Professional Documents
Culture Documents
Constitutional Law 1 Individual Assignment
Constitutional Law 1 Individual Assignment
Constitutional Law 1
1
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
Biodata
2
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
Acknowledgement
A very good day to all readers of my Constitutional Law 1 assignment. All praises to God for
giving me the patience to overcome all the obstacles during the process of completion of this
assignment.
During the process of preparing my assignment, I had to request the help and guideline of
some respected individuals, who deserve my greatest gratitude. The completion of this
We would like to express our gratitude to Madam Prof. Madya Dr. Rusniah Bt Ahmad of
Universiti Utara Malaysia, my respected lecturer for the subject of Constitutional Law 1 for
with her. I would also like to expand my deepest gratitude to all those who have directly or
moral support had an everlasting effect that boosted me to complete this assignment.
I also thank the University Utara Malaysia for giving us the permission to use their
premises such as the library and student lounge for reference purposes of this
assignment.
Yours Sincerely,
3
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
Table of Contents
Issue 6
Impacts 11
Corrective Measures 16
Conclusion 25
References 27
Lecture’s Comments 28
4
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
provision in the constitution between the different branches of the ruling government is
involved. A constitutional crisis may threaten to break down the function of the ruling
government in whole.
the political constitution of a legal system appears unable to resolve. The crisis usually
interferes with the orderly operation of government. In general, a constitutional crisis results
when factions within a government ideologically disagree about the extent to which each
constitutional crisis results from internal conflict among the branches of government such as
executive, legislative and judiciary or, in a federal system, between the state and federal levels
of government.
In the course of government, the crisis results when one or more of the parties to a political
dispute willfully chooses to violate a law of the constitution. Moreover, if the crisis arises
because the constitution is legally ambiguous, the ultimate politico-legal resolution usually
Politically, a constitutional crisis can lead to administrative paralysis and eventual collapse of
the government, the loss of political legitimacy, or to civil war. A constitutional crisis is
distinct from a rebellion, which occurs when political factions outside a government challenge
civilians.
5
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
The 1988 Malaysian constitutional crisis (also known as the 1988 judicial crisis) was a series
of events that began with United Malays National Organisation (UMNO) party elections in
1987 and ended with the suspension and the eventual removal of the Lord President of the
Supreme Court, Tun Salleh Abas, from his seat. The Supreme Court in the years leading up to
1988 had been increasingly independent of the other branches of the government. Matters
then came to a head when Mahathir Mohamad, who believed in the supremacy of the
executive and legislative branches, became Prime Minister. Many saw his eventual sacking of
Salleh Abas and two other Supreme Court judges as the end of judicial independence in
In 1987, the United Malays National Organisation (UMNO) — a leading party in the
governing Barisan Nasional coalition — held elections for its numerous offices. For the first
time in twelve years, the incumbent President, Mahathir, was challenged. Tengku Razaleigh
Hamzah was the candidate of "Team B" for the Presidency, taking on Mahathir, whose camp
was labelled "Team A". There was an intense campaign to win the support of the roughly
1,500 delegates from party branches all over the country, who would elect the party officers.
Razaleigh's supporters expected him to win, and at the UMNO General Assembly shortly
after the votecounting was completed, rumours spread that Razaleigh had won. However, the
official results declared Mahathir the winner, with 761 votes to Razaleigh's 718. The Team A
candidate for Deputy President, Ghafar Baba, defeated Musa Hitam of Team B as well, and
6
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
Razaleigh's supporters were upset by the election, which they insisted had to have been
rigged. Their anger was exacerbated by Mahathir, who went on to purge all Team B members
from the Cabinet. As a result, 12 UMNO members filed a lawsuit in the High Court, seeking
a court order to void the election results and pave the way for a new election. The plaintiffs
alleged that 78 of the delegates had been selected by branches not registered with the
Registrar of Societies, and as a result were not eligible to vote. They also claimed that certain
documents related to the election had been "tampered with". Although Razaleigh was not
among the twelve plaintiffs, he was widely believed to be funding and co-ordinating the suit.
