Episode 26: Judicial Crisis 1988

1.0 The 1988 Judicial Crisis: The Battle for Judicial Independence 

The 1988 Judicial Crisis in Malaysia marked a critical moment in constitutional discourse. It revolved around concerns that government actions were compromising the judiciary’s independence, triggering debates on the basic structure of the constitution and the distribution of governmental powers. This episode elicited contrasting perspectives, with one side emphasizing the need to protect judicial independence and the other expressing fears of hindering legislative reforms. 

1.1 Judicial Independence in Malaysia 

Judex debet esse impartialis. The principle of judicial impartiality, championed by Chief Justice Tan Sri Md Raus Sharif, underscored the judiciary’s unwavering allegiance to the Federal Constitution. [1] It signifies that the judiciary must maintain independence, free from influence by the Executive or Parliament. This reinforced its critical role as the guardian of constitutional principles and ensured public trust in the system of justice. 

This underscores the doctrine of separation of powers that elucidated the allocation and division of government functions and authority among three distinct branches of government namely the legislative, executive and the judiciary. Article 4(1) of the Federal Constitution provides that any law passed which is inconsistent with the Constitution is void. Judges are under oath to preserve, protect and defend the Constitution. [2] They have an inherent power to employ the ‘first principles of administrative law’ to keep the government in check. [3] Prior to the 1988 amendments, Article 121(1) vested Malaysia’s judicial power in two High Courts namely the High Court of Malaya and the High Court of Sabah and Sarawak. [4] This inherent jurisdiction was a pivotal facet of their authority, enabling them to preside over cases even in the absence of statutory jurisdiction conferred by law. [5]

However, Article 121(1) was amended during the administration of Dr. Mahathir Mohamed by the Constitution (Amendment) Act 1988 (Act A704) on June 10, 1988, and at the height of a constitutional conflict between the judiciary and his administration. Prior to that, the words “judicial power” were expressly deleted. [6]

In consequence, the Malaysian judiciary suffered a series of devastating setbacks. The 1988 constitutional amendment had completely blanketed the judicial power to the Federal Courts causing a ‘judicial winter of the descent of the country’. [7]

1.2 The Sparks of the 1988 Crisis

1.2.1 UMNO 1987 

The genesis of the judiciary crisis can be attributed to the 1987 UMNO presidential election. During this juncture, Dr. Mahathir concurrently occupied the esteemed positions of Malaysia’s Prime Minister and President of UMNO. Despite garnering in excess of 100 branch nominations in his capacity as UMNO’s President, the slender margin of his victory by a mere 43 votes over Tengku Razaleigh, a Vice-President of UMNO, engendered widespread astonishment. This eventually laid the foundation for the subsequent tumultuous period within the judiciary. [8]

Following the controversial election, a civil suit was filed in the Kuala Lumpur High Court by eleven members of UMNO (UMNO 11) seeking a number of reliefs including a declaration that the whole election of the 1987 at the UMNO General Assembly was unconstitutional, illegal and therefore null and void and of no effect. UMNO 11 lost their lawsuit due to unregistered branches, resulting in UMNO being declared as an ‘unlawful society’. In response to this legal setback, UMNO underwent a significant transformation, leading to the establishment of UMNO Baru. This development marked a pivotal juncture in the political history of Malaysia, heralding a new era for the party and the broader political dynamics within the country. 

1.2.2 Mahathir’s Pivotal Constitutional Reforms in Parliament 

Numerous legal actions centered on the exercise of judicial review, notably the lawsuit initiated by the ‘UMNO 11’, stirred concerns within Dr. Mahathir and the government, ultimately catalyzing significant constitutional reforms within the parliamentary framework. Consequently, Dr. Mahathir presented multiple constitutional amendments to the Parliament aimed at reallocating the authority of the courts concerning the “judicial power of the Federation,” limiting it to only those powers explicitly delegated by Parliament. 

Dr. Mahathir expressed the view that the judiciary has established a precedent wherein they are obligated to uphold the law based on their own interpretations rather than the underlying intentions of the legislature in formulating these laws. Furthermore, he noted that there has been a recent trend within the judicial system where matters that were once considered to fall exclusively within the purview of the executive branch have come under the scrutiny of the judiciary. [9]

1.2.3 The removal of the Lord President of the Supreme Court 

Pressured by the proposed constitutional amendments, Lord President Tun Salleh Abas sent a confidential letter to the Yang di-Pertuan Agong and Malay rulers articulating his concerns and disappointment. [10] This led to a misconduct tribunal of Tun Salleh Abas convened by the then Prime Minister Dr. Mahathir Mohamad. 

