Morgan Phrasaddha Naidu Puspakaran

Constitutional Law 1

CONSTITUTIONAL CRISES THAT HAS

ENGULFED MALAYSIA IN THE
PREVIOUS YEARS

“The 1988 Malaysian Constitutional

Crisis”

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Constitutional Law 1

Biodata

Name Morgan Phrasaddha Naidu A/L Puspakaran

IC Number 981113-07-5967
Matric Number 255843
Course Bachelor in Law with Honors
Subject Constitutional Law 1
Lecturer’s Name Prof. Madya Dr. Rusniah Bt Ahmad
University University Utara Malaysia

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Constitutional Law 1

Acknowledgement

A very good day to all readers of my Constitutional Law 1 assignment. All praises to God for

giving me the patience to overcome all the obstacles during the process of completion of this

assignment.

During the process of preparing my assignment, I had to request the help and guideline of

some respected individuals, who deserve my greatest gratitude. The completion of this

assignment gives me utter happiness and satisfaction in whole.

We would like to express our gratitude to Madam Prof. Madya Dr. Rusniah Bt Ahmad of

Universiti Utara Malaysia, my respected lecturer for the subject of Constitutional Law 1 for

giving me a perfect guideline about this assignment throughout my numerous consultations

with her. I would also like to expand my deepest gratitude to all those who have directly or

indirectly guided me in preparing and completing this assignment.

In addition, a word of gratitude to my parents, siblings and all my classmates as their

moral support had an everlasting effect that boosted me to complete this assignment.

I also thank the University Utara Malaysia for giving us the permission to use their

premises such as the library and student lounge for reference purposes of this

assignment.

Yours Sincerely,

Morgan Phrasaddha Naidu Puspakaran

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Table of Contents

Contents Page Number

Definition 5

Issue 6

Impacts 11

Corrective Measures 16

Steps to Avoid in Future 18

Conclusion 25

References 27

Lecture’s Comments 28

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Definition of Constitutional Crisis

A constitutional crisis refers to a situation dealing with inability to resolve a disagreement

involving the governing constitution of a political body. Basically, a dispute or violation of a

provision in the constitution between the different branches of the ruling government is

involved. A constitutional crisis may threaten to break down the function of the ruling

government in whole.

In political science, a constitutional crisis is a crisis of government administration, which

the political constitution of a legal system appears unable to resolve. The crisis usually

interferes with the orderly operation of government. In general, a constitutional crisis results

when factions within a government ideologically disagree about the extent to which each

faction holds sovereignty to legally exercise administrative power. Specifically, a

constitutional crisis results from internal conflict among the branches of government such as

executive, legislative and judiciary or, in a federal system, between the state and federal levels

of government.

In the course of government, the crisis results when one or more of the parties to a political

dispute willfully chooses to violate a law of the constitution. Moreover, if the crisis arises

because the constitution is legally ambiguous, the ultimate politico-legal resolution usually

establishes the legal precedent to resolve future crises of constitutional administration.

Politically, a constitutional crisis can lead to administrative paralysis and eventual collapse of

the government, the loss of political legitimacy, or to civil war. A constitutional crisis is

distinct from a rebellion, which occurs when political factions outside a government challenge

the government's sovereignty, as in a coup d'étator a revolution led by the military or by

civilians.

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Issue: The 1988 Malaysia

Constitutional Crisis

The 1988 Malaysian constitutional crisis (also known as the 1988 judicial crisis) was a series

of events that began with United Malays National Organisation (UMNO) party elections in

1987 and ended with the suspension and the eventual removal of the Lord President of the

Supreme Court, 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 Mohamad, who believed in the supremacy of the

executive and legislative branches, became Prime Minister. Many saw his eventual sacking of

Salleh Abas and two other Supreme Court judges as the end of judicial independence in

Malaysia, and Mahathir's actions were condemned internationally.

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 labelled "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.

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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 over-ruled 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

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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 "what 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,

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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).

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 whenJohn

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 Lalang 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, divesting the courts of the "judicial power of the Federation" and

giving them only such judicial powers as Parliament might grant them. 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

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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".

