Former Chief Judge of Malaya, Tan Sri Haidar Mohd Noor, should decline or withdraw as Chairman of the three-man panel on the authenticity of the Lingam Tape in view of his controversial role in the 1988 Judicial Crisis to allow for a Royal Commission of Inquiry to be formed to conduct full and comprehensive inquiries into the erosion and ravages of the independence, impartiality and integrity of the judiciary since 1988.

I also call on the other two members earmarked for the Lingam Tape panel, former Court of Appeal judge Datuk Mahadev Shanker and Tan Sri Lee Lam Thye to similarly decline or withdraw from the panel to send a clear and unmistakable message on behalf of all Malaysians and future generations — that the time has come not only for an untrammelled inquiry into the Lingam Tape with all its far-reaching and horrendous implications about perversion of the course of justice but the opportunity must not be missed to right the historic and generational wrongs in the past 19 years which saw Malaysia stumbling from one judicial crisis to another.

The question which Malaysiakini editor-in-chief, Steven Gan, asked in his editorial yesterday, “Will we miss the boat again”, must be asked by all Malaysians, including Shanker and Lam Thye.

Steven cannot be more right when he wrote:

“Almost a generation has suffered because of our ‘tidak apa’ attitude to the judicial crisis. Here’s another chance for us to make amends.

“We have missed the boat – not once but twice. Indeed, for the sake of the country, we cannot afford to blow this one chance.”

The establishment of an “Independent Panel” into the authenticity of the Lingam Tape instead of a Royal Commission of Inquiry into the rot in the system of justice in the past two decades and which had been highlighted by the Lingam Tape is the height of irresponsibility in trying to reduce the shocking scandal into a joke and a farce.

In the first place, why should there be an independent panel to establish the authenticity of the Lingam Tape when there had been no full denial for a week by the two personalities involved, senior lawyer V.K. Lingam or the Chief Justice, Tun Ahmad Fairuz Sheikh Abdul Halim as the so-called “denial” by Ahmad Fairuz through the Minister in the Prime Minister’s Department, Datuk Seri Nazri Aziz was clearly unsatisfactory and unacceptable.

In the second place, why should there be continued refusal to have a Royal Commission to conduct a wide-ranging inquiry into the rot in the system of justice because of the usurpation of the powers of the judiciary by the executive and the erosion of the fundamental principles of the independence, impartiality and integraity of the judiciary, a continuing national and international scandal for 19 years which had been re-opened by the Lingam Tape?

Are Malaysians to be blamed if they sense that there is a greater eagerness to find a technical excuse to “cover up” the Lingam Tape scandal than to grapple frontally with the serious allegations of the perversion of the course of justice on the fixing of judicial appointments and the fixing of judgments in the past 19 years?

I call on Shanker and Lam Thye to decline or withdraw from the three-man “Independent Panel” because no one should lend themselves to any stratagem which would, in Steven’s words, cause Malaysia to “miss the boat” to have probably the last opportunity to exorcise the ravages against an independent, impartial and incorruptible judiciary and lay the basis for the restoration of the Malaysian judiciary to its former high international repute and esteem.

Haidar should know that in these circumstances, considering his controversial role in the “mother” of the string of judicial crisis which afflicted the country in the past 19 years, it is most inappropriate for him to head any investigation to restore public confidence in the independence, impartiality and integrity of the judiciary.

Haidar, who was then the Chief Registrar of the Supreme Court, had played a crucial role in the sacking of Tun Salleh Abas as Lord President and Datuk George Seah and the late Tan Sri Wan Suleiman as Supreme Court judges.

Haidar’s role in the sacking of Salleh Abas, particularly with regard the third charge leveled against Salleh at the Judicial Tribunal, can be read from Salleh Abas’ accounts of the “mother” of all judicial crisis in Malaysia, particularly from “May Day for Justice” by Tun Salleh Abas with K. Das.

In his “Postmortem of the 1988 judicial crisis” in Aliran Monthly 2005, Datuk George Seah made the following reference to Haidar:

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.

Haidar should clarify his role in the 1988 “Mother of all judicial crisis” in Malaysia and the arbitrary and unconstitutional sacking of Tun Salleh Abas as Lord President Datuk George Seah and the late Tan Sri Wan Suleiman as Supreme Court judges before he takes up any role connected with restoring national and international confidence in the independence, impartiality and integrity of the judiciary.