[Versi Bahasa Inggeris]
Oleh Datuk George Seah
"History will exonerateme for taking a stand"
The starting point of the crisis in the judiciary can be traced to the 1987 election of the President of UMNO, the dominant political party of the Barisan Nasional Malaysia.
In 1987 the then President of UMNO was Datuk Seri (now Tun) Dr Mahathir who was also the Prime Minister of Malaysia. The incumbent received more than one hundred nominations from the UMNO branches for the Presidency of UMNO whereas his challenger Tengku Razaleigh, one of the three vice-Presidents of UMNO was nominated by slightly more than twenty branches of UMNO. The fact that the challenger in spite of receiving so few nominations had the audacity to mount a challenge came as a surprise to many pundits. However, when the secret ballots were counted, the result came as a shock to many, who had expected the incumbent to win by an overwhelming majority based purely on the great number of nominations he had received from the party’s branches. Instead, Datuk Seri Dr Mahathir only won by a narrow margin of 43 votes.
An unlawful society
A civil suit was filed in the Kuala Lumpur High Court by eleven members of UMNO (referred to as the UMNO 11) seeking a number of reliefs including a declaration that the whole election of the 1987 office bearers at the UMNO General Assembly was unconstitutional, illegal and therefore null and void and of no effect.
The agreed facts listed 30 unapproved branches in four divisions and others. It seems to me that under the UMNO constitution each branch may elect up to a maximum of five delegates on the basis of one delegate for every 50 members. Each division may elect up to a maximum of 10 delegates on the basis of one delegate for every 500 members. This is on the assumption that the members of the division have paid up their annual subscriptions on or before 31 December of the previous year. A simple calculation would show that if the delegates from the 30 unapproved branches in 4 divisions had been excluded from the General Assembly, the outcome would have been very close due to the narrow margin of the votes between the winner and loser.
The High Court Judge, Dato Harun Hashim declared that UMNO was an unlawful society and the UMNO 11 “as members of UMNO, cannot acquire any right which is founded upon that which is unlawful. The Court will therefore not lend its aid to the reliefs sought by the Plaintiffs (UMNO 11). Having said that, I do not think it is necessary to deal with the other issues and I accordingly dismissed the Plaintiffs’ claim”.
It is clear that the High Court Judge purported to grant an Order which was not sought for either by the UMNO 11 or the Defendants. An appeal to the Supreme Court of Malaysia was lodged by UMNO 11. Tun Salleh Abas, the incumbent Lord President was suspended before the UMNO 11’s appeal could be heard and disposed of.
Some 15 years later, after the recent death of Dato Harun on 30 September 2003, the following orbituary appeared in the New Sunday Times, dated 5 October 2003 on page 10:
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 persisted in their plan to have a full court hearing of the UMNO 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 ....
Instructions given
When Tun Salleh Abas was the Lord President in 1987 the dates and places of the scheduled sittings of the Supreme Court of Malaysia for the year 1988 would have been finalized in the month of November 1987 and this information would have been publised in The Malayan Law Journal in December 1987 or January 1988. Special sittings of the Supreme Court would be convened when the need arose at the request of the parties.
For the purpose of this article only the following sittings of the Supreme Court are relevant, namely 1988 ... 23 May 1988 (Ipoh); June 1988 (Borneo States) and 2 July 1988 (Kota Bharu).
The coram for the Ipoh sitting was made up of Tun Salleh Abas (presiding), myself and Tan Sri Hashim Sani. Although Tun Salleh Abas and I stayed in the same hotel, Tan Sri Hashim Yeop Sani decided to stay separately at Tambun Inn. At that point of time, nobody paid any particular attention to this.
In Ipoh Tun Salleh Abas finally made up his mind to appoint a panel of nine judges to hear the UMNO 11’s appeal. Following this, the Senior Assistant Registrar (SAR) of the Supreme Court was given the undermentioned directions to convey to the Appellants’ solicitors:
1) to prepare six additional Records of Appeal for the extra judges,
2) that the date had been fixed on 13 June 1988 for the hearing, and
3) to send out Notices for the Hearing of the Appeal to the parties’ solicitors.
