Executive Dominance

Assault on the Judiciary

A series of events led to the suspension on 31 May 1988 of the Lord President, Tun Mohammed Salleh Abbas, head of the Malaysian Judiciary. Earlier, the Prime Minister had expressed hostility towards the Judiciary in an interview in Time Magazine. Dr. Mahathir complained that the courts were vilifying the political decisions and acts of the government by not interpreting the law "according to our wish." The Supreme Court had in 1987 ruled against the government over a complicated case involving Asian Wall Street Journal writer J.B. Berthelsen. Opposition Leader Lim Kit Siang sued Mahathir for contempt of court over the Time interview and, while the Kuala Lumpur High Court judge did not find the Prime Minister guilty, he nonetheless advised Mahathir to make government legislation more watertight if he felt the courts were overturning them. Some media exchanges were parried between the Prime Minister and the Lord President over the principle of judicial independence.

The upshot was the Lord President's suspension in May 1988. A Commonwealth Tribunal of five judges, including Tun Mohamed Salleh's replacement, Acting Lord President Tun Hamid Omar, was hastily set up in June to investigate the Lord President's "misdemeanour" amidst protest by the Bar Council, which called for the resignation of Tun Hamid Omar for not disqualifying himself from the Commonwealth Tribunal and for other non-professional acts. Tun Mohamed Salleh had an audience with the King in June on the advice of other rulers but was rebuffed by His Majesty in the presence of the Chief Secretary to the government and the Attorney General.

Another drama occurred in July when the King on the advice of Tun Hamid Omar suspended five Supreme Court judges. The five had sat to hear an injunction brought up by Tun Mohamed Salleh against proceedings of the Tribunal. The report of the Commonwealth Tribunal completed in August found Tun Mohamed Salleh guilty of "misbehavior." The King dismissed him as Lord President. A second Tribunal comprising Malaysian judges was set up to investigate the actions of the five suspend judges and found two of the five guilty of misdemeanor. The King dismissed the two and reinstated the three.

Protests come from far and wide over these actions, including from the International Commission of Jurists meeting in Caracas and from the Lawasia Association for Asia and the Pacific. The Malaysian Bar Council decided to institute contempt proceedings against the new Lord President Tun Hamid Omar in March 1989. In a counter-suit in May, the Attorney General filed an application to commit the Bar Council Secretary Manjeet Singh Dhillon to prison for contempt. The Bar Council lost but the government won its case against the Council's secretary, who was fined but not jailed for the offence in 1991.

ARENA, 1992: 31

By the middle of the 1980s, it became increasingly evident that the executive branch of government under Dr. Mahathir Mohamad had begun to arrogate an enormous amount of legal and constitutional power at the expense of the traditional Rulers and the Judiciary.

A major constitutional crisis broke out in 1983 when the Mahathir government sought to amend the constitution to clip the assumed power of the King (Yang di-Pertuan Agung) to confer royal assent to parliamentary bills before they became laws. When the Conference of Rulers objected to the government's bill of 1983 which required compulsory granting of royal assent by a period of 15 days, the Prime Minister went on a country-wide campaign to drum up support for the government's position.

In the event, a further amendment to the constitution in 1984 made it compulsory for the King to assent to any bill within 30 days. In the case when the bill is not a money bill, the King can return the bill to the house for further debate within the period of 30 days. However, where he does neither of these things, the bill shall become law in any case. (Lee, 1995: 32). The fuss that Mahathir created over the matter was based on the fear that a recalcitrant king may obstruct government policy. In retrospect it proved an important weapon to have the rulers neutralised when the Prime Minister went on the attack against another institution of government -- the Judiciary (See box).

Thus, four years later when the Judiciary came under siege, the Prime Minister had a very compliant set of rulers on his side. This set of events led to the removal of the Lord President, the highest ranking official of the judicial branch, the suspension of five Supreme Court judges and the eventual sacking of two of them. The events that brought this about were a complex intertwining of politics and litigation, which led to the accusation that the judges, including the Lord President had become embroiled in politics (See box).

In truth it was the chagrin and hubris of a Prime Minister who was unable to accept legal decisions working against his party's political and economic interests that led to the bizarre developments. Various interpretations of these events have been written but the main outcome, all will agree, has been the further strengthening of the hand of the executive vis-à-vis the Judiciary to the extent that judicial independence has become a chimera in the Mahathir period (Lee, 1995, Lawyers Committee for Human Rights, 1990). This together with the emasculation of the role of the traditional Rulers has made executive dominance in government a stable and underlying feature of the state.