In 1988, Tun Salleh Abas was unceremoniously dismissed amid the Malaysian constitutional crisis, widely believed to be driven by political motives. This abrupt removal triggered international outcry and raised serious concerns about the integrity of Malaysia’s judicial independence. This event served as a critical juncture, signaling the beginning of a troubling trend where judicial autonomy in Malaysia increasingly yielded to political pressure, significantly impacting the country’s legal and political landscape. [11]

2.0 Basic Structure Doctrine 

The basic structure doctrine played a crucial role in the judicial crisis of 1988. In essence, the Basic Structure Doctrine posits that specific elements within the Federal Constitution are integral components of the democratic governance framework and thus immune to modification without fundamentally altering the constitution itself. [12]

In the early 1970s, the Indian Supreme Court established the Basic Structure Doctrine through the decision of Kesavanda v The State of Kerala [1973] SCR Supp 1, affirming that specific constitutional fundamentals are permanent and immune to alteration or amendment, as emphasized in the case declaration that “The power to amend does not extend to changing the basic structure of the Constitution.” [13]

Early references to the Basic Structure Doctrine in Malaysia can be traced back to cases such as Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 where the Federal Court explicitly acknowledged the Basic Structure Doctrine. In the unanimous decision of  Sivarasa Rasiah case, [14] Gopal Sri Ram FCJ highlighted that the Federal Constitution is constructed with inherent features comprising its foundational framework. Consequently, unless explicitly sanctioned by the Constitution itself, any statute conflicting with basic structure may be subject as unconstitutional. Furthermore, in the Semenyih Jaya case, [15] the unconstitutionality of Section 40D of the Land Acquisition Act 1960, [16] which delegated the authority to assess land values to two professional land valuers rather than a judge, was established due to its infringement upon Article 121(1) of the Federal Constitution. 

Despite the endorsement of Basic Structure Doctrine in past cases, the recent legal challenge by Maria Chin Abdullah [17] has changed the entire perspective and become the turning point of the Malaysian constitution. The Maria Chin case reviewed the fundamental aspects of basic structure doctrine as a doctrine that was not recognised by the majority decision and hence declared to be unnecessary and inconsistent to Article 4(1) of the Federal Constitution.

The conflict arises from the tension between the government’s exercise of legislative power, as represented by the Immigration Act, and the underlying principles of the Federal Constitution. The basic structure doctrine, if recognized in Malaysia, would imply that certain fundamental rights and liberties enshrined in the Constitution are beyond the reach of legislative changes. Therefore, if Maria Chin’s case raises questions about the violation of these rights by legislation, it becomes a matter of constitutional significance, and the court may need to assess whether the provisions in question violate the basic structure of the Constitution.  

It is worthwhile to note that The Judicial Crisis 1988 serves as a backdrop for contrasting viewpoints on the basic structure doctrine. Advocates argue it safeguards judicial independence, while critics suggest it may curtail legislative reform efforts. The historical episode continues to shape the ongoing debate over the applicability and necessity of the basic structure doctrine in constitutional jurisprudence. 

3.0 The significance of the judicial crisis today

Three and a half decades have passed since the judicial crisis, leaving a lasting scar on our Judiciary. While we have made progress in regaining our independence, the damage to our reputation endures, casting a shadow over our integrity in the eyes of the public. 

In preserving judicial independence, some laws and Federal Constitutions have several safeguards regarding this area. Article 123 has laid out the proper qualifications of superior courts judges where they must have 10 years of experience being members of the Judicial and Legal Service and of the Bar. [18] Furthermore, the appointment of the judges must undergo a consultative appointment process by Yang Di-Pertuan Agong (YDPA), acting on the advice of the Prime Minister (PM) and Conference of Rulers. [19]

Moreover, the superior court judges enjoy tenure security, shielded from dismissal except in extraordinary circumstances. They could not be removed by the Parliament, PM or YDPA on their own initiative. [20] However, as what happened in 1988, this Article has failed to protect Tun Salleh Abbas from getting removed from his office. Regrettably, a lot of these safeguards are unavailable to subordinate courts. It is clear that the existence of these safeguards is to protect the independence of the judiciary from harm, yet their efficacy remains a subject of debate. [21]

