1988 Malaysian constitutional crisis

The Sultan Abdul Samad Building housed the Supreme Court at the time of the 1988 Malaysian constitutional crisis.

The 1988 Malaysian constitutional crisis was a constitutional crisis that consisted of a series of events that began with United Malays National Organisation (UMNO) general election in 1987 and ended with the suspension and the eventual removal of Lord President of the Supreme Court of Malaysia Tun Salleh Abas from his seat. The Supreme Court in the years leading up to 1988 had been increasingly independent of the other branches of the government. Matters then came to a head when Mahathir bin Mohamad, who believed in supremacy of the executive and legislative branches, became Prime Minister. His eventual sacking of Salleh Abas is widely considered to mark a notable decrease of judicial independence in Malaysia.

Judicial intervention in a political dispute

In 1987, the United Malays National Organisation (UMNO) — a leading party in the governing Barisan Nasional coalition — held elections for its numerous offices. For the first time in twelve years, the incumbent President, Mahathir, was challenged. Tengku Razaleigh Hamzah was the candidate of "Team B" for the Presidency, taking on Mahathir, whose camp was labeled "Team A". There was an intense campaign to win the support of the roughly 1,500 delegates from party branches all over the country, who would elect the party officers. Razaleigh's supporters expected him to win, and at the UMNO General Assembly shortly after the votecounting was completed, rumours spread that Razaleigh had won. However, the official results declared Mahathir the winner, with 761 votes to Razaleigh's 718. The Team A candidate for Deputy President, Ghafar Baba, defeated Musa Hitam of Team B as well, and 16 of the 25 seats on the UMNO Supreme Council also went to Team A.

Razaleigh's supporters were upset by the election, which they insisted had to have been rigged. Their anger was exacerbated by Mahathir, who went on to purge all Team B members from the Cabinet. As a result, 12 UMNO members filed a lawsuit in the High Court, seeking a court order to void the election results and pave the way for a new election. The plaintiffs alleged that 78 of the delegates had been selected by branches not registered with the Registrar of Societies, and as a result were not eligible to vote. They also claimed that certain documents related to the election had been "tampered with". Although Razaleigh was not among the twelve plaintiffs, he was widely believed to be funding and co-ordinating the suit.

Later, one of the twelve withdrew from the case, but the remaining eleven continued to press on. The High Court eventually gave the parties a two week deadline to reach an out of court settlement. An UMNO "Unity Panel" was formed to handle the negotiations and reach a compromise. However, it soon became clear that the differences were intractable — Team B would settle for no less than a new election, while Team A insisted that the suit be withdrawn and a "face-saving" solution be reached which would allow some Team B members to remain in the party. Eventually the eleven plaintiffs declared they would seek a final judgement from the court.

This did not please Mahathir, who had clashed on several previous occasions with the judiciary. In one instance, a government order revoking the work permits of two foreign journalists critical of the government had been overruled by the Supreme Court. Mahathir began making heated attacks on the judiciary, telling Time, "The judiciary says, 'Although you passed a law with a certain thing in mind, we think that your mind is wrong, and we want to give our interpretation.' If we disagree, the Courts will say, 'We will interpret your disagreement.' If we [the government and Parliament] go along, we are going to lose our power of legislation." Mahathir also lashed out at "black sheep [judges] ... who want to be ... fiercely independent," accusing them of playing to public opinion. Immediately after this latter statement, the government reassigned several High Court judges to different divisions, including Justice Harun Hashim who was then hearing the UMNO case. However, as the latter case was already in progress, Harun's transfer would not take effect until the case closed.

Harun was thus forced to make the final call on the case of the "UMNO 11". Although most of the evidence they had presented was not contested, the UMNO defence argued that not all possible remedies within UMNO had been exhausted. The plaintiffs, however, insisted that the fact that at least 30 unregistered branches had sent delegates to the UMNO elections should have been enough to nullify their results. In the end, Harun dismissed the suit, citing Article 41 of the Societies Act 1966, which stated any society would automatically become "unlawful" if any of its branches were not registered with the Registrar of Societies. As a result, Harun declared he had no choice but to declare UMNO "an unlawful society", thereby rendering "[w]hat happened in 1987" a nullity. In his decision, Harun blamed Parliament for forcing his hand: "If the old law was in existence... [one could] apply the common law principle, but here it seems the Parliament, to ensure strict compliance with the law, has made this provision look harsh."

As soon as the decision was made public, Mahathir assured UMNO members that as the decision was based on minor "technicalities", the party could easily be restored as a lawful society. He also reminded the public that this did not threaten his status as Prime Minister, as only a no-confidence vote could lawfully remove him from power. Within a fortnight of Harun's decision, Mahathir announced the registration of UMNO Baru (New UMNO). UMNO Baru's leadership was almost entirely composed of Team A members, who proceeded to spend the next few months transferring the assets of the "old" UMNO to UMNO Baru. The UMNO 11 pursued their case to the highest court in the land, the Supreme Court, still seeking to hold new elections for the "old" UMNO and having its lawful status restored. However, their appeal was rejected. Razaleigh then decided to form a new party focused on the "spirit of 1946" — the year UMNO had been founded. UMNO Baru in turn decided that the "Baru" was superfluous, and officially dropped it from its name, in effect claiming to be the true successor to UMNO instead of Razaleigh's party, which would eventually call itself Semangat 46 (Spirit of 46).

