12:49pm Fri Oct 31st, 2003
The 22 years of Dr Mahathir Mohamad's reign as prime minister of
Malaysia come to an end today.
It would be apt to review the impact that this has had on the
Malaysian judiciary and on the doctrine of separation of powers,
which is essential for good government and to prevent an
over-concentration of power on any one of the three bodies of
government - the executive, the legislature and the judiciary.
obtaining independence from the British in 1957 until the
mid-1980s, the Malaysian judiciary built a reputation of being
independent and impartial and was held in high public esteem.
There was, it seems, no accusation of judicial improprieties,
corruption, bias and/or judicial misconduct during this period.
After Independence, one still had a right of appeal to the Privy
Council if one was aggrieved with the decision of the Federal
But as time passed fewer and fewer appeals were taken up to the
Privy Council and this can be taken only as an indication of the
public satisfaction and appreciation of the competency of the
Finally, it was decided towards the end of the 1970s that this
right of appeal to the Privy Council be discontinued. The
Federal Court in the early 1980s became the final Court of
Appeal in Malaysia, and was renamed the Supreme Court.
Mahathir became the prime minister - he was the first person
without a legal background to assume this position - he too
apparently did have a rather high regard for the Malaysian
At the advent of his premiership, in a speech made at the
opening ceremony of the Asean Law Association General Assembly
on 26 October 1982, he had this to say about the Malaysian
"I will always respect the judiciary. We do not expect the
courts to be pro- or anti-government, only pro the Constitution
and pro the law. The government always considers the
constitution and the law carefully before we do anything so we
expect the judiciary to be free to judge our alleged trespasses
without fear or favour, but in accordance with the law, in
accordance with the law of evidence and procedure justly and
fairly. We shall always respect their judgments..."
But just several years later, Mahathir's feelings about the
judiciary changed. This was intensified with the decision of the
Supreme Court in the case of Berthelsen v Director of
Immigration, Malaysia & Ors.
In brief, the director-general (DG) of immigration served a
notice cancelling the two-year employment pass of a staff
correspondent attached to the Kuala Lumpur office of the
Asian Wall Street Journal.
The Supreme Court came to a decision that since Berthelsen had
not been given the opportunity to make a representation
regarding the cancellation of his employment pass, the
requirement of natural justice had not been satisfied.
Accordingly, the court quashed the cancellation decision of the
Commenting on the role of the courts, Mahathir was reported in
the Nov 24, 1986 issue of Time magazine, as saying:
"The judiciary says, 'Although you passed a law with certain
thing in mind, we think that your mind is wrong , and we want to
give our interpretation’. If we disagree, the courts say, 'We
will interpret your disagreement'. If we go along, we are going
to lose our power of legislation. We know exactly what we want
to do, but once we do it, it is interpreted in a different way,
and we have no means to interpret it our way. If we find that a
court always throws us out on its own interpretation, if it
interprets contrary to why we made the law, then we will have to
find a way of producing a law that will have to be interpreted
according to our wish."
passage sparked off a contempt of court action instituted by
opposition politician Lim Kit Siang against the prime minister.
The High Court and thereafter the Supreme Court dismissed this
This was followed by the UEM case decision at the Supreme Court,
which was a victory to the government, but only by a majority
decision with two judges dissenting.
this time, there was a crisis in Umno following the contest for
the presidency in 1987. Mahathir, who was challenged by Tengku
Razaleigh Hamzah, (photo)
won by a very slim majority of 43 votes.
Eleven Umno members then challenged the validity of this
elections, which resulted in the High Court declaring Umno an
The plaintiffs appealed to the Supreme Court, and the appeal was
fixed to be heard on June 13, 1988 by a full bench of nine
Supreme Court Judges. What was at stake was the political
survival of Umno, the dominant party in Barisan Nasional (BN)
and, of course, Mahathir himself.
1988 judicial crisis
was also around this time that not being able to endure 'the
various comments and accusations made by the prime minister
against the judiciary not only outside but within Parliament,
then Lord President Salleh Abas (photo)
following a meeting with about 20 judges, including Tun Hamid
Omar, decided to sent a letter to the King and (state) Rulers on
March 26, 1988.
Following this letter, Mahathir reacted and this led to the
removal of Salleh Abas as Lord President on Aug 8, 1988 by the
King based on the recommendation of the tribunal chaired by then
Chief Justice Hamid Omar. It is good to note that the Umno
appeal was also heard on the same day and dismissed the
Subsequently, based on the recommendations of a second tribunal
chaired by Edgar Joseph Jr, which was set up to look into the
conduct of five suspended Supreme Court judges, the King on Oct
4, 1988 ordered the dismissal of Supreme Court judges Tan Sri
Wan Suleiman and Datuk George Seah.
