Hashim Yeop Sani SCJ:

The Attorney-General Malaysia applied by way of notice of motion dated 11 July 1988 to set aside an ex-parte order dated 2 July 1988 restraining the tribunal appointed under Article 125(3) of the Federal Constitution from submitting any recommendations, report or advice respecting the enquiry into the representation concerning Tun Dato' Haji Mohamed Salleh bin Abas to His majesty the Yang di-Pertuan Agong until further order. In the Notice of Motion the grounds relied on for the application were -

(1) that the Supreme Court had no jurisdiction to make the aforesaid order by reason of the fact that the Court sat without the direction of the Chief Justice Malaya, who was then and still is exercising the powers of the Lord President, as required by s. 39(1) of the Courts of Judicature Act 1964; and/or

(2) the making of the aforesaid order was wrong in law in any event in the circumstances of the case.

At the outset of the hearing of the notice of motion, the learned Attorney-General informed the Court that in view of the fact that there is an originating summons in the High Court asking for a declaration on the interpretation of ss. 38 and 39 of the Courts of Judicature Act 1964 he was not proceeding on the first ground but would rely solely on the second ground.

Before we dealt with the Notice of Motion of the learned Attorney-General we had earlier in the proceeding dismissed two applications. The first application was by the five Supreme Court Judges who sat in the Supreme Court which issued the ex-parte order referred to and who are now suspended by the Yang di-Pertuan Agong under Article 125(5) of the Constitution pending reference of the representation made against them to the Tribunal to be appointed. Their application was for leave to intervene in the proceeding on the grounds that the issues to be determined in the notice of motion of the Attorney-General are "identical" with the issues to be considered by the tribunal yet to be appointed. We refused the leave to intervene because the basis of their application to intervene, namely what interpretation should be given to ss. 38 and 39 of the Courts of Judicature Act is no longer an issue to be decided in this proceeding after the Attorney-General stated that he was not proceeding with ground one of his application.

Apart from the fact that the basis of the application to intervene having been removed we also noted the jurisdiction of the Court to allow intervention is entirely discretionary and in our opinion since the tribunal which is yet to be appointed is not a Court of law, this is not therefore a proper case to allow the leave to intervene.

The second application we refused was the application to strike out the notice of motion of the Attorney-General. This application was made by Tun Haji Mohamed Salleh bin Abas who obtained the ex-parte order in question on 2 July 1988. The grounds relied on to strike out the notice of motion of the Attorney-General were firstly, that the tribunal constituted under Article 125(3) of the Constitution is intended to be independent of the government and therefore the Attorney-General is not entitled to represent the members of the tribunal; and secondly, that the Attorney-General had in fact participated in the proceedings of the tribunal representing the government and therefore it is now not competent for him to represent the members of the tribunal. Our short answer to that is that the Attorney-General is a public office under the Constitution. He was required by the rules of procedure of the tribunal to assist the tribunal. Article 145 of the Constitution properly read gives ample power to the Attorney-General to represent the government and any body or persons performing any functions under the Constitution.

Finally we came to the main notice of motion. The Attorney-General submitted that there are two grounds why the ex-parte order dated 2 July 1988 was wrong in law. The first ground was that the