1988 Malaysian constitutional crisis
Encyclopedia
United Malays National Organisation
The United Malays National Organisation, is Malaysia's largest political party; a founding member of the National Front coalition, which has played a dominant role in Malaysian politics since independence....
(UMNO) general election in 1987 and ended with the suspension and the eventual removal of the Lord President of the Supreme Court
Lord President of the Federal Court
The title of Lord President of the Supreme Court was formerly the title of the head of the judiciary in Malaysia, until 1994 when the office was renamed "Chief Justice of the Federal Court"....
, Tun
Malay titles
The Malay language has a complex system of titles and honorifics, which are still used extensively in Malaysia and Brunei. Singapore, whose Malay royalty was abolished by the British colonial government in 1891, has adopted civic titles for its leaders....
Salleh Abas
Salleh Abas
Tun Haji Mohamed Salleh bin Abas is a former Lord President of the Federal Court of Malaysia. He was dismissed from his post during the 1988 Malaysian constitutional crisis...
, from his seat. The Supreme Court
Courts of Malaysia
The Judiciary of Malaysia is largely centralized despite Malaysia's federal constitution, heavily influenced by the British Common Law and to a lesser extent Islamic law, and is mostly independent from political interference.-History:...
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
Mahathir bin Mohamad
Tun Dr. Mahathir bin Mohamad . is a Malaysian politician who was the fourth Prime Minister of Malaysia. He held the post for 22 years from 1981 to 2003, making him Malaysia's longest serving Prime Minister. His political career spanned almost 40 years.Born and raised in Alor Setar, Kedah, Mahathir...
, who believed in the supremacy of the executive and legislative branches, became Prime Minister
Prime Minister of Malaysia
The Prime Minister of Malaysia is the indirectly elected head of government of Malaysia. He is officially appointed by the Yang di-Pertuan Agong, the head of state, who in HM's judgment is likely to command the confidence of the majority of the members of that House of Representatives , the...
. 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.
Since 1988, there have been regular calls for an official review of the government's actions throughout the crisis. In 2008, newly appointed de facto Law Minister Zaid Ibrahim
Zaid Ibrahim
Dato' Mohd Zaid Ibrahim is a prominent Malaysian lawyer turned politician and is a former Minister in the Prime Minister's Department in charge of legal affairs and judicial reform...
said the government had to make an open apology to the sacked judges, calling the government's actions during the crisis "inappropriate". Not long after, Prime Minister Abdullah Ahmad Badawi
Abdullah Ahmad Badawi
Tun Abdullah bin Haji Ahmad Badawi is a Malaysian politician who served as Prime Minister from 2003 to 2009. He was also the President of the United Malays National Organisation , the largest political party in Malaysia, and led the governing Barisan Nasional parliamentary coalition...
called the crisis one which the nation had never recovered from, and announced ex gratia
Ex gratia
Ex gratia is Latin for "by favour", and is most often used in a legal context. When something has been done ex gratia, it has been done voluntarily, out of kindness or grace...
compensation for the sacked and suspended judges.
Judicial intervention in a political dispute
In 1987, the United Malays National OrganisationUnited Malays National Organisation
The United Malays National Organisation, is Malaysia's largest political party; a founding member of the National Front coalition, which has played a dominant role in Malaysian politics since independence....
(UMNO) — a leading party in the governing Barisan Nasional
Barisan Nasional
Barisan Nasional is a major political coalition in Malaysia, formed in 1973 as the successor to the Alliance . Along with its predecessor, it has been Malaysia's federal ruling political force since independence...
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
Ghafar Baba
Tun Ghafar Baba was a Malaysian politician from Melaka and a former Deputy Prime Minister. He was born on February 18, 1925 in Kuala Pilah, Negeri Sembilan, the son of an impoverished villager...
, defeated Musa Hitam
Musa Hitam
Tun Musa bin Hitam , is a Malaysian politician and a former Deputy Prime Minister of Malaysia, serving under Mahathir bin Mohamad. He was born in Johor Bahru, Johor in 1934...
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
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
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 journalist
Journalist
A journalist collects and distributes news and other information. A journalist's work is referred to as journalism.A reporter is a type of journalist who researchs, writes, and reports on information to be presented in mass media, including print media , electronic media , and digital media A...
s critical of the government had been overruled by the Supreme Court. Mahathir began making heated attacks on the judiciary, telling Time
Time (magazine)
Time is an American news magazine. A European edition is published from London. Time Europe covers the Middle East, Africa and, since 2003, Latin America. An Asian edition is based in Hong Kong...
, "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
Parliament of Malaysia
The Parliament of Malaysia is the national legislature of Malaysia, based on the Westminster system. The bicameral parliament consists of the House of Representatives and the Senate. The King as the Head of State is the third component of 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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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
Semangat 46
Parti Melayu Semangat 46 or Spirit of 46 Malay Party is a now defunct Malaysian political party. The party was formed in 1988 under the leadership of Tengku Razaleigh Hamzah, who felt capable of mounting a realistic challenge to the dominance of then UMNO under Mahathir's leadership and its...