These instructions were given on 24 May 1988. On 27 May 1988 Tun Salleb Abas reported that he had been suspended from exercising his functions of High Office with restrospective effect from 26 May 1988.
The Chief Justice of the High Court of Malaya, Tan Sri (now Tun) Abdul Hamid, was appointed Ag Lord President and, on assuming office, the acting Lord President vacated the 13 June 1988 hearing date.
Sent to Kota Bharu
I now come to the June 1988 sitting of the Supreme Court in the Borneo States (as they were then known). The coram for this session consisted of Tan Sri Lee Hun Hoe (presiding), Tan Sri Wan Suleiman and Tan Sri Mohd Azmi.
For personal reasons, Tan Sri Mohd Azmi was unable to make the trip and he asked me to take his place, which I accepted.
The next sitting of the Supreme Court was at Kota Bharu and the original members of the panel were Tun Salleh Abas, Tan Sri Wan Suleiman and Tan Sri Hashim Yeop Sani. When Tun Salleh Abas was suspended, Tan Sri Wan Suleiman became the presiding judge and Dato Harun made up the third member.
When I returned from the Borneo States there was a letter on my table from the Ag Lord President, Tan Sri Abdul Hamid asking me whether I was free to replace Tan Sri Hashim Yeop Sani, albeit both the Ag Lord President and Tan Sri Hashim Yeop Sani knew very well that I had just come back from another sitting of the Supreme Court at Kuching and Kota Kinabalu. At the material time the Judges of the Supreme Court who were free and available were:
1) Tan Sri Mohd Azmi;
2) Tan Sri Abdoolcader and
3) Tan Sri Wan Hamzah.
Why didn’t the acting Lord President pick any one of them to replace Tan Sri Hashim Yeop Sani in Kota Bharu? In my view, it was plain that the acting Lord President wanted me out of Kuala Lumpur so that I could be with Tan Sri Wan Suleiman in Kota Bharu.
In 1987 the then President of UMNO was Datuk Seri (now Tun) Dr Mahathir who was also the Prime Minister of Malaysia. The incumbent received more than one hundred nominations from the UMNO branches for the Presidency of UMNO whereas his challenger Tengku Razaleigh, one of the three vice-Presidents of UMNO was nominated by slightly more than twenty branches of UMNO. The fact that the challenger in spite of receiving so few nominations had the audacity to mount a challenge came as a surprise to many pundits. However, when the secret ballots were counted, the result came as a shock to many, who had expected the incumbent to win by an overwhelming majority based purely on the great number of nominations he had received from the party’s branches. Instead, Datuk Seri Dr Mahathir only won by a narrow margin of 43 votes.
An unlawful society
A civil suit was filed in the Kuala Lumpur High Court by eleven members of UMNO (referred to as the UMNO 11) seeking a number of reliefs including a declaration that the whole election of the 1987 office bearers at the UMNO General Assembly was unconstitutional, illegal and therefore null and void and of no effect.
The agreed facts listed 30 unapproved branches in four divisions and others. It seems to me that under the UMNO constitution each branch may elect up to a maximum of five delegates on the basis of one delegate for every 50 members. Each division may elect up to a maximum of 10 delegates on the basis of one delegate for every 500 members. This is on the assumption that the members of the division have paid up their annual subscriptions on or before 31 December of the previous year. A simple calculation would show that if the delegates from the 30 unapproved branches in 4 divisions had been excluded from the General Assembly, the outcome would have been very close due to the narrow margin of the votes between the winner and loser.
The High Court Judge, Dato Harun Hashim declared that UMNO was an unlawful society and the UMNO 11 “as members of UMNO, cannot acquire any right which is founded upon that which is unlawful. The Court will therefore not lend its aid to the reliefs sought by the Plaintiffs (UMNO 11). Having said that, I do not think it is necessary to deal with the other issues and I accordingly dismissed the Plaintiffs’ claim”.
