Judicial Independence and the 1988 Malaysian Constitutional Crisis

Professor Kevin Tan gave a lecture on the aspect of the judiciary in the Westminster model featuring separation of powers for public law today. A highlight of his lecture is the concept of judicial independence. In short,  in order for the courts to do their job, they must be protected in some ways so that they can decide in as fair a manner as possible, without fear or favour. Some of the principles involved are 1. Security of tenure of the judge, 2. Security of renumeration of the judge (that is the judge's pay is protected from being docked), and 3. security of abolishment of office whereby a separate parallel legal system is set up, making the office of the judge irrelevant.

There are however, mechanisms for removal of a judge from his office for such reasons as misconduct, incompetence, or the inability to carry out one's business (such as if the judge gets a stroke). The gray area lies on how to determine what it means by 'misconduct'. The loose word may be used for the personal interest of politicians to remove judges whom they do not like. This was illustrated in the 1998 Malaysian Constitutional Crisis, where then Malaysian Prime Minister Mahathir Muhammad moved to impeach the Lord President of the Supreme Court, Tun Salleh Abas from his seat.

A brief overview of the 1998 Malaysian Constitutional Crisis, the Malaysian Prime Minister was unhappy with the Supreme Court's decision to render his political party, UMNO, unlawful, on grounds that some branches of the party had not been registered with the Registrar of Societies as required by the Societies Act. There were previous instances of rulings by the supreme court against the government. While Mahathir managed to resolve the predicament by registering a new party and transferring all the assets over to the new party, he began his hostility towards the judiciary, making statements criticizing the judiciary. Things came to a head when the judges convened a meeting where they wrote a letter to the Yang di-Pertuan Agong (King of Malaysia) which stated that the judges' "hope that all those unfounded accusations will be stopped". It is suspected that the Sultan showed the letter to Mahathir, who was not pleased at the action of the judiciary.


Mahathir decided to commence proceedings to remove the Lord president of Malaysia. He appointed chairman of tribunal of 6, Tan Sri Hamid Omar, who was then Chief Justice of Malaya and next in line for Lord President. He was most likely to gain from the removal of Salleh Abas.

The account that followed as described by Professor Kevin Tan was certainly most dramatic. Salleh Abas and his colleagues sought an injunction against the proceedings on grounds of the unconstitutionality of the tribunal. While Salleh Abas was being impeached, his judiciary colleagues scrambled to draft up the injunction, and there was a moment of panic when they could not find the seal. And when they had found the seal, there was a rush towards the tribunal court which was commencing, but the doors were locked. It was a frenzy as supporters of Salleh Abas tried to make their way into the building by barging down the locked doors. But by the time they did so, the tribunal had made its decision to remove Salleh Abas on grounds of misconduct in sending the letter to the Sultan. Subsequently, many of those judges who had carried the operation were similarly impeached and removed.

I suppose a more stringent court mechanism process to ensure the constitutionality of the tribunal trying a judge would help in preserving judicial independence. Maybe it would truly be difficult to make a determination on terms like 'misconduct', which is termed in such a manner so as to give discretion to the tribunal. But in this case of the Malaysian Constitutional Crisis, the tribunal was obviously rigged. I was thinking that an injunction mechanism which would act retroactively to affect decision made by such a tribunal would help ensure the constitutionality of the tribunal going to try the judge. But I suppose the problem would then be, who would determine the constitutionality of the tribunal. Surely the judges being impeached for misconduct would not have a say in this. Politics does complicates many matters.