diarist after the Court case?
  • Was the Diarist privy to some information as to what would happen following the High Court decision declaring UMNO as an illegal society?
Perhaps the Diarist may care to shed some light on these pertinent questions.

The other intriquing matter alluded to in the conversation the Diarist reported to have had with Tun Daim Zainuddin, who was UMNO Treasurer deserves our attention. It seems that even before the UMNO 11 appeal was heard by the Full Bench of nine Judges of the Supreme Court, the Government had already devised a contingency plan. It would be interesting to know what the plan was for the sake of posterity and who was behind the plan.

Mahathir's cryptic remarks

Another interesting revelation was unearthed following the retirement of Tun Mahathir Mohamad, when he was interviewed about his retirement by a journalist who wanted to know:

“Does that mean you are much happier now?” Tun replied, “Well, happy in a way, not happy in another way. Sometimes, certain things were done in a way they should not have been done or certain things done should not have been done.”

“What are the certain things?” the journalist asked.

No, I don’t want to tell (smiles),” replied Tun.

But without the Tun’s explanations one can only speculate what the "certain things" are that "were done in a way that should not have been done"!

Haidar's Dilemma

Lastly, there was the interview given by the retiring Chief Judge of the High Court in Malaysia, Tan Sri Justice Haider Mohd Noor, which was published in the New Straits Times (7 November 2004). The retiring Chief Judge was reported to have said:

“As for the most memorable moment in his career, he cited the impeachment of former Lord President Tun Salleh Abas in 1988. As the Chief Registrar of the Supreme Court, I was very much informed of the action taken. At the tribunal against the five judges of the Supreme Court, I was the star witness.

“It was a very tough time for me because on one side, Tan Sri Wan Sulaiman Pawan Teh was threatening me with contempt if I did not follow his order, and on the other side, Tun Hamid Omar was assuming the power of LP and directed me to act otherwise.

“When I was called up, I said that I was only a civil servant and it was not for me to question the Acting LP’s order. Tan Sri Wan Sulaiman said he could cite me for contempt and I said if I had to go to jail, I would.”

Readers would recall that Tan Sri Haidar Mohd Noor was the Chief Registrar of the Supreme Court of Malaysia during the 1988 Judicial Crisis.

Immediately after the removal of Lord President Tun Salleh Abas and senior Supreme Court Judges Tan Sri Wan Sulaiman and Datuk George Seah in 1988, Tan Sri Haidar was appointed a Judge of the High Court in Borneo. He returned to the High Court in Malaya and was elevated to the Court of Appeal and subsequently to the Federal Court before his appointment as Chief Judge of the High Court in Malaya.

Supreme Court vs Acting Lord President

Tan Sri Haidar’s statement that he had to make a choice — between the instructions given to him by Tan Sri Wan Sulaiman and the contrary instructions given by the Acting Lord President, Tan Sri Hamid Omar — poses a very fascinating constitutional question: Which instructions should take precedence?

At that point of time, it is relevant to note that Tan Sri Wan Sulaiman was giving his instructions in his capacity as the Presiding Judge of a specially constituted 5-member Supreme Court of Malaysia. These instructions were in fact tantamount to an Order of the Supremen Court — whereas Acting LP Tan Sri Hamid Omar was only giving administrative directive to his Chief Registrar. Acting Lord President Tan Sri Hamid Omar’s instructions did not and could not by any stretch of the imagination amount to an Order of the Court or perceived as having similar or equal weightage. Contempt of Court postulates as an Order of the Court and not as instructions of another Judge of the Supreme Court who is not sitting as a Judge in the Supreme Court.

In my opinion, contempt of court can arise only when an Order of the Court is disobeyed. The Chief Registrar of the Supreme Court cannot take it upon himself that the administrative directive of the Acting Lord President can override the Order of the Supreme Court. It is something very basic.

The directive of another Judge of the Supreme Court cannot supersede the Order of the Supreme Court. It is prudent to note that even the Lord President is not accorded any special privilege to override or exempted from this rule — leave alone an Acting Lord President!

Which order should have prevailed?

Contrasting the two instructions in this way there is no doubt whatsoever, whose instructions should have taken precedence, namely and without any fear of doubt the instructions given by Tan Sri Wan Sulaiman, in his capacity as Presiding Judge of the 5-member Supreme Court of Malaysia should have prevailed.

Tan Sri Haider, as Chief Registrar, had no right to question the legality of the 5-member Supreme Court. As Chief Registrar, his duty was merely to carry out the Order of the Supreme Court — and nothing less! Instead Tan Sri Haidar preferred to comply with the administrative instructions of the Acting Lord President rather than obey the instructions given to him by the Presiding Judge of the 5-member Supreme Court.

In hindsight, Acting Lord President Tan Sri Hamid Omar seemed to be interfering or countermanding the Order of the Supreme Court! This episode will no doubt, make an interesting academic article on Malaysian constitutional law for law students.

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