Constitutional amendments

The "UMNO 11" case was just one of a number which had irritated Mahathir and the government. The case of the two journalists mentioned earlier had begun when John Berthelsen and Raphael Pura authored a series of articles on financial transactions of dubious ethical and legal nature carried out by government officials. The Asian Wall Street Journal which published them was promptly banned from the country, and Mahathir in his capacity as Home Affairs Minister had Berthelsen's and Pura's work permits revoked. However, the Supreme Court overturned the cancellation of Berthelsen's work permit because he had not been given a chance to answer the charges of the government. As a result, the ban on the Asian Wall Street Journal was also lifted. In a different case, the Supreme Court used its power of judicial review, and nullified amendments to the Criminal Procedure Code which gave the Attorney-General the power to initiate criminal proceedings in the High Court without first going to a Magistrate's Court. After Operation Lallang in 1987, where the government detained several political dissidents without trial under the Internal Security Act (ISA), the High Court granted Karpal Singh's application to be released from detention due to technicalities in the way he had been detained.

This last case did it for Mahathir. The following week, he submitted several constitutional amendments to Parliament, which vested all judicial powers in Parliament instead of the courts (Parliament would then delegate these powers to the courts), and created two equal High Courts — one for Malaya and one for Borneo, obscuring where the ultimate judicial authority for the whole nation resided in. In justifying the amendments, Mahathir stated: "...the courts have decided that in enforcing the law they are bound by their interpretations and not by the reasons for which Parliament formulated these laws ... lately the judiciary had seen fit to touch on matters which were previously regarded as solely within the executive's jurisdiction."

The Lord President of the Supreme Court, Tun Salleh Abas, was pressured by his fellow judges to respond to the government's actions. Salleh decided to convene a meeting of all 20 judges from the Supreme and High Courts in the capital of Kuala Lumpur. At the meeting, they agreed not to publicly reply to Mahathir's criticisms. Instead, they wrote a confidential letter to the Yang di-Pertuan Agong (King) and the Malay rulers, expressing their grievances. The proposed letter, which was unanimously approved, was written by Salleh Abas. The letter stated the judges' disappointment "with the various comments and accusations made by the Honourable Prime Minister against the Judiciary," but did not demand specific action be taken — instead, it ended with an expression of "hope that all those unfounded accusations will be stopped".

Suspension and removal of Tun Salleh Abas

In 1988, Tun Salleh Abas was brought before a tribunal convened by the then Prime Minister Dr Mahathir Mohammad on the grounds of misconduct. The tribunal was chaired by Tun Hamid Omar. In response to the tribunal, Tun Salleh Abas filed a suit in the High Court in Kuala Lumpur to challenge the constitutionality of the tribunal. While proceeding with the suit, Tun Salleh Abas applied for an interim stay against the tribunal until July 4, 1988. The request was denied.

Later however, five judges of the Supreme Court convened and granted Tun Salleh Abas an interlocutory order against the tribunal. Upon receiving the order, Tun Salleh Abas' solicitors proceed to the Parliament to represent the chairman of the tribunal the interlocutory order. The gate leading to the Parliament however was locked and Tun Salleh Abas' representative had to call in the police to be guaranteed a passage into the Parliament. Eventually, the order was presented to the tribunal chairman.

Soon after, the five judges were suspended. Out of the five, three were removed. This effectively suspended the Supreme Court. With the Supreme Court suspended, the challenge toward the legality of the tribunal could not be heard. The tribunal later removed Tun Salleh Abas from his office.

The irregular dismissal of Tun Salleh Abas led the Bar Council of Malaysia refusing to recognize the new Lord President. Around the same time, the Federal Constitution was amended to divest the courts of the "judicial power of the Federation", granting them instead such judicial powers as Parliament might grant them.

Legacy

Although many from the ranks of the opposition as well as the former government such as Tunku Abdul Rahman considered the sacking of Tun Salleh Abas abhorrent, Mahathir's supporters insisted that it had liberated the Malaysian judiciary from a colonial mindset. The sacking of several justices was justified by claims that these judges had been abusing public funds for their personal expenses — such as the purchase of luxury furniture from Italy. It was also claimed that the sackings had eliminated deadwood and improved efficiency in the courts, as evinced by a reduction in their backlog.

The effects of the crisis can still be felt today, as the Malaysian judiciary was so thoroughly cowed by the crisis that it never recovered its previous decision making independence. Perhaps the best illustration of this is the Anwar Ibrahim trial, wherein a guilty verdict was entered under extreme pressure from the government.

Notes and references

Other references

• Datuk George Seah (2004). "The hidden story" Retrieved Dec. 30, 2005.
• Datuk George Seah (2004). "Something's brewing In KL" Retrieved Dec. 30, 2005.
• Datuk George Seah (2004). "Drama in the capital" Retrieved Dec. 30, 2005.
• Datuk George Seah (2004). "The suspension of the Supreme Court" Retrieved Dec. 30, 2005.
• Datuk George Seah (2004). "Colonels judging the generals?" Retrieved Dec. 30, 2005.