1988 Judicial Crisis: No Apology from the Government

If one looks at our Federal Constitution, strictly speaking, there is no separation of power among the Legislature, the Executive and the Judiciary, the 3 branches that form the Government. Members of the Executive are chosen from the members of Legislature who have won the Parliamentary seats by simple majority. The Prime Minister and the Cabinet members perform the duties of the Legislature as well. With a party whip system strictly enforced where party line is to be followed by members of Legislature, majority of the Members of Parliament will listen and follow any decision made by the Executive. This is different from United States of America, where the doctrine of separation of power is more strictly observed.

Similarly, our Federal Constitution does not codify institutional independence to the judiciary. Article 122B provides that the appointment of judiciary members shall be made by the Yang di-Pertuan Agong, the Supreme Head of our country, who shall act on the advice of the Prime Minister, after consulting the Conference of Rulers (Majlis Raja-Raja). The Prime Minister does not need to consult the incumbent Chief Justice when advising on the candidate for the number one post in the Judiciary. Only for positions below the Chief Justice will the Prime Minister need to consult the Chief Justice and other senior judges in the judiciary. As such, more often than not, the Prime Minister, who is the head of the Executive and commands the confidence of the majority of the members of Legislature, holds the trunk card in appointing and promoting the judges. In short, our Federal Constitution provides concentration of power with the Prime Minister, instead of practising separation of power.

Article 122B of the Federal Constitution was amended and put in force on 24 June 1994, after the 1988 Judicial Crisis. But such amendment merely reflected the changes from a 2-tier to a 3-tier court system and changes of the title from “Lord President” to “Chief Justice”. In other words, the appointment and promotion of judges lies with the Prime Minister and existed before the 1988 Judicial Crisis. This is not surprising because our judiciary system is inherited from Britain who only recently made changes to the manner in which judges are appointed and promoted.

Two years before Salleh Abas was suspended and sacked as the then Lord President, his Lordship delivered a paper at the 8th Commonwealth Law Conference entitled “Independence of the Judiciary”. The then Lord President proudly declared that “never in the history of our independence has there been any rejection by the Prime Minister or the Conference of Rulers or the King of the candidature submitted by the Judiciary. In fact, the Prime Minister takes this request of appointment as a matter of course.” ([1987] Malaysia Law Journal, xi, pg xii). It was the tradition that the Executive would not interfere with the judges’ appointment and promotion. However, such a tradition was not observed after the 1988 Judicial Crisis. The recent evidence produced during the “Lingam Tape” enquiry revealed that the former Prime Minister Tun Dr. Mathathir Muhammad rejected the candidature submitted by former Chief Justice Tun Dzaiddin without assigning any reason.
Dr. Mahathir refuses to apologise over the 1988 Judicial Crisis. The present Government proposes to make ex gratia payment but made it absolutely clear that such measure is not equivalent to an apology. In fact, Dr. Mahathir went one step further by saying that there was no procedural flaw in setting up the tribunal to try the alleged misbehavior of Salleh Abas. In form, the tribunal was set up in accordance with the then Article 125(3) and (4) of the Federal Constitution, but in substance, the composition of the then tribunal was tainted with vested interest and biasness, which made it difficult to adjudicate fairly and independently. Dr. Mahathir certainly hangs on to the literal wording of the Constitutional provision, without taking into account the issue of fairness in the trial. To go back to the legal arguments would require the whole case be re-opened. Be that as it may, in the eyes of the public, the Executive has clearly taken advantage of the vulnerable institutional protection accorded to the branch of Judiciary and hence, subjected the Judiciary to political interference.

Many incidents that happened after the 1988 Judicial Crisis point to the direction that judicial independence is eroding swiftly, such as the New Zealand trip between the Chief Justice Tun Eussoff Chin and senior lawyer Sdr. Lingam, the Ayer Molek cases which involved fishing for judges, cases involving mega libel damages awarded to a tycoon, the poison letter written by a judge and finally, the “Lingam Tape” case which hints of judicial brokering and case fixing.

The Government is revisiting the 1988 Judicial Crisis but stopped short of making an apology. In law, an apology from the Government is different from reversing the 1988 tribunal decision. An apology connotes that the Government will abide with the tradition of not interfering with judicial appointments, and merely takes the Chief Justice’s request for such an appointment as a matter of course. The fullest restoration of the complete judiciary independence requires unwithered political will. Without an apology from the Executive over the 1988 Judicial Crisis, the Legislature may need to amend the Federal Constitution to the effect that the Judiciary is given an institutional independence protection and sheltered from any interference from the Executive.