The Judicial Crisis of 1988

SUARA MANDIRI Issue #1

In our national syllabus for civic education or general studies, we will have no doubt learnt about the concept of the separation of powers, whereby our government would have three independent branches i.e. the legislative branch (Dewan Rakyat & Dewan Negara in the Parliament), the executive branch (the Cabinet helmed by the Prime Minister and all the government agencies below it) and the judiciary branch (the High Courts, Court of Appeal and the Federal Court).

This idea of separation of powers has its roots from Montesquieu, a French philosopher during the Enlightenment era. In his seminal work, The Spirit of the Laws, he laid down the foundation of a government that has separate powers vested in different branches for different purposes, much like the one we are familiar with.

The caveat here, however, is not to mean that these separate branches of government can do whatever they want. But rather, to prevent the abuses of power and for each branch to exercise restraint over one another.

Malaysia’s journey to achieving the ideals of Montesquieu is far from a smooth one. In fact, our constitution has undergone numerous amendment that continues to erode the original spirit of the constitution. One need not go too deep into the history books to find that one such amendment that was made in 1988 was by far the most controversial amendment to the separation of powers in Malaysia.

UMNO Infighting: Team A v Team B, Prelude to 1988 Judicial Crisis

In 1987, Tun Mahathir was in a precarious situation as the party leader in UMNO and as the Prime Minister. The growing dissent within UMNO against Tun Mahathir was fuelled by allegations of corruption in the administration which led to his support base to slowly shrink.

At the time the UMNO party elections witnessed the fight between Team A, consisting of Tun Mahathir and Tun Ghafar Baba, and Team B, consisting of Tengku Razaleigh and Datuk Musa Hitam. Reports later hinted that both Tengku Razaleigh and Datuk Musa Hitam had ambitions to ascend to the top position of UMNO and the government, but Tun Mahathir presents an obstacle for them.

As the most senior member of UMNO at that time, Tengku Razaleigh felt that the president seat should go to him. This is compounded by the strong support base that he has to pursue his leadership aspirations. This act of breaking rank was uncommon and signalled that a shift within the party is due to take place. Blocs supporting their respective candidates started to emerge which further confirms this sentiment.

The belief held at the time was that Tun Mahathir’s support was not as strong as before since his victory was a Pyrrhic one, as the margin of victory was only 43 votes. Tengku Razaleigh proceeded to question the legitimacy of the election results.

The Case of Mohd Noor bin Othman & Ops Lalang

Perhaps it should not come as a surprise when Tengku Razaleigh’s faction brought a case against Tun Mahathir alleging electoral fraud within the party elections, which by and large exposed to the world the disharmony within the party. The opposition and civil society took this to attack Tun Mahathir resulting in further attacks on the government as an extension.

Fearing further discontent, the infamous Ops Lalang was launched under the guise of preserving racial harmony and unity. However, it was later proven that the operation was nothing more than a ploy by Tun Mahathir to silence his opposition both within the party and from civil society.

The culmination of that was a decision that was handed down by the High Court in the case of Mohd Noor bin Othman on 4th February 1988, that declared UMNO to be an illegal society owing to the “phantom votes” casted by “phantom branches”. This left the winners and losers of the election without a party and the country actually went on a period where we had our first caretaker Prime Minister that was not from UMNO and not a Malay Muslim.

Tun M Makes His Move

If declaring UMNO as illegal was not enough to put Tun Mahathir on the edge, then surely the subsequent cases ruled by the courts on matters relating to habeas corpus (unlawful detention) and press freedom ruled against the government would have done it.

In fact, Tun M had even once quoted Shakespeare’s Henry VI in jest,during a Cabinet meeting:

“The first thing we do (is) we hang the lawyers.”

This foreshadowed his ingenious solution because in March of 1988, the tabling and passage of Act A 704 in Parliament amended Article 121 of the Constitution, which previously vested all judicial powers with the courts into judicial powers conferred by the Parliament instead.

He later justified the amendment by alleging the judges were making laws in their own hands rather than following the intent of the legislation. To exacerbate the situation, Tun Mahathir even attempted to persuade the YDPA at the time, Tengku Mahmood Iskandar to sack Tun Salleh Abas by exercising his royal prerogative to do so.

