What concrete actions have been taken to restore separation of powers between the Malaysian judiciary, police force & army and Malaysian Government?
Is ISA ready for new government to use it to detain without trial for the political foes to taste the bitterness of the law?
Why Tun Dr. Mahathir wants to migrate if he did nothing wrong when he was in power as PM of Malaysia? Who wants to stab him at his back for no harm being made to Anwar and the Malaysian judiciary system?
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Charges against Tan Sri Wan Sulaiman
The first charge was for 'staying away and failing' to attend the Kota Baru Supreme Court sitting scheduled for the 2 July 1988 'without good reasons'.
The second charge was for 'ordering Supreme Court judges Datuk George Seah and Datuk Harun Hashim to leave their duties at the same Supreme Court hearing in Kota Baru without good and valid reasons'.
The Tribunal unanimously found that the above two charges against Tan Sri Wan Sulaiman had been established.
Comments on the tribunal's findings
Tan Sri Wan Sulaiman did 'stay away' from the Kota Baru Supreme Court sitting and he did order the other two Supreme Court judges to return to Kuala Lumpur for a possible special sitting. There is no dispute as to this. He had appeared before the Tribunal and had given his reasons. The Tribunal held that the charge of 'misbehaviour' on these two counts has been 'proved against Tan Sri Wan Sulaiman beyond reasonable doubt'.
| BRAVEST AND MOST HONOURABLE JUDGES |
| "The effect of the whole Second Tribunal was to remove two Judges — Tan Sri Datuk Wan Sulaiman Pawan Teh and Datuk George Edward Seah Kim Seng and reinstate the other three. But the 5-man Second Tribunal was not unanimous in its findings. At least two members had doubts and did not recommend removal. One even held that in the case of Datuk George Seah that guilt was not even established! "But that did not matter. The decision was by majority vote. Like a trial, not an inquiry. "And two of the bravest and most honourable men in the history of the Malaysian judicial system were simply thrown off the Bench." ~ Excerpt from May Day For Justice (1989 : 235) May Day for Justice can still be purchased from: Pacifica Publications Suite 2B, 2nd Floor, Rumah Rohhas, 61 Jalan Raja Abdullah, Kampung Baru, 50300 Kuala Lumpur Tel: +60-(0)3-2691 7110 Fax: +60-(0)3-2691 7130 e-mail: justice@tm.net.my |
In paragraphs 14.2 through 14.9 of its Report, the Tribunal noted the events in relation to the suspension of Tun Salleh leading to the Special sitting of the Supreme Court on 2 July 1988, having 'distilled' the facts from the various Press reports.
Two major events are clear, that is, (1) the Ex Parte application before Ajaib Singh J which in the mind of Tan Sri Wan Sulaiman was 'dragging on' and (2) the Tribunal proceedings which were 'speeding along'.
These two events were the main topic of conversation in all strata of Malaysian society at that period of time, especially among members of the legal fraternity. No one can deny that. The 'state of the Judiciary' was a matter of national importance and still is.
Paragraph 14.10 recorded that Tan Sri Wan Sulaiman said '...he thought that the proceedings before Ajaib Singh J were "dragging on", particularly, as they took the form of merely an Ex Parte Motion for leave to apply an Order of Prohibition ...'
The Tribunal accepted the evidence of Tan Sri Wan Sulaiman and in their assessment said (in paragraph 14.40): '...it would be naive indeed to conclude that this Respondent's conduct in cancelling his flight to Kota Baru and monitoring the proceeding in Ajaib Singh J's Court, was merely to satisfy his curiosity.
He displayed a deep and continuing interest in proceedings concerning a friend and long time senior colleague and whilst this may be understandably humane it was totally inexcusable especially in view of his status as a Judge of the Supreme Court.
It is difficult to resist the inevitable inference that he was indeed actuated by an improper motive and mindful that the standard of proof is beyond reasonable doubt, Tribunal so find.'
The Tribunal did not in its assessment comment on the manner or speed of the proceedings of the Tun Salleh Tribunal when dealing with what was called 'the third strand', Tan Sri Wan Sulaiman's 'improper motive' in cancelling his flight to Kota Baru and remaining in Kuala Lumpur to 'monitor' the proceedings in Ajaib Singh's Court.
This fact, in my view is a fatal misdirection in the minds of members of the Tribunal.
To right a wrong
These two parallel proceedings, Tun Salleh Tribunal proceedings and 'Ajaib Singh's Court hearing', stretching from the 28 June when Tun Salleh filed his Ex Parte application up to the Supreme Court sitting on 2 July must also be seen in the light of the appointment and composition of the Tun Salleh Tribunal and the objections of Tun Salleh and the Bar Council and also the reaction of the public. The Tribunal did not comment on this aspect.
Tan Sri Wan Sulaiman, like every right thinking and decent Malaysian was looking at the events of these past days with apprehension, to use an understatement.
