In 1988, the Malaysian judiciary, being the third pillar of a parliamentary democracy modelled on the Westminster style, was in convulsion. The Lord President was removed from office; five Supreme Court judges were suspended. The highest court in the land was effectively dismantled to protect political interests. What followed was a constitutional coup, guised under the veil of institutional legitimacy.
Prelude
The Supreme Court had been increasingly asserting its independence through the mid-1980s, overturning government decisions on press freedom, criminal procedure, and detention without trial (Means, 1991, p. 236-237). Mahathir responded with heated attacks on the judiciary, telling Time magazine that if judges continued to interpret laws contrary to Parliament’s intent, the government would lose its power of legislation. He lashed out at judges who wanted to be fiercely independent, accusing them of playing to public opinion (Means, 1991, p. 216). Mahathir’s public statements likening the judiciary to a branch of government service such as the army or civil service “arguably reflected a lack of appreciation of the separation of powers” (Panel of Eminent Persons, 2008). This is perhaps unsurprising, given that the three Prime Ministers preceding him: Tunku Abdul Rahman, Tun Abdul Razak, and Tun Hussein Onn, were English-trained lawyers steeped in Westminster constitutional tradition, while Mahathir was a medical doctor by profession with no formal legal training (Wu, 1999).
The UMNO Crisis
In April 1987, the UMNO presidency was contested between Team A comprising Mahathir and Ghafar Baba, and Team B under Tengku Razaleigh Hamzah. Mahathir won by a razor-thin margin of just 43 votes (Robinson, 1988). 11 UMNO members filed a lawsuit seeking to nullify the election. High Court Judge Dato Harun Hashim, rather than adjudicating the dispute on its merits, declared UMNO itself an unlawful society, citing Article 41 of the Societies Act 1966, on the grounds that 30 unregistered branches rendered the organisation illegal (Robinson, 1988). He dismissed the plaintiffs’ claims, reasoning that members of an unlawful society could not acquire rights founded on which that is unlawful (Seah, 2005). It was an order that neither the plaintiffs nor the defendants had sought.
Hence, the UMNO 11 appealed to the Supreme Court. That appeal would never be heard by judges of the court that was meant to decide it.
The Suspension of the Lord President
On 26 March 1988, Lord President Tun Salleh Abas wrote a letter to the Yang di-Pertuan Agong on behalf of the judiciary, unanimously approved by all 20 Supreme and High Court judges, expressing disappointment with the Prime Minister’s attacks on the judiciary. Mahathir claims the Agong considered this “highly improper and insulting” and personally requested Salleh’s removal (Mohamad, 2008).
In May 1988, during a sitting in Ipoh, Tun Salleh Abas decided to convene a full bench of nine Supreme Court judges to hear the UMNO 11 appeal, fixed for 13 June 1988. Instructions were given on 24 May (Seah, 2005). Three days later, Tun Salleh was suspended from office, and given that a nine-judge bench would have decided, with finality, the legitimacy of the 1987 UMNO election, and thereby the legitimate Prime Minister — the proximity between the decision and the suspension spoke for itself (Seah, 2005). The full bench never sat.
Tan Sri Abdul Hamid Omar was appointed Acting Lord President and immediately vacated the 13 June hearing date (Seah, 2005).
The Manoeuvring
The Acting Lord President then engaged in what Datuk George Seah, a Supreme Court judge himself, described as a deliberate effort to keep particular judges away from Kuala Lumpur. Despite three other judges being free and available, Seah was dispatched to Kota Bharu. The reason, Seah argued, was to ensure the most senior judges would not be in the capital to intervene in Tun Salleh’s pending legal challenge to the Tribunal (Seah, 2005).
In Kota Bharu, Seah received two conflicting orders: Tan Sri Wan Sulaiman instructed him to return to KL immediately; the Acting Lord President, through Dato Harun Hashim, directed him to remain and preside. Seah chose to obey Wan Sulaiman as he had agreed to be a panel member, not to preside, and two judges could not constitute a valid coram under Section 38(1) of the Courts of Judicature Act 1964. So, he flew back that evening (Seah, 2005).
2 July 1988: The Supreme Court Acts
Tun Salleh Abas had filed suit challenging the constitutionality of the Tribunal. His counsel’s application for an interim stay was refused by High Court Judge Dato Ajaib Singh on Saturday, 2 July 1988. Raja Aziz Addruse went directly to Tan Sri Wan Sulaiman, the most senior Supreme Court judge in Kuala Lumpur, who convened a special sitting of five judges that same Saturday with Wan Sulaiman presiding, Datuk George Seah, Tan Sri Mohamed Azmi, Tan Sri Abdoolcader, and Tan Sri Wan Hamzah.
The five judges unanimously granted an interlocutory order prohibiting the Tribunal from submitting any recommendation or report to the Yang di-Pertuan Agong (Seah, 2005). When solicitors went to Parliament House to serve the order, they found the gate locked. Wan Sulaiman contacted the Deputy Inspector-General of Police, who directed the constable to open the gate, and service was effected that Saturday morning.
The Axe Falls
On 6 July 1988, all five judges were suspended. With the Lord President already suspended, six of the Supreme Court’s ten members had been taken out. This was, as Seah argued, tantamount to a suspension of the highest court in the land itself, something for which the Federal Constitution made no provision (Seah, 2005).
