| Revisiting the '88 judiciary crisis |
| Soon Li Tsin | Aug 12, 08 2:59pm |
| Two decades have passed since the 1988 judiciary crisis. But the effects still linger.
The crisis in fact went beyond that to include a besieged constitution and the erosion of the important principle governing democracies - the separation of powers. In a special report, Malaysiakini revisits the events that led to the day the judges were removed and along with them, the confidence in the independence of the judiciary. Since independence in 1957, the Malaysian judiciary was always held in high esteem throughout the Commonwealth for being reputably independent and impartial. The attacks on the judiciary began in 1986 when the Supreme Court decided in the 'Berthelsen case' that the immigration director-general was wrong to revoke the work permit of Asian Wall Street Journal correspondent John Bethelson because he was not given a chance to explain himself when the decision was made. Then prime minister Dr Mahathir Mohamad subsequently expressed concerns that the judiciary might not be interpreting the law as how Parliament and the Executive intended it to. He also moved amendments to the Police Act and the Printing Presses and Publications Act where scathing attacks were made against the judiciary. However, the most contentious amendment to the law was when Article 121(1) of the federal constitution - originally vesting the judicial power in the courts - was replaced by "jurisdiction and powers as may be conferred by or under federal law." This effectively removed the independence of the judiciary and subjected the courts to be subservient to federal law made by Parliament. The 'Umno 11' case Meanwhile in the courts, more cases which showed judges were capable of departing from government policies arose but none was more controversial than the 'Umno 11 case'. In the 1987 Umno party elections, Mahathir won by a very slim majority of 43 votes against Tengku Razaleigh Hamzah for the party presidency in 1987.
The plaintiffs appealed to the Supreme Court and Salleh had fixed the hearing on June 13, 1988 by a full bench of nine Supreme Court judges. It was apparent that the political survival of Umno and Mahathir was at stake and many people interpreted this as the reason for the judicial crisis that was to follow. In light of the judiciary losing its judicial powers and Mahathir’s outbursts against judges in Parliament, Salleh met with 20 other judges and wrote a letter to the King and the state rulers on March 26, 1988 expressing hope that "the baseless remarks (against the judiciary) will cease." On May 27, 1988, Salleh was summoned to Mahathir’s office and was told that the King - Sultan Iskandar Al-Haj of Johor - wished him to retire as Lord President because of the said letter. He also received his letter of suspension that was backdated to May 26. The following day, Salleh sent a letter of resignation but withdrew it and held a press conference. On June 9, 1988 the prime minister told the King that Salleh committed further misconduct for using the press to demand for a public hearing of the tribunal made up of high judicial officers. A tribunal to try Salleh was quickly set up and the dates to hear the ‘Umno 11' appeal was vacated upon his suspension at the instructions of acting Lord President Hamid Omar. Six tribunal members were appointed pursuant to the federal constitution by the King on June 11. They were acting Lord President and chairperson Abdul Hamid Omar, former Federal Court judge Abdul Aziz Mohamed Zain, Dewan Rakyat speaker Mohamed Zahir Ismail, Singapore Supreme Court judge TS Sinnathuray, Sri Lankan Chief Justice KAP Ranasinghe and Chief Justice of Borneo Lee Hun Hoe. The list of charges against Salleh include making critical statements against the government on several occasions, falsely claiming that the letter written to the King was on behalf of the judges and giving untrue information to the media that discredited the government. The tribunal commenced its hearing on June 29 and Salleh was absent throughout but his counsels led by Raja Aziz Addruse were present. Meanwhile, the tribunal was assisted by then attorney-general Abu Talib Othman who submitted there was enough evidence to recommend Salleh's removal from office.
Raja Aziz went to see Wan Suleiman Pawanteh, the most senior judge at that time about this matter and the latter convened a special sitting of the Supreme Court on Saturday, July 2 1988. Raja Aziz had argued that the tribunal members were unconstitutional and invalid and the five Supreme Court judges - Wan Suleiman, George Seah, Eusoffe Abdoolcader, Mohd Azmi Kamaruddin and Wan Hamzah Mohamed Salleh - unanimously granted the ex parte order. Salleh wanted to challenge the constitution of the tribunal members and needed the order to halt the tribunal proceedings from carrying on in Parliament. Several incidents including the then chief registrar Haidar Mohd Noor hiding the court seal and locking the court doors as well as the Parliament gates being locked led to criticisms that there was a ploy to prevent anything from disrupting the tribunal. The final blow Two days after the order was given, the five judges were suspended from their duties without a reason. With six Supreme Court judges suspended, it effectively suspended the Supreme Court which meant the challenge toward the legality of the tribunal could not be heard. The tribunal finished its report on July 7, 1988. It recommended that Salleh be removed from office on the grounds of his misbehaviour which indicated his inability to discharge his duties and function as Lord President properly. Based on this, Salleh was removed as Lord President on Aug 8, 1988 by the King based on the recommendation of the tribunal. Hamid became Lord President soon after. It is also interesting to note that the ‘Umno 11' appeal was heard the same day and dismissed the following day. Salleh’s dismissal led the Bar Council to pass a resolution in an extraordinary general meeting refusing to recognise Hamid as the new Lord President. Meanwhile, a second tribunal chaired by judge Edgar Joseph Jr - the 13th most senior judge out of 28 High Court judges - was set up to look into the conduct of the five suspended Supreme Court judges. The last blow to the judiciary was dealt by Edgar who found Wan Suleiman and George Seah guilty of misconduct and the King on Oct 4, 1988 ordered for their dismissal. The other three - Eusoffe, Azmi and Wan Hamzah were reinstated but the judiciary was never the same again. With the Supreme Court incapacitated and the amended constitution limiting the judiciary’s powers to only as much that Parliament might grant it - this period became known as the ‘blackest days’ in Malaysia’s history. |
The phrase 'judiciary crisis of 1988' is generally understood as relating to the suspension and sacking of Supreme Court judges including the then Lord President Salleh Abas. 