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Impacts to the Legal System of

Malaysia Due to The Malaysian 1988
Constitutional Crisis

It is deliberately the truth that by now, after some 27 years since that dark episode, the

judiciary has probably recovered, but it still recovered just to a very limited extent amd has

yet much more to recover from.

“The negative public perception against the judiciary is still there,” Hishamudin said in an

interview with The Star newspaper referring to the issue. He said Salleh and the five Supreme

Court judges were innocent of the charges.

In 1988, Salleh was brought before a tribunal for misconduct, and the five Supreme Court

judges who granted him an interim order against the tribunal were either sacked or suspended.

“Indeed, as the late Tun Suffian (a former Lord President) had said many years ago in his

speech in honour of the late Tan Sri Wan Sulaiman (one of the two Supreme Court judges that

was unjustly dismissed in the assault of 1988) on March 10, 2000, ‘I had predicted that our

judiciary would take a whole generation to recover from the assault. Now more than 12 years

have lapsed. I doubt if the judiciary would recover in a generation from today’,” Hishamudin

added.

Hishamudin stressed that a judge is required by his oath of office to dispense justice in

accordance with the law and the constitution, and without fear or favour. “Judgeship is a

public trust,” he said.

Malaysia’s judiciary has remained under a cloud since the 1988 constitutional crisis that saw

the dismissal of Salleh during the administration of Tun Dr Mahathir Mohamad.

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Suspension and Removal of Tun Salleh Abas and Other Judges

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 4 July 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 present 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. The judges were Tan Sri Azmi Kamaruddin, Tan

Sri Eusoffe Abdoolcader, Tan Sri Wan Hamzah Mohamed Salleh, Tan Sri Wan Suleiman

Pawanteh and Datuk George Seah. 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. Tan Sri Wan Sulaiman

and Datuk George Seah were also removed from office. The other three judges were later

reinstated.

The irregular dismissal of Tun Salleh Abas led the Bar Council of Malaysia refusing to

recognise the new Lord President. Around the same time, the Federal Constitution was

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amended to divest the courts of the "judicial power of the Federation", granting them instead

such judicial powers as Parliament might grant them.

Legacy

A major critic to Mahathir's actions include Malaysia's first Prime Minister, Tunku Abdul

Rahman. In a New York Times article, he was said to be "disgusted" at the actions. His views

however were criticised by the then Education Minister, Anwar Ibrahim, who claimed that the

Tunku was ″a grand old man who has done his bit.″

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.

Call to Revisit the Case

Mahathir Mohammed stepped down from the premiership in 2003, having chosen Abdullah

Ahmad Badawi to succeed him. In 2006, the relationship between the two became less than

warm as Mahathir started to criticise the latter's policies. During this period, many begin

calling for the judiciary or government to review the decision against the sacked judges.

Among the loudest advocates of the review was Tun Salleh Abas himself. The administration

dismissed such calls. Minister in the Prime Minister's Department Nazri Aziz, who was

then de facto Law Minister, said that he was not convinced of the need to review the case.

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After the 2008 general election which saw heavy losses for BN, Abdullah reshuffled his

Cabinet. Within days of his appointment, new de facto Law Minister Zaid Ibrahim stated that

the government had to openly apologise for its handling of the crisis, calling it one of his three

main goals: "In the eyes of the world, the judicial crisis has weakened our judiciary

system." However, he rejected the idea of reviewing the decision: "I am not suggesting that

we re-open the case. I am saying that it’s clear to everyone, to the world, that serious

transgressions had been committed by the previous administration. And I believe that the

prime minister is big enough and man enough to say that we had done wrong to these people

and we are sorry." The Bar Council welcomed the proposal. Newly appointed Domestic Trade

and Consumer Affairs Minister Shahrir Abdul Samad also voiced support: "The Government

has apologised for so many other things to the people, such as the untimely destruction of

temples and other issues. So, why not an apology to a former Lord President?"