In the criminal case of PP v Dato Yap Peng, the Supreme
Court came to the decision that section 418A was
unconstitutional on the ground that it violated Article 121(1)
of the Constitution, which then provided that the judicial power
of the federation was vested in the two high courts and such
inferior courts as might be provided by federal law.
The Supreme Court in that case had amongst others this to say:
"...judicial power to transfer cases from a subordinate court of
competent jurisdiction as presently provided by section 418A
cannot be conferred to any organ of government other than the
Judicial power broadly defined means "the power every sovereign
authority must of necessity have to decide controversies between
the subjects, of between itself and its subjects whether the
right relates to life, liberty or property", and this power
rightly should and must be vested in the third arm of the
But alas, the BN, which had more than a two-thirds majority in
Parliament and in the Senate was very easily able to amend
Article 121 of the Federal Constitution, removing the judicial
power vested in the courts.
Thereafter, the high courts have such jurisdiction and powers as
may be conferred by or under federal law. This means that the
court's jurisdiction can now be determined no longer by the
courts themselves, but by the legislature.
The amendment has the effect of allowing Parliament to enact
legislation limiting or prohibiting judicial review - and over
the past 22 years, there have, been many such amendments to laws
that prevent the court from reviewing ministerial and/or
Hamid Omar and Eusoff Chin
Hamid Omar, who chaired the first tribunal that recommended the
removal of Salleh Abas, then became Lord President on Nov 10,
It is interesting to note that Hamid was apparently at the
meeting of judges that decided on the sending of the letter to
the King and Rulers. He was followed by Eusoff Chin, who sat in
the second tribunal, being appointed as the head of the
During this period, there were many controversies:
infamous Ayer Molek case;
‘poison pen letter’ in early 1996 which contained 112
allegations comprising 39 charges of corruption, 21 of abuse
of power and 52 of misconduct, immoral and other
Chief Justice holidaying with a lawyer;
disclosure by a high court judge that he had received
direction (or was that advice?) about a case before him by the
Chief Justice; and
discussed cases of Lim Guan Eng and Anwar Ibrahim.
After the 1988 crisis, the judiciary rather than attempting to
regain its loss in stature and independence wrongly focused its
attacks on the Malaysian Bar and lawyers.
Bar, which had been steadfast in its struggle to restore public
confidence and independence of the judiciary throughout the
crisis and after, became the focus of attack during this period.
First, there was Bar Council secretary Manjeet Singh Dillon, who
was cited for contempt for an affidavit he affirmed on behalf of
the council. Subsequently, many lawyers were threatened with
contempt and/or cited for contempt in the courts.
Hope fades under Dzaiddin
Dzaiddin Abdullah was then appointed the head of the judiciary
and there was hope that under his leadership, the judiciary
would travel the road to regain the quality and stature it once
had in the period before 1988.
But those hopes were shattered bit by bit. One of the Practice
Directions issued towards the end of his term had the effect of
further eroding the right of access to a lawyer.
After retirement, almost immediately, he joined a law firm in
the first half of 2003 - this sparked public discussion and
debate as to whether this was proper and on consequence to the
public perception of the independence of the judiciary.
The Bar felt that there should be a ‘cooling-off period’ at the
very least, whilst some even felt that retired senior members of
the judiciary (especially heads) should not take up positions in
law firms and/or other companies.
The government's response was to look into amending the Judges
Code of Ethics 1994 to include possibly post-retirement conduct
of judges. Despite the public controversy, Dzaiddin has
continued as consultant in that law firm.
Malaysia has a new Chief Justice (formerly known as Lord
President) - Ahmad Fairuz Sheikh Abdul Halim - but it would be
premature to judge him one way or the other.
Article 125 of the Federal Constitution also gives the power to
the prime minister to initiate proceedings for the removal of
If the prime minister represents to the King that a judge ought
to be removed, "...then the (King) shall appoint a tribunal.."
which will make recommendation to remove or not to remove a
By the usage of the word "shall" it seems that the King has no
choice in the matter but to set up a tribunal.
Mahathir, by removing the head of the judiciary and two Supreme
Court judges, had sent a clear message to the judiciary that
could be simply stated as ‘...if you do not do things according
to my will, then you too will be removed’.
The removal of judges in 1988 clearly showed that it was not
just a possibility and/or a threat but could become a reality if
they did not behave as they should. The upheaval in 1988 has
left a deep-seated fear in many of our judges.
Over the years since, we have seen that only a few have been
able to surmount that fear and have decided judiciously without
fear and favour especially in cases involving the government
and/or personalities and companies with links to the government.