I agree with the Tribunal's finding that Tan Sri Wan Sulaiman cancelled his flight to Kota Baru in order to remain in Kuala Lumpur to monitor Ajaib Singh J's proceedings not out of curiosity.
He did so in order to be in Kuala Lumpur to take appropriate action to prevent a possible miscarriage of justice which was of national importance.
Tan Sri Wan Sulaiman's motive was not improper as the Tribunal found. He was motivated by a noble thought, to right a possible wrong. His action was heroic.
In my opinion the conduct of Tan Sri Wan Sulaiman did not amount to 'misbehaviour'. His dismissal was not justified.
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 Datuk George Seah (pic) acted spontaneously and with the correct motive - that is to be available in Kuala Lumpur to prevent a possible miscarriage of justice.  - Chooi Mun Sou, Advocate and Solicitor of the High Court of Malaya | ||
Datuk George Seah was charged for 'staying away and failing to perform his duties at the Supreme Court hearing scheduled for July 2nd 1988 in Kota Baru'. The Tribunal, by a 4 to 1 decision found that this charge 'has been established beyond reasonable doubt'.
Comments on the tribunal's findings
I agree with the dissenting views of one member of the Tribunal - paragraph 16 of the Tribunal Report.
The dissenting member was correct in holding that the Respondent acted on the 'direction; of Tan Sri Wan Sulaiman in returning to Kuala Lumpur. He then went on to consider whether there was an 'improper motive' on the part of the Respondent in disregarding the instruction given by the Acting Lord President, through Dato Harun Hashim and concluded that there was no such 'improper motive'.
I would further add that Datuk George Seah acted spontaneously and with the correct motive - that is to be available in Kuala Lumpur to prevent a possible miscarriage of justice.
Like Tan Sri Wan Sulaiman and all right thinking and decent Malaysians, he was…'looking at the events of these past days with apprehension'.
The majority of the Tribunal quite correctly identified the crux of the matter in coming to their decision. They referred to the dilemma of Datuk George Seah: to answer either the directive of Tan Sri Wan Sulaiman 'to return to Kuala Lumpur as soon as possible to sit on a matter not yet before the Court or the other directive from the Acting Lord President (made through Datuk Harun Hashim) to remain in Kota Baru and preside at a scheduled sitting at which some 20 appeals (civil and criminal) had been fixed for hearing'. They concluded that 'there was no question but that the Acting Lord President's directive had over-riding effect'.
Five different hats
The majority members, however, failed to consider the position of the Acting Lord President.
| FIVE DIFFERENT HATS |
| The cardinal principle in the administration of justice is that 'justice must not only be done but must be manifestly seen to be done'. Thus any judge or arbitrator appointed to determine any conflict or to judge a matter must meticulously avoid being in a position of conflict. Tan Sri Hamid was clearly in various situations of conflict. He was wearing five 'hats':
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Tan Sri Hamid was wearing five hats (see box). He was a 'disqualified person'.
The evidence before the Tribunal showed that Tan Sri Hamid knew of the proposed sitting in advance and he did not directly instruct Datuk George Seah to remain in Kota Baru.
Tan Sri Hamid also knew that Tan Sri Wan Sulaiman was in Kuala Lumpur in readiness for the proposed sitting. He did not directly instruct Tan Sri Wan Sulaiman to proceed to Kota Baru.
By failing to consider this crucial point the majority members misdirected themselves in coming to the conclusion that the conduct of Datuk George Seah amounted to 'misbehaviour'.
Datuk George Seah acted correctly 'in flying in the face of the Acting Lord President's directive (given through Datuk Harun Hashim)'. He responded to the directive of Tan Sri Wan Sulaiman to prevent an injustice.
In my opinion the conduct of Datuk George Seah did not amount to 'misbehaviour'. His dismissal was not justified.
The evidence before the Tribunal showed that Tan Sri Hamid knew of the proposed sitting in advance and he did not directly instruct Datuk George Seah to remain in Kota Baru.
Tan Sri Hamid also knew that Tan Sri Wan Sulaiman was in Kuala Lumpur in readiness for the proposed sitting. He did not directly instruct Tan Sri Wan Sulaiman to proceed to Kota Baru.
By failing to consider this crucial point the majority members misdirected themselves in coming to the conclusion that the conduct of Datuk George Seah amounted to 'misbehaviour'.
Datuk George Seah acted correctly 'in flying in the face of the Acting Lord President's directive (given through Datuk Harun Hashim)'. He responded to the directive of Tan Sri Wan Sulaiman to prevent an injustice.
In my opinion the conduct of Datuk George Seah did not amount to 'misbehaviour'. His dismissal was not justified.
| Chooi Mun Sou is an Advocate and Solicitor of the High Court of Malaya. He has also served as Treasurer of the Aliran Trust Board. This article is based on the second half of a paper that Chooi presented on 4 November 1988, soon after the judicial crisis had rocked the nation. The first part of his article had discussed the dismissal of the Lord President, Tun Salleh Abas. |
Source: Aliran