Zaid's proposal was criticised by former Bar president Param Cumaraswamy, who insisted

that Mahathir's administration, not Abdullah's, should assume responsibility: "Those who

perpetrated the transgressions are still alive and they must be called to account for their

conduct and seek forgiveness from the six valiant judges, their families and Malaysians

generally for the sacrilege committed to the temple of independent justice." He also proposed

that the government compensate the three sacked judges since "reinstatement of the three

dismissed is no longer possible." Karpal Singh, lawyer and opposition member of Parliament,

agreed: "Calling for the present administration to apologise is not a step in (the) right

direction. It is not the present administration that convened those tribunals." Instead, Karpal

suggested that a Royal Commission be set up. A few days later, The Malaysian Insider, a

news website, reported that the Cabinet was critical of the proposal, citing the potential for

legal liability if the government admitted wrongdoing. Zaid said that the proposal was still

being considered, and that "we have to wait."

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Changes in Legal System

The position of Lord President no longer exists, superseded by the rank of Chief Justice, while

Malaysia also replaced the Supreme Court with the Federal Court in 1994.

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Corrective Measures Taken to Solve

the Issue

In April 2008, at a dinner with 600 members of the Bar and leaders from the

opposition Pakatan Rakyat coalition, Abdullah Ahmad Badawi acknowledged the impact of

the crisis:

To a large extent, the events of 1988 have fueled much of the disagreement on how to move

on.... I can say with a clear conscience that I abided and will continue to abide by the principle

of separation of powers, leaving the matter of justice to the judiciary. And yet the legacy of

1988 haunts us until today. ... For many, the events of 1988 were an upheaval of the nation's

judicial system. Rightly or wrongly, many disputed both the legality and morality of the

related proceedings. For me, personally, I feel it was a time of crisis from which the nation

never fully recovered.

He then announced that the government would make ex gratia goodwill payments to the

sacked and suspended judges: "I do not presume to equate your contribution, pain and loss

with mere currency but I hope you could accept this as a heartfelt and sincere gesture to mend

what had been." However, he refused to explicitly apologise for the events of 1988 or

otherwise review them, saying it would "prolong the sense of crisis". Abdullah also

announced his intention to set up a judicial appointments commission as part of his plans to

reform the judicial system. Two of the six judges involved in the 1988 crisis — Tun Salleh

Abas and Azmi Kamaruddin — and the families of the other four were present.

Zaid welcomed Abdullah's announcement in spite of the lack of a formal apology, saying:

"(One) can say sorry in other ways." George Seah's son told the press that although all his

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father wanted was an apology, the family would not reject any goodwill payments. Tan Sri

Wan Suleiman Pawanteh's wife said: "Although I thank the prime minister, I feel less than

satisfied at his decision (not to make a straightforward apology). This is not the end of the

story for me. (Without an apology) I don't know, people don't know, that my husband was not

guilty. I want my husband's name to be cleared. I feel my husband was innocent. He was an

honest judge...Even so, I am thankful that our prime minister cares about us enough (to do this

much)." Tan Sri Eusoffe Abdoolcader's granddaughter regretted that acknowledgement had

been so late in coming: "I wish he was here. He's the main person affected by all this. It's a

different case from the others (Salleh and Wan Suleiman) because he was reinstated. It's been

12 years. It should have been solved earlier."[30] Tun Salleh Abas however welcomed

Abdullah's statement, saying: "I feel great. It was something I didn't expect. I suffered so

much humiliation ... so much so I ran away from the public and took solace in being a

farmer."

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What Should Malaysia Do to Avoid

Such Issue in Future

Separation of Powers

It is axiomatic that we should never forget the past in order to shape a better future. On 31

August 1957, in Merdeka Stadium at Kuala Lumpur, Tunku Abdul Rahman, the first Prime

Minister of the Federation of Malaya (later, Malaysia), proclaimed that the federation "shall

be forever a sovereign democratic and independent State founded upon the principle of liberty

and justice and ever seeking the welfare and happiness of its people and the maintenance of a

just peace among all nations". Two other features of that "Proclamation of Independence"

should be noted: first, the proclamation was effected "with the concurrence and approval of

Their Highnesses the Rulers of the Malay States"; secondly, he was proclaiming and declaring

"on behalf of the people".

Reflecting on that moment in 1957, it can be seen that Tunku Abdul Rahman was setting out a

grand vision of a vibrant democracy, with liberty and justice as its guiding principles. The

mandate for that proclamation was the will of the people, that is, a democracy based on

popular sovereignty. The fundamental importance of the Malay Rulers in the creation of a

new independent nation was obvious.

