Pn Mp S Call To Restore Judicial Independence Timely

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 In 1988, Malaysia faced a constitutional and institutional crisis that dramatically altered the status of judges as independent arbiters of the law.
This crisis was the culmination of escalating tensions between the executive, led by then-prime minister Dr Mahathir Mohamad, and the judiciary.
It marked the beginning of an era in which the courts were perceived to be under siege and subjected to overt political pressure.
Frustration with courts
ADSDuring the 1980s, several high-profile judicial decisions went against the government. These included constitutional challenges and judicial reviews that checked executive power and asserted the supremacy of the Constitution.
Mahathir began publicly accusing the judiciary of frustrating the will of Parliament, interpreting laws in ways inconsistent with legislative intent. He argued that judges, being unelected, had no democratic legitimacy to override the decisions of elected representatives.
In response, several judges firmly defended the principle of judicial independence. They pointed to Article 4(1) of the Federal Constitution, which proclaims:
“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”
Judges emphasised that it was their constitutional duty to interpret and uphold the Constitution, using accepted canons of statutory construction. All laws, they argued, must conform to the Constitution, not merely to the intentions of Parliament.
The amendment to Article 121(1)
In an unprecedented move to limit what he perceived as judicial activism, Mahathir’s government amended Article 121(1) of the Federal Constitution in June 1988, through the Constitution (Amendment) Act 1988 (Act A704).
Prior to the amendment, Article 121(1) stated:
“Subject to Clause (2) the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status…”
The amendment removed the express vesting of judicial power and replaced it with:
“There shall be two High Courts of co-ordinate jurisdiction and status… and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.”
This change was far-reaching. It suggested that judicial power no longer derived from the Constitution itself but from what Parliament chose to confer. This marked a fundamental shift in Malaysia’s constitutional structure and raised fears that the judiciary had been rendered subordinate to the legislature.
ADSCivil society and the Malaysian Bar Council immediately raised the alarm. The separation of powers - a core principle of constitutional governance - had been disrupted. The judiciary, once a co-equal branch of government, was now seen as vulnerable to parliamentary control.
Judicial crisis: Judges dismissal
The crisis deepened when Salleh Abas, then-lord president of the Supreme Court (the position now known as the chief justice of the Federal Court), wrote a letter to then-Yang di-Pertuan Agong on behalf of 20 judges, protesting negative remarks and accusations levelled at the judiciary by the prime minister and defending the constitutional position of the courts.
Former PM Dr Mahathir Mohamad and former lord president of the Supreme Court, Salleh Abbas (right)The Agong reportedly took offence at the tone of the letter. Acting on this complaint, Mahathir initiated proceedings to remove Salleh. He was suspended in May 1988 and dismissed in August 1988 after a tribunal chaired by the then-chief justice of Malaya, Abdul Hamid Omar found him guilty of misconduct.
Five Supreme Court judges - Wan Suleiman, George Seah, Azmi Kamaruddin, Eusoffe Abdoolcader, and Wan Hamzah - granted an order restraining the tribunal from submitting its findings to the king. In retaliation, all five were suspended. Two of them - Wan Suleiman and Seah - were later dismissed by a second tribunal.
This was the most serious assault on the judiciary in Malaysian history. The removal of top judges for defending constitutional independence sent a chilling message throughout the legal community. For years, there was the perception of the judiciary being chastened and subdued.
Slow reawakening: Basic structure doctrine
Over the past decade, the judiciary has begun a cautious but deliberate reassertion of its constitutional independence. In Sivarasa Rasiah v Badan Peguam Malaysia [2010] 3 MLJ 333, the Federal Court held that legislation could not violate the “basic structure” of the Constitution.
This doctrine - drawn from the landmark Indian case of Kesavananda Bharati v State of Kerala (1973) 4 SCC 225 - posits that certain features of a constitution are so fundamental that they cannot be amended or abrogated, even by Parliament.
Though Malaysian courts have never firmly invalidated the 1988 amendment to Article 121(1), they have begun interpreting it in ways that preserve judicial authority.
In Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561, the Federal Court held: “The judicial power of the court resides in the Judiciary and no other, as is explicit in Article 121(1) of the Constitution.”
The court also stated that Parliament does not have the power to amend the Constitution in a manner that undermines judicial powers, judicial independence, or the doctrine of separation of powers.
This principle was further affirmed in Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2018] 1 MLJ 545, where the Federal Court underscored the judiciary’s role in safeguarding fundamental liberties and upholding constitutional supremacy.
More recently, Chief Justice Tengku Maimun Tuan Mat, in her judgments and public statements, has reaffirmed that Article 4(1) enshrines constitutional supremacy. She has emphasised that Parliament cannot, even with a two-thirds majority, amend the Constitution in a way that dismantles its foundational structure - including the independence of the judiciary.
Chief Justice Tengku Maimun Tuan MatWhile dissenting voices remain, including those of former chief justice Abdul Hamid and former attorney-general Apandi Ali, and there are conflicting cases, the prevailing judicial trend nevertheless supports the application of the Basic Structure Doctrine.
The strong voices of former Federal Court judges Gopal Sri Ram, Richard Malanjum, and Zainun Ali reinforced this view. It is axiomatic that our foundational Constitution cannot be used to destroy itself or any of its core features.
A definitive ruling from the Federal Court would help solidify this principle. Better still, it should be codified through constitutional amendment.
Apology and compensation
In 2008, two decades after the 1988 crisis, the administration of Abdullah Ahmad Badawi, on the advice of then-law minister Zaid Ibrahim, made a gesture toward redressing the injustice suffered by Salleh and the other five judges. The government offered ex gratia payments to each of them or their families.
While no formal apology was issued, the payments were widely interpreted as a symbolic admission of executive wrongdoing. Yet for many, the gesture was insufficient to fully restore public confidence in the independence of the judiciary.
The way forward: Restoring the Constitution
Last week, on June 17, Perikatan Nasional MP Takiyuddin Hassan, a lawyer by training, called for the restoration of Article 121(1) to its pre-1988 wording. The proposal received renewed attention from lawyers, scholars, and civil society groups.
Restoring the original language of Article 121(1) would be a vital step. But Parliament should go further and expressly entrench the Basic Structure Doctrine through constitutional amendment.
This would place beyond amendment certain foundational features of the Constitution, including the independence of the judiciary, the separation of powers, and fundamental liberties.
Such an amendment would safeguard Malaysia’s democratic institutions and ensure that the events of 1988 are never repeated.
History teaches us that democratic institutions are fragile. Constitutional text alone cannot guarantee liberty. The courage of judges, the vigilance of lawyers, and the active participation of civil society are essential to defend our constitutional democracy from authoritarian overreach.
The events of 1988 traumatised the nation. They had a profound effect on the judiciary and on the public perception of the status and authority of judges. Too little has been written about how the five judges were affected by their suspension - and in the case of three, their dismissal.
These were ordinary men elevated to extraordinary responsibility. They served the law with integrity and dispensed justice without fear or favour. Their removal shocked the nation and revealed how vulnerable judicial independence can be.
Judges are the guardians of the Constitution. Their authority and status must be entrenched in law, not merely to protect their positions and independence, but also to safeguard the fundamental rights and freedoms of all Malaysians.
Takiyuddin’s call to restore judicial independence is timely. The government should take heed and proceed to enshrine judicial independence, not just in principle, but in the very architecture of the Constitution. - Mkini
DAVID DASS is a lawyer, Malaysiakini subscriber and commentator.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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