It seems that the Judiciary is slowly regaining judicial independence but there are some laws that are delaying it from happening notably, Article 149 and 150. Both of these Articles are granting the legislature and the executive considerable powers in times of emergency. Article 149 empowers Parliament to enact laws, provided they do not contravene fundamental human rights safeguarded in Articles 5, 9, 10, and 13. [22] Meanwhile, Article 150 allows the whole Constitution except six provisions in Article 150(6A) in times of emergency. This effectively hinders judicial review, compounded by Article 150(8), which explicitly precludes such review in matters pertaining to emergencies. [23]

The 1988 Judicial Crisis is an unforgettable history to the current Judiciary system as we can still feel the debris of the crisis until now. This should have served us a lesson that the Judiciary should be free from external influences and its independence must be preserved to the core so that history will not repeat itself. During her tribute to the late Tun Salleh Abbas, Chief Justice Tun Tengku Maimun Tuan Mat underscored the imperative for judges to unwaveringly uphold the Federal Constitution and steadfastly defend the rule of law, even in the face of threats to judicial independence. [24]

REFERENCES

[1] Bar Council Malaysia. (2017, May 8). Judicial dependence is sacrosanct. Malaysian Bar. Retrieved from <https://www.malaysianbar.org.my/article/news/legal-and-general-news/members-opinions/judicial-independence-is-sacrosanct>. Site accessed on 14 September 2023. 

[2] Federal Constitution (Malaysia). Schedule Six. 

[3] Lim Lian Geok v Minister [1964] 1 MLJ 158.

[4] Federal Constitution (Malaysia) art 121(1).

[5] R. Rama Chandran v. The Industrial Court of Malaysia [1997] 1 MLJ 145.

[6] See footnote 1 above. 

[7] Shad Saleem Faruqi. (2018). Thirtieth Anniversary of the 1988 Judicial Crisis: Lessons About The Importance Of Judicial Independence And Impartiality. Journal of Malaysian and Comparative Law, 45(2). Retrieved from <https://law.um.edu.my>. Site accessed on 14 September 2023. 

[8]Seah, G. (2005, Mar 13). Crisis in the Judiciary. Malaysian Bar. Retrieved from <https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/crisis-in-the-judiciary>. Site accessed on 15 September 2023.  

[9] Neo, J.L., Tay, W.T.Z.(2018, Nov 14). Restricting the Independence and the Integrity of Malaysia's Judiciary: Proposal for Reform and Challenges Ahead. Constitutionnet. Retrieved from <https://constitutionnet.org/news/restoring-independence-and-integrity-malaysias-judiciary-proposals-reform-and-challenges-ahead>. Site accessed on 14 September 2023. 

[10] [2005] JMCL 1

[11] Jamari Mohtar. (2021, Jan 18). The Jihad of Tun Salleh Abas: Protecting judiciary’s independence. Focus Malaysia. Retrieved from <https://focusmalaysia.my/the-best-jihad-of-tun-salleh-abas-fighting-for-the-judiciarys-independence/>. Site accessed on 15 September 2023.  

[12]  [2021] 3 MLJ clxxvii

[13]  Kesavanda v The State of Kerala [1973] SCR Supp 1, at p.4 

[14]  [2010] 2 MLJ 333

[15]  [2017] 3 MLJ 561

 [16] Lembaga Pembangunan Labuan Act 1992  (Act 480) (Malaysia).

[17] [2021] 1 MLJ 750

[18]  Federal Constitution (Malaysia), art.123

[19]  Federal Constitution (Malaysia), art. 122B 

[20]  Federal Constitution (Malaysia), art. 125 

[21] See footnote 7 above.

[22] Federal Constitution (Malaysia), art. 149

[23] Federal Constitution (Malaysia), art. 150

[24] Bernama. (2022, September 14). CJ: Judges must be faithful to Federal Constitution, resolute in upholding rule of law. Astroawani.com. <https://www.astroawani.com/berita-malaysia/cj-judges-must-be-faithful-federal-constitution-resolute-upholding-rule-law-381064> Site accessed on 20 September 2023.