The constitutional scheme of the Merdeka Constitution clearly embraced a separation of

powers within the Westminster context.

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There was a firm demarcation between, on the one hand, the judicial power, and, on the other,

the legislative and the executive powers. The framers of the Constitution were eminent jurists

who were undoubtedly conversant with the famous words of Montesquieu:

[T]here is no liberty, if the judiciary power be not separated from the legislative and

executive. Were it joined with the legislative, the life and liberty of the subject would be

exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the

executive power, the judge might behave with violence and oppression.

The Judicial Power

The classic definition of "judicial power" was provided by Chief Justice Griffith of the High

Court of Australia in Huddart Parker v Moorehead and was expressed as follows: "the power

which every sovereign authority must of necessity have to decide controversies between its

subjects or between itself and its subjects, whether the rights relate to life, liberty or property."

This definition was endorsed by Zakaria Yatim J and referred to by Hashim Yeop A Sani SCJ

(dissenting) in the Malaysian case of Public Prosecutor v Dato' Yap Peng.

Judicial Independence

Constitutional government embodies the notion of the rule of law. There are certain

fundamental requirements to ensure the existence of that notion. According to Professor

Joseph Raz, they include the following: (1) the independence of the judiciary must be

guaranteed; (2) the principles of natural justice must be observed if the law is to be able to
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guide action; and (3) the courts should have the power to examine the actions of the other

branches of government in order to determine whether they conform with the law. Professor

SA de Smith viewed "effective legal guarantees of basic civil liberties enforced by an

independent judiciary" 25 as one of the essentials of constitutionalism.

The exercise of the judicial power in a country "founded upon the principles of liberty and

justice" therefore requires the existence of an independent judiciary. A number of provisions

were inserted by the framers into the Constitution to maintain judicial independence. Removal

of a judge can only be effected following a recommendation by a tribunal that a judge should

be removed on the ground of a breach of the code of ethics or on the ground of inability, from

infirmity of body or mind or any other cause, to properly discharge the functions of the

judge's office. Subject to the removal procedures, judges hold office till the age of 66. Judicial

remuneration cannot be varied to the disadvantage of a judge during his or her term of office.

A constitutional prohibition is placed upon the discussion in either House of Parliament of the

conduct of a judge of the Federal Court, Court of Appeal or High Court, except on a

substantive motion of which notice has been given by not less than one-quarter of the total

number of members of that House. Thus, the Malaysian Constitution does contain the

safeguards of judicial tenure and remuneration which are normally found in most democratic

constitutions which accord significant protection to the judicial power and the constitutional

sentinels which wield that power.

Why, it may be asked, is judicial independence so crucial for the attainment of constitutional

government? First of all, Art 4(1) of the Malaysian Constitution proclaims the Constitution to

be the "supreme law" of the Federation and that a law which is inconsistent with the

Constitution "shall, to the extent of the inconsistency, be void". It makes sense that there must

be a neutral or impartial umpire to ensure the supremacy of the Constitution. The judiciary

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was envisaged by the framers of the Constitution to perform that role. It exercises the potent

power of judicial review: it can declare invalid legislation enacted by the Federal Parliament

or the legislature of a State on the ground that the Federal Parliament or State legislature lacks

power to make such laws. Because the Constitution embodies fundamental liberties, the

protection of such liberties, subject to express constitutional caveats, is entrusted to the

judiciary.

Judicial Independence - Attacks on the Courts

Considering that Malaysia achieved its independence less than 50 years ago, the period of

public disquiet over the judiciary by comparison is a fairly prolonged one. A number of

episodes have occurred which have generated concerns about the standing of the judiciary. A

former Lord President, Sultan Azlan Shah, was aggrieved to hear of various allegations made

against the judiciary. He wrote:

Since Independence, the early judges had always cherished the notion of an independent

judiciary and had built the judiciary as a strong and independent organ of government. The

public had full confidence in the judiciary and accepted any decision then made without any

question. Unfortunately, the same does not appear to be the case in recent years.

Since the expression of this view by Sultan Azlan Shah, the upholding of the Anwar appeal

case by the Federal Court which led to the quashing of his convictions pertaining to sexual

misconduct has removed the international spotlight from the Malaysian judiciary and has

given it the opportunity to work towards a full restoration of public confidence in its integrity,

impartiality and independence.