The Judiciary Fights Back

The Judiciary led by Tun Salleh Abas then initiated a correspondence with the YDPA expressing their concerns of what has taken place and pleaded for His Majesty to intervene. Whether the YDPA held a personal grudge against Tun Salleh Abas for the former’s criminal case decades earlier was subject to rumours and speculation, but it certainly became another bullet in Tun Mahathir’s unholy crusade against the Judiciary as we will observe next.

Eventually, all attempts to stop the amendment had failed and resulted in a tribunal that was convened to accuse Tun Salleh Abas of misconduct.

The Tribunal Convenes

The tribunal was convened with judges from across the Commonwealth in a show of fairness and impartiality but a glaring inclusion was the acting Lord President of the Supreme Court of Malaysia, Tun Hamid Omar.

All credibility was thrown out of the window as Tun Salleh Abas’ own memoir, May Day for Justice, revealed that the Attorney General at the time was advising the tribunal every step of the way stopping short of actually writing the report himself.

Speculations were rife in alleging that Tun Hamid Omar was appointed by Tun Mahathir to further condemn Tun Salleh Abas’ situation, as the former eventually ascended to the apex court’s top position as the Lord President.

Aftermath

In the end, Tun Salleh Abas was removed as the Lord President without reprieve after the tribunal submitted its report to the YDPA. The fate of his fellow members of the bench varied as Tan Sri Wan Suleiman and Datuk George Seah suffered the same outcome as the former Lord President, while Tan Sri Eusoffe Abdoolcader, Tan Sri Wan Hamzah and Tan Sri Mohamed Azmi were reinstated.

The outcome was certainly not something anyone had imagined when the UMNO party election concluded the way it did, certainly no one had though that for a brief moment in Malaysia, we had no Prime Minister and no Supreme Court. Needless to say, this slew of suspensions and removal permanently tarnished the reputation of the judiciary.

Road To Restoration of Judicial Independence?

The judicial crisis had severely damaged public confidence in the judiciary. Among the first to comment on the matter was none other than our Father of Independence, Tunku Abdul Rahman, his comment is as follows:

“nothing occurred in all those years that so sullied the fair name of this country so completely as this sordid affair: it struck a terrible blow, not only to the independence of the Malaysian Judiciary - and ruined the careers of at least three honourable men - but to national pride itself. This affair has disillusioned and demoralised many lawyers. It has severely damaged the people's faith in the law and brought several judges into disrepute. It will take a long time for us to recover from the horror and shame of this episode.”

Prominent figures in the legal fraternity including retired Court of Appeal Judge Dato Seri Mohd Hishamudin and Professor Shad Saleem Faruqi observed at separate occasions that the crisis has produced questionable judgments and its effect is still felt today. The constitutional amendment in 1988 had deprived courts to exercise its function to keep the executive branch in check.

During the 90s, where Lingam-Gate happened and brought several judges including the Chief Justice of the time himself into a litany of accusations of corruption which was oddly not investigated further. A Royal Commission of Inquiry was convened but nothing much has changed since then.

35 years on, a judicial renaissance has emerged through landmark cases such as Semenyih Jaya and Indira Gandhi. In Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 the court had this to say:

“[90]  The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework.”

However, it appears that the Federal Court took a step back in the case of Letitia Bosman v Public Prosecutor and other appeals (No 1) [2020] 5 MLJ 277 where the courts had this to say:

“[113]  We cherish the doctrine of separation of powers. All three branches of the government must respect each other’s jurisdiction. Judiciary must respect the prerogatives of Parliament. Judicial decision, which undermines parliament’s lawful authority, would turn the rule of law on its head. The courts have the duty to uphold the FC. Judges must restrain themselves and should resist the temptations to encroach into the areas reserved to the other separate branches. It is important to keep our FC balance.”

It wasn’t just those in the judiciary who had ideas on judicial reform, the opposition was notably vocal on this issue as we observed in 2007, when an independent commission to correct injustice towards the courts and the judges was proposed. Though a year later in 2008, then Prime Minister, Ahmad Badawi decided to grant the 6 judges ex gratia compensation as a reparation to what took place.

The 1988 Judicial Crisis is complicated web of conspiracy, betrayal and power play by those seeking to consolidate power and control. It serves as a cautionary tale for us to remember that the judiciary needs to be restored to its former state. Lest we forget that the judiciary has always been the last bastion of the rakyat against anyone who attempts to dismantle the rule of law. Perhaps the quote by late Sultan Azlan Shah of Perak best surmises this sentiment:

“The existence of courts and judges in every ordered society proves nothing: it is their quality, their independence, and their powers which matter.”

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