A hastily assembled Supreme Court comprising Tan Sri Hashim Yeop Sani, Dato Harun Hashim, and three High Court judges set aside the interlocutory order. Tun Salleh Abas was removed from office on 8 August 1988. The UMNO 11 appeal was dismissed the following day, by a panel presided over by Tan Sri Abdul Hamid himself, the same man who chaired the Tribunal that had just removed the Lord President.
The Second Tribunal
A second Tribunal was convened against the five suspended judges. The majority judgment recommending the dismissal of Wan Sulaiman and Seah was delivered by three High Court judges ranked 13th, 14th, and 25th in seniority out of 26 on the bench (Seah, 2005). At least ten more senior judges were available. Young colonels were appointed to sit in judgment against generals . In October 1988, Wan Sulaiman and Seah were dismissed, while Azmi, Abdoolcader, and Wan Hamzah were reinstated.
The Constitutional Amendment
On 10 June 1988, the government amended Article 121(1) of the Federal Constitution. The original provision had stated that “the judicial power of the Federation shall be vested in” the High Courts. After the amendment, courts would have only “such jurisdiction and powers as may be conferred by or under federal law” (Wu, 1999; Malaysian Bar, “Amendment of Art 121(1)”). The judiciary would no longer derive its authority from the Constitution itself but from whatever Parliament chose to grant it, creating the perception that courts were deprived of their inherent jurisdiction and right of judicial review (Malaysian Bar, “Request for Amendment to Article 121(1)”).
The executive must appreciate that it is not obligatory for the judiciary to be suppliant and subservient to it. Checks and balances are necessary to prevent the overconcentration of power between the branches of government. The amendment to Article 121 struck at the heart of this principle, subordinating the judiciary to Parliament and, through Parliament, to the executive of the day.
Mahathir’s Defence
Mahathir has never accepted this characterisation. The trigger, he insists, was two letters Tun Salleh wrote to the Yang di-Pertuan Agong — one complaining about noise from renovation works at the royal palace, the other protesting executive interference — both copied to the other Rulers. According to Mahathir, the Agong personally requested Salleh’s removal, and he merely followed constitutional procedure. He maintains he tried to persuade Tun Salleh to resign quietly, and that it was Salleh and his fellow judges who brought the judiciary into disrepute. In Mahathir’s words: “I do not expect my detractors to stop saying that I destroyed the judiciary. They are my prosecutors and they are also my judges” (Mohamad, 2008).
The Aftermath
In 2008, Prime Minister Abdullah Ahmad Badawi offered ex gratia payments to Tun Salleh Abas and the affected judges, calling the crisis one from which the nation had never recovered (Wikipedia, “1988 Malaysian constitutional crisis”). Tun Salleh welcomed the gesture, saying he had suffered so much humiliation that he had withdrawn from public life and taken solace in being a farmer (Wikipedia, “1988 Malaysian constitutional crisis”). Wan Sulaiman’s wife was less satisfied, saying that without an apology, people would not know that her husband was not guilty (Wikipedia, “1988 Malaysian constitutional crisis”).
Whether Malaysia’s judiciary has ever fully recovered from 1988 is a question that remains open and worth pondering. Smoke and mirrors may cloud the present, though time will eventually render its verdict in truth.
References
Malaysian Bar (2012) ‘The Malaysian Bar’s Request for Amendment to Article 121(1) of the Federal Constitution’. Available at: https://www.malaysianbar.org.my/article/news/bar-news/news/the-malaysian-bar-s-request-for-amendment-to-article-121-1-of-the-federal-constitution
Malaysian Bar (n.d.) ‘Amendment of Art 121(1)’. Available at: https://www.malaysianbar.org.my/cms/upload_files/document/amendment%20of%20art%20121(1).pdf
Malaysiakini (2017) ‘Judicial power restored after almost 20 years’, 28 April. Available at: https://www.malaysiakini.com/news/380492
Means, G.P. (1991) Malaysian Politics: The Second Generation. Oxford: Oxford University Press.
Mohamad, M. (2008) ‘The Tun Salleh Saga’, Malaysian Bar, 14 June. Available at: https://www.malaysianbar.org.my/article/news/legal-and-general-news/general-news/tun-dr-mahathir-the-tun-salleh-saga
Panel of Eminent Persons (2008) Report on the 1988 Judicial Crisis in Malaysia. Kuala Lumpur: Malaysian Bar. Available at: https://www.malaysianbar.org.my/cms/upload_files/document/PanelofEminentPersonsReport.pdf
Robinson, S. (1988) ‘Court declares ruling party illegal, nullifies inter-party election’, United Press International, 4 February. Available at: https://www.upi.com/Archives/1988/02/04/Court-declares-ruling-party-illegal-nullifies-inter-party-election/7826570949200/
Seah, G. (2005) ‘Crisis in the Judiciary’, Malaysian Bar, 13 May. Available at: https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/crisis-in-the-judiciary
Wikipedia (n.d.) ‘1988 Malaysian constitutional crisis’. Available at: https://en.wikipedia.org/wiki/1988_Malaysian_constitutional_crisis
Wu, M.A. (1999) ‘The Malaysian Judiciary: Erosion of Confidence’, Australian Journal of Asian Law, 1(2). Available at: https://search.informit.org/doi/pdf/10.3316/informit.627725575930665