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The travails facing the Malaysian judiciary are not peculiar to Malaysia. Around the world,

the judicial organ is coming under increasing scrutiny. There have been attempts, even in the

established democracies, to erode judicial independence, albeit not on the scale and of the

intensity manifested in the 1988 removal of Lord President Tun Salleh and two senior

Supreme Court justices. I will touch on some of these attempts to highlight the need for

constant vigilance in protecting the judiciary. It is also useful to consider some of the reforms

which have been proposed or are occurring in other countries which seek to strengthen the

foundations of judicial independence.

Security of Tenure of Judges

In order for the judicial power to be exercised in a manner compatible with constitutional

government it is a self-evident proposition that the sentinels of this power should be

guaranteed security of tenure. When the judicial power is exercised against the State there

should be no possibility of retaliation against the judge concerned. The citizen who is

challenging an abuse of power by the State must be assured that the adjudication is effected in

an impartial and independent manner. The public's confidence in the impartiality and

independence of the judges is secured by ensuring that judges cannot simply be removed

according to the whims and fancies of the government of the day.

Constitutional government requires entrenched protection of judges by providing them with

security of tenure, which is manifested in different forms. In general, some constitutions have

opted for a tribunal system for removing judges; others have opted for the parliamentary

removal process. Security of tenure is one way of ensuring a judge's fidelity to his or her oath

of office. In Malaysia, judges, upon their appointment, swear that they will faithfully

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discharge their judicial duties, bear true faith and allegiance to Malaysia, and will preserve,

protect and defend the Constitution. Judges of the High Court of Australia take the following

oath:

I do swear that I will bear true allegiance to her Majesty . . . that I will well and truly serve her

in the office of Justice of the High Court of Australia and that I will do right to all manner of

people according to law without fear or favour, affection or ill will . . .

Although the phraseology is different, the Malaysian judicial oath (or affirmation) of office

also connotes the promise to "do right to all manner of people according to law without fear

or favour, affection or ill-will". Upon taking the oath of office, the Malaysian judge, like all

judges of the common law world, has tapped into a proud judicial tradition of independence,

impartiality and integrity, which stretches back to the time when a courageous Coke CJ

responded to an angry and all powerful King James I of England with a famous line: "[T]he

King should not be under man, but under God and the Laws [sic]".

Judicial Appointments

The following observation made in the context of the New Zealand experience is equally apt

for Malaysia and Australia: "Judicial appointments do . . . remain within the gift of the

government of the day". In considering the government's prerogative to appoint judges to fill

judicial vacancies, Professor Enid Campbell and I in our book, The Australian Judiciary, said:

In appointing judges, a government owes a duty to the people . . . to ensure appointees of the

highest calibre. Judicial independence can also be subverted by the appointment of persons

who do not possess an outstanding level of professional ability, intellectual capacity and

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experience and integrity, and who cannot shake off a sense of gratitude to the appointing

authority. It is not in the interests of the . . . people to have their judicial tribunals reduced to

timorous institutions.

In Australia, in relation to the appointment of High Court justices, there is only a statutory

requirement for the federal Attorney-General to consult the Attorneys-General of the States.

Consultation outside this statutory requirement depends on the person holding the office of

federal Attorney-General. A former Chief Justice of the High Court of Australia, Sir Harry

Gibbs, said:

There is no formal procedure for consultation between the executive and the judiciary or the

legal profession. However in practice it is not uncommon for an Attorney-General to consult

with the Chief Justice or with other members of the profession with regard to a prospective

appointment, but sometimes an appointment may be made without consultation and

sometimes advice may be received but ignored.

However, a free press and a vocal legal profession can ensure that the power of judicial

appointment is not blatantly abused. In 1913, the federal Attorney-General (WM Hughes)

wanted to appoint Mr AB Piddington to the High Court. Mr Piddington received the

following cable from an intermediary of the Attorney-General while he was travelling

overseas: "Confidential and important to know your views Commonwealth versus State

Rights. Very Urgent".

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Conclusion

Governments do not wish to be told, to be reminded that their political will does not always

prevail. They do not like to be told that the courts stand as the last line of defence between the

government and the citizen.