It is clear that the High Court Judge purported to grant an Order which was not sought for either by the UMNO 11 or the Defendants. An appeal to the Supreme Court of Malaysia was lodged by UMNO 11. Tun Salleh Abas, the incumbent Lord President was suspended before the UMNO 11’s appeal could be heard and disposed of.
Some 15 years later, after the recent death of Dato Harun on 30 September 2003, the following orbituary appeared in the New Sunday Times, dated 5 October 2003 on page 10:
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 persisted in their plan to have a full court hearing of the UMNO 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 ....
Instructions given
When Tun Salleh Abas was the Lord President in 1987 the dates and places of the scheduled sittings of the Supreme Court of Malaysia for the year 1988 would have been finalized in the month of November 1987 and this information would have been publised in The Malayan Law Journal in December 1987 or January 1988. Special sittings of the Supreme Court would be convened when the need arose at the request of the parties.
For the purpose of this article only the following sittings of the Supreme Court are relevant, namely 1988 ... 23 May 1988 (Ipoh); June 1988 (Borneo States) and 2 July 1988 (Kota Bharu).
The coram for the Ipoh sitting was made up of Tun Salleh Abas (presiding), myself and Tan Sri Hashim Sani. Although Tun Salleh Abas and I stayed in the same hotel, Tan Sri Hashim Yeop Sani decided to stay separately at Tambun Inn. At that point of time, nobody paid any particular attention to this.
In Ipoh Tun Salleh Abas finally made up his mind to appoint a panel of nine judges to hear the UMNO 11’s appeal. Following this, the Senior Assistant Registrar (SAR) of the Supreme Court was given the undermentioned directions to convey to the Appellants’ solicitors:
1) to prepare six additional Records of Appeal for the extra judges,
2) that the date had been fixed on 13 June 1988 for the hearing, and
3) to send out Notices for the Hearing of the Appeal to the parties’ solicitors.
These instructions were given on 24 May 1988. On 27 May 1988 Tun Salleb Abas reported that he had been suspended from exercising his functions of High Office with restrospective effect from 26 May 1988.
The Chief Justice of the High Court of Malaya, Tan Sri (now Tun) Abdul Hamid, was appointed Ag Lord President and, on assuming office, the acting Lord President vacated the 13 June 1988 hearing date.
Sent to Kota Bharu
I now come to the June 1988 sitting of the Supreme Court in the Borneo States (as they were then known). The coram for this session consisted of Tan Sri Lee Hun Hoe (presiding), Tan Sri Wan Suleiman and Tan Sri Mohd Azmi.
For personal reasons, Tan Sri Mohd Azmi was unable to make the trip and he asked me to take his place, which I accepted.
The next sitting of the Supreme Court was at Kota Bharu and the original members of the panel were Tun Salleh Abas, Tan Sri Wan Suleiman and Tan Sri Hashim Yeop Sani. When Tun Salleh Abas was suspended, Tan Sri Wan Suleiman became the presiding judge and Dato Harun made up the third member.
When I returned from the Borneo States there was a letter on my table from the Ag Lord President, Tan Sri Abdul Hamid asking me whether I was free to replace Tan Sri Hashim Yeop Sani, albeit both the Ag Lord President and Tan Sri Hashim Yeop Sani knew very well that I had just come back from another sitting of the Supreme Court at Kuching and Kota Kinabalu. At the material time the Judges of the Supreme Court who were free and available were:
1) Tan Sri Mohd Azmi;
2) Tan Sri Abdoolcader and
3) Tan Sri Wan Hamzah.
Why didn’t the acting Lord President pick any one of them to replace Tan Sri Hashim Yeop Sani in Kota Bharu? In my view, it was plain that the acting Lord President wanted me out of Kuala Lumpur so that I could be with Tan Sri Wan Suleiman in Kota Bharu.
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