(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 reviewJudicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
, 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
Internal Security Act (Malaysia)
The Internal Security Act 1960 is a preventive detention law in force in Malaysia. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances...
(ISA), the High Court granted Karpal Singh
Karpal Singh
Karpal Singh is a Malaysian lawyer and politician, who has been the Member of Parliament for the neighbourhood of Bukit Gelugor in the state of Penang since 2004...
'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 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
Salleh Abas
Tun Haji Mohamed Salleh bin Abas is a former Lord President of the Federal Court of Malaysia. He was dismissed from his post during the 1988 Malaysian constitutional crisis...
, 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
Kuala Lumpur
Kuala Lumpur is the capital and the second largest city in Malaysia by population. The city proper, making up an area of , has a population of 1.4 million as of 2010. Greater Kuala Lumpur, also known as the Klang Valley, is an urban agglomeration of 7.2 million...
. 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
Yang di-Pertuan Agong
The Yang di-Pertuan Agong is the head of state of Malaysia. The office was established in 1957 when the Federation of Malaya gained independence....
(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 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 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 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
Parliament of Malaysia
The Parliament of Malaysia is the national legislature of Malaysia, based on the Westminster system. The bicameral parliament consists of the House of Representatives and the Senate. The King as the Head of State is the third component of 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 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 RahmanTunku Abdul Rahman
Tunku Abdul Rahman Putra Al-Haj ibni Almarhum Sultan Abdul Hamid Halim Shah, AC, CH was Chief Minister of the Federation of Malaya from 1955, and the country's first Prime Minister from independence in 1957. He remained as the Prime Minister after Sabah, Sarawak, and Singapore joined the...
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
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
. It was also claimed that the sackings had eliminated deadwood and improved efficiency in the courts, as evinced by a reduction in their backlog.
Many believe that the judicial crisis ultimately subordinated the judiciary to the executive.
Call to revisit the case
Mahathir Mohammed stepped down from the premiership in 2003, having chosen Abdullah Ahmad BadawiAbdullah Ahmad Badawi
Tun Abdullah bin Haji Ahmad Badawi is a Malaysian politician who served as Prime Minister from 2003 to 2009. He was also the President of the United Malays National Organisation , the largest political party in Malaysia, and led the governing Barisan Nasional parliamentary coalition...
to succeed him. In 2006, the relationship between the two became less than warm as Mahathir started to criticize 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.
After the 2008 general election
Malaysian general election, 2008
The 12th Malaysian general election was held on March 8, 2008, in accordance with Malaysian laws for national elections, which states that a general election must be held no later than five years subsequent to the previous elections; the previous general election was held in 2004...
which saw heavy losses for BN, Abdullah reshuffled his Cabinet. Within days of his appointment, new de facto Law Minister Zaid Ibrahim
Zaid Ibrahim
Dato' Mohd Zaid Ibrahim is a prominent Malaysian lawyer turned politician and is a former Minister in the Prime Minister's Department in charge of legal affairs and judicial reform...
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
Shahrir Abdul Samad
Datuk Seri Utama Shahrir Abdul Samad is the former Malaysian Domestic Trade and Consumer Affairs Minister, a member of Parliament, and the former chairman of the Barisan Nasional Backbenchers Club . He is a member of the United Malays National Organisation, the largest political party in the...
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
Param Cumaraswamy
Dato' Param Cumaraswamy is a high-profile Malaysian lawyer from Kuala Lumpur. Chair of the Malaysian Bar Council from 1986 to 1988 and United Nations Special Rapporteur on the Independence of Judges and Lawyers by the UN Commission on Human Rights from 1994 to 2003, he won the 2005 Gruber Prize for...
, 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
Karpal Singh
Karpal Singh is a Malaysian lawyer and politician, who has been the Member of Parliament for the neighbourhood of Bukit Gelugor in the state of Penang since 2004...
, 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
The Malaysian Insider
The Malaysian Insider is a bilingual news site popular in Malaysia. It has been consistently ranked as one of the top 100 most popular websites in the country with a strong following in Singapore. Alexa ranked The Insider as the 57th most popular website in Malaysia in June 2009...
, 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."
In April 2008, at a dinner with 600 members of the Bar and leaders from the opposition Pakatan Rakyat
Pakatan Rakyat
Pakatan Rakyat or PR is an informal Malaysian political coalition. It currently controls four state governments while in opposition to the ruling Barisan Nasional at the federal level....
coalition, Abdullah acknowledged the impact of the crisis:
He then announced that the government would make ex gratia
Ex gratia
Ex gratia is Latin for "by favour", and is most often used in a legal context. When something has been done ex gratia, it has been done voluntarily, out of kindness or grace...
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 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." 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."