It has always been one of the pillars of freedom, one of the principles of liberty for which on

recent authority we are now fighting, that the judges are no respecters of persons and stand

between the subject and any attempted encroachments on his liberty by the executive, alert to

see that any coercive action is justified in law.

It is thus inevitable that there will be times when tensions will arise between the executive and

legislative arms of government and the judiciary. However, this should not obscure the

understanding that the undermining of public confidence in the judiciary is detrimental to the

attainment of Tunku Abdul Rahman's grand vision of a nation founded on liberty and justice.

A respected, independent and impartial judiciary diverts conflicts and riots in the streets to

resolution by logic and reason in the calm atmosphere of the courts. An independent judiciary

may be the least dangerous branch of government but there is an obligation on every citizen to

ensure that it does not become an endangered branch.

Federal Constitution only provides for the suspension and removal of a Judge of the Supreme

Court on the grounds of misbehaviour or of inability, from infirmity of body or mind or any

other reason, properly to discharge the functions of his office. It is my considered opinion that

the suspension of the five Supreme Court Judges, coupled with the suspension of the

incumbent LP, Tun Salleh Abas which amounted to 6 out of 10 members or 60 per cent of the

Supreme Court was tantamount to the suspension of the entire Supreme Court.

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The Federal Constitution does not, directly or indirectly, contain any provision whatsoever for

the suspension of the Supreme Court. It must be remembered that the Supreme Court is the

third branch of the Government based on parliamentary democracy with its inherent rights.

Britain’s King George III tried to interfere with the Judiciary and was subsequently

dethroned.

It should have been manifestly obvious to the Tribunal that the Acting Lord President became

unable to act to schedule a sitting on the Tun Salleh case by reason of his being a Respondent

in that case. It follows that the power naturally devolved on Tan Sri Wan Suleiman under

Section 9 as the next senior most Supreme Court Judge, since the Chief Justice of Borneo was

also a Respondent in the Tun Salleh proceedings. The Tribunal took the stand that "it is not

constitutionally empowered to interpret Section 9(i) authoritatively" and "that function

belongs to the Supreme Court alone". In failing to give a decision on the proper interpretation

of Section 9(i) the Tribunal failed to answer a question that was crucial to the whole case.

Thus the Tribunal misdirected itself when it thought it was not empowered to give an

interpretation to Section 9 (i). It is surprising that having come to the conclusion that the view

taken of Section 9 (i) by the Judges was "not unreasonable", the Tribunal should yet find the

two Judges guilty of judicial misbehaviour for staying away from Kota Bharu and convening

the sitting in Kuala Lumpur. It is trite law that where there are two possible interpretations to

any provision of law, the one more favourable to the Respondent must be adopted.

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References

 https://definitions.uslegal.com/c/constitutional-crisis/

 https://en.wikipedia.org/wiki/Constitutional_crisis

 https://en.wikipedia.org/wiki/1988_Malaysian_constitutional_crisis

 http://www.themalaymailonline.com/malaysia/article/ex-judge-judiciary-never-fully-

recovered-from-1988-crisis#RgA7fmg7e5tCIBEC.97

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 Allan TRS (2006) Human rights and judicial review: a critique of due deference.

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 Anbalagan V (2013) Lawyers question criteria for promoting judges-Malaysia Today

 http://www.malaysia-today.net/lawyers-question-criteria-for-promoting-judges-2/.

 Bari ME, Bari ME, Naz S (2015) The establishment of the judicial appointments

commission in Malaysia to improve the constitutional method of appointing the

judges of the superior courts: a critical study. Common Law Bull 41:231-Google

Scholar

 Bin Abas S (1978) Federalism in Malaysia. In: Suffian M, Lee HP, Trindad FA (eds)

The constitution of Malaysia: its development, 1957–1977. Oxford University Press,

Kuala Lumpur-Google Scholar

 Bin Yeop A Sani H (1970) Our Constitution: A Study in Goodwill. The Law

Publishers (M) Sdn Bhd, Kuala Lumpur-Google Scholar

 http://www.commonlii.org/my/journals/JMCL/2005/1.html

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Lecturer’s Comments

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