Prior to the 1988 judicial crisis, the chairperson of the
Malaysian Bar and other senior lawyers were consulted informally
by the Lord President on the suitability of candidates before he
made recommendation for appointment as judges. After the crisis,
this practice stopped.
In 1994 the Federal Constitution was amended to allow for the
appointment of Judicial Commissioners (sort of 'probationary
judges') who had all the powers of the judge but without the
security of tenure, which is a safeguard required to protect and
ensure the independence of the judiciary.
Judicial Commissioners are appointed on contract for an initial
term of two years, and if found 'satisfactory', the
recommendation is made by the Chief Justice to the prime
the July 2003 issue of the Malaysian Bar's newsletter,
Infoline, senior lawyer - and former UN Special Rapporteur
on the Independence of Judges and Lawyers - Param Cumaraswamy (photo)
said the recent "...promotions of Augustine Paul, Arifin Jaka
and Pajan Sungh Gill will be perceived by the public as a reward
for having 'delivered'".
Likewise, the earlier appointments of Hamid Omar and later
Eusoff Chin as heads of the judiciary were also possibly
perceived by the public as a reward.
An extraordinary general meeting of the Malaysian Bar was called
on Oct 4, 2003 to discuss this important aspect of judicial
appointments and other related matters, but could not be held
for lack of quorum.
In my opinion, Mahathir believed that the executive must lead
and all others should follow. He seems to have not grasped the
importance of the doctrine of separation of powers and/or the
need for a strong and independent judiciary.
Similarly as the head of Umno, Mahathir effectively also had
control of the legislature via the two-thirds majority held by
BN in Parliament.
During his time as prime minister, Mahathir has successfully
removed and/or weakened all possible checks and balances
including the King and the judiciary.
There has been an erosion in the powers of the judiciary,
particularly with the 1988 constitutional amendment, which
withdrew power previously expressly vested in the hands of the
From Independence until the 1988 judicial crisis, the stature,
quality and independence of the judiciary was highly acclaimed.
But since then, there has been an erosion, in reality or at
least from the perception of the person-in-street.
Public confidence in the judiciary has been on a decline to the
extent that many a person who may have had a legitimate cause of
action against the government and/or persons, bodies and
companies associated with certain personalities in the executive
have not gone to the courts to pursue their claims.
The prime minister, as provided for in the Federal Constitution
plays a very important role in the appointment of the Chief
Justice and in the appointment of the other judges.
Over his tenure, Mahathir has naturally had an effect on the
judiciary be it in terms of the membership and composition of
the judiciary. After all, all judges are appointed by the King
acting on the advice of the prime minister.
Other than in the appointment of the Chief Justice, the prime
minister has a duty to consult the Chief Justice and/or the
heads of the different courts depending on the court for which
the judge is appointed.
All the prime minister has to do is consult, but the King -
apparently from the words used - has no choice but to act on the
advice of the prime minister.
He chose the ‘suitable’ ones, but then some of these judges
proudly from time to time demonstrated rare courage through
their decisions - alas, they may now be considered ‘unsuitable’
in the eyes of the prime minister.
But then, the judiciary is also to be blamed. Judges ought to
uphold justice without fear or favour. They must not be pro- or
anti-government, only pro the Constitution and pro the law.
They must not be pro the big companies or pro the small man in
the street, only pro justice, pro human rights. They must not
bother about tomorrow, about possible repercussions from the
powerful, about their chances of elevation to higher courts and
They must never forget the oath that they have taken which
includes "...I will faithfully discharge my judicial duties in
that office, that I will bear true faith and allegiance to
Malaysia (not the prime minister, not the executive, not the
government), and will preserve, protect and defend its
The words of recommendation in the ‘Justice In Jeopardy:
Malaysia 2000' report prepared by an international mission led
by the International Bar Association must be heeded by the
It said: "We recommend that the judiciary does all in its power,
in the wider interest of justice, to counter the harshness of
repressive legislation and overbearing action on the part of the
"That is the role of the judiciary when faced with repression no
matter where it comes from...In the present situation and in
light of the experiences of 1988, this will require great
courage. Even still, we consider it essential if the reputation
of the judicial system in Malaysia is to be restored to what it
was and what it should be."
We citizens are also to be blamed for what has happened to our
judiciary for we have gone election after election to the ballot
box and returned the BN government with more than two-thirds
majority, thus enabling it to amend the Federal Constitution.
Over the Mahathir era, some of these amendments have contributed
to the state of the Malaysian judiciary today.
CHARLES HECTOR is a human rights activist and a lawyer in
ADAPTION FROM MALAYSIAKINI.COM
MELI, 29.1.2004, KHAMIS, 10.22 PM