Eleven Umno members then challenged the validity of this election, which resulted in then High Court judge Harun Hashim declaring that Umno was an unlawful society. 
Salleh through his counsel Raja Aziz (right), who was the Bar Council president then, had applied for an interim stay against the tribunal but High Court judge Ajaib Singh refused it.| '88 crisis: The Bar strikes back |
| Soon Li Tsin | Aug 13, 08 12:08pm |
| It was troubling times for the Malaysian Bar back in 1988. On March 19 that year, lawyer Param Cumaraswamy in his final speech as Bar Council chairperson had set the mood of the turbulent time that was to dawn on the legal fraternity.
"Just on the eve of my retirement from the presidency, we saw one of the basic structures of our Constitution destroyed. "The balance between the Executive, the Legislative at the centre gains enormously in power at the expense of the judiciary," he said. The speech was made in light of a slew of attacks by then premier Dr Mahathir Mohamad against the judiciary and judges as well as when Article 121 of the Federal Constitution - which guarantees judicial independence - was amended. Mahathir taken to task In his hard-hitting speech, Param had levelled criticisms against Mahathir for being ignorant to what the judiciary stood for. "The prime minister’s vile and contemptuous allegations and accusations leveled at the judiciary and our judges left many shocked beyond belief.
"What he may not have realised is that in directing all those attacks on our judges, he has in fact, thrown his might not so much against His Majesty’s judges, but against the majesty of Law, Justice and the Constitution. "Far from clearly defining the duties and functions of each arm of the government, he has caused confusion. He had indeed defaced and defiled the Constitution," Param said. The former United Nations special rapporteur on the independence of judges and lawyers then gave assurance that the Bar would continue to campaign for judicial independence again. "Here let me assure our judges that the Bar pledges its complete and total support to them and will see that the judicial power remains with their courts. "These amendments will not go without a challenge. I am sure when the time comes, our judges will rise to the occasion and assert what is rightly their Constitutional power and restore the supremacy of our Constitution. "The Constitution does not belong to the prime minister or his government. It belongs to the people. It is the agreed charter of the nation. "A responsible government will organise itself to meet with the requirements of the Constitution and not amend the Constitution to suit the needs of the government," he said to hundreds of guests present. Param handed the reigns over to prominent lawyer Raja Aziz Addruse who subsequently became lead counsel for sacked Lord President Salleh Abas. Meeting with Hamid Param, who met with Malaysiakini recently, recollected the events that took place soon after his speech. He also related how he met the judge who succeeded Salleh as head of the judiciary, Hamid Omar then.
"I said to him, ‘We are concerned that if you are appointed and you chair the tribunal it will not look good for our judiciary because you are the next in line for the office of the Lord President and you are party to the letter (about) the meeting which agreed to Salleh writing a letter to the king". There will be a conflict of interest," he related. However, Param was shocked when Hamid admitted that he was worried about being sacked if he did not take up the position of chairperson in the tribunal. "He said something that was most shocking. He said, 'If I don’t accept the appointment, I will be sacked. If I’m sacked, will you or the Bar Council compensate the loss of my remuneration?' "I said, 'I am most surprised that such remarks are coming from you as chief justice. You and I know that the King is a constitutional monarch and he acts on advice. How can you say he will sack you?'
He noted how current Home Minister, Syed Hamid Albar, was present at the extraordinary general meeting held by the Bar then. "He was a member of the Bar in 1988 when we took the resolutions to boycott Hamid Omar (the one who replaced Salleh as Lord President) in an EGM with the highest turnout ever that time. "Syed Hamid was present. He had both his hands up, people noticed that. And I think he should be reminded of the great support he gave to the Malaysian Bar when we took that position against Mahathir’s attack on the judiciary and Hamid’s involvement in the tribunal," he said. |
"Today, I step down with a sense of sadness. Not because I am relinquishing the president’s post. But because of the deteriorating state of the fundamental liberties in this country. 
According to Param, the Bar had directed him to see Hamid after receiving information that the senior judge - who was next in line to be Lord President - would chair the controversial tribunal that decided Salleh's (photo) fate.
"He said, 'Oh you don’t know him. If you want, you go and tell him. I will buy you dinner'. That’s all he said," he related.more articles to follow..
2nd year junior.. read this and will help your study in Constitutional Law paper..
No comments:
Post a Comment