Later, one of the twelve withdrew from the case, but the remaining eleven continued to press
on. The High Court eventually gave the parties a two-week deadline to reach an out of court
settlement. An UMNO "Unity Panel" was formed to handle the negotiations and reach a
compromise. However, it soon became clear that the differences were intractable — Team B
would settle for no less than a new election, while Team A insisted that the suit be withdrawn
and a "face-saving" solution be reached which would allow some Team B members to remain
in the party. Eventually the eleven plaintiffs declared they would seek a final judgement from
the court.
This did not please Mahathir, who had clashed on several previous occasions with the
judiciary. In one instance, a government order revoking the work permits of two
foreign journalists critical of the government had been over-ruled by the Supreme Court.
Mahathir began making heated attacks on the judiciary, telling Time, "The judiciary says,
'Although you passed a law with a certain thing in mind, we think that your mind is wrong,
and we want to give our interpretation.' If we disagree, the Courts will say, 'We will interpret
your disagreement.' If we [the government and Parliament] go along, we are going to lose our
power of legislation." Mahathir also lashed out at "black sheep [judges] ... who want to be ...
fiercely independent," accusing them of playing to public opinion. Immediately after this
7
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
latter statement, the government reassigned several High Court judges to different divisions,
including Justice Harun Hashim who was then hearing the UMNO case. However, as the
latter case was already in progress, Harun's transfer would not take effect until the case
closed.
Harun was thus forced to make the final call on the case of the "UMNO 11". Although most
of the evidence they had presented was not contested, the UMNO defence argued that not all
possible remedies within UMNO had been exhausted. The plaintiffs, however, insisted that
the fact that at least 30 unregistered branches had sent delegates to the UMNO elections
should have been enough to nullify their results. In the end, Harun dismissed the suit, citing
Article 41 of the Societies Act 1966, which stated any society would automatically become
"unlawful" if any of its branches were not registered with the Registrar of Societies. As a
result, Harun declared he had no choice but to declare UMNO "an unlawful society", thereby
rendering "what happened in 1987" a nullity. In his decision, Harun blamed Parliament for
forcing his hand: "If the old law was in existence... [one could] apply the common
law principle, but here it seems the Parliament, to ensure strict compliance with the law, has
As soon as the decision was made public, Mahathir assured UMNO members that as the
decision was based on minor "technicalities", the party could easily be restored as a lawful
society. He also reminded the public that this did not threaten his status as Prime Minister, as
only a no-confidence vote could lawfully remove him from power. Within a fortnight of
Harun's decision, Mahathir announced the registration of UMNO Baru (New UMNO).
UMNO Baru's leadership was almost entirely composed of Team A members, who proceeded
to spend the next few months transferring the assets of the "old" UMNO to UMNO Baru. The
UMNO 11 pursued their case to the highest court in the land, the Supreme Court, still seeking
to hold new elections for the "old" UMNO and having its lawful status restored. However,
8
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
their appeal was rejected. Razaleigh then decided to form a new party focused on the "spirit of
1946" — the year UMNO had been founded. UMNO Baru in turn decided that the "Baru" was
superfluous, and officially dropped it from its name, in effect claiming to be the true successor
to UMNO instead of Razaleigh's party, which would eventually call itself Semangat 46 (Spirit
of 46).
The "UMNO 11" case was just one of a number which had irritated Mahathir and the
government. The case of the two journalists mentioned earlier had begun whenJohn
Berthelsen and Raphael Pura authored a series of articles on financial transactions of dubious
ethical and legal nature carried out by government officials. The Asian Wall Street
Journal which published them was promptly banned from the country, and Mahathir in his
capacity as Home Affairs Minister had Berthelsen's and Pura's work permits revoked.
However, the Supreme Court overturned the cancellation of Berthelsen's work permit because
he had not been given a chance to answer the charges of the government. As a result, the ban
on the Asian Wall Street Journal was also lifted. In a different case, the Supreme Court used
its power of judicial review, and nullified amendments to the Criminal Procedure Code which
gave the Attorney-General the power to initiate criminal proceedings in the High Court
without first going to a Magistrate's Court. After Operation Lalang in 1987, where the
government detained several political dissidents without trial under the Internal Security
Act (ISA), the High Court granted Karpal Singh's application to be released from detention
This last case did it for Mahathir. The following week, he submitted several constitutional
amendments to Parliament, divesting the courts of the "judicial power of the Federation" and
giving them only such judicial powers as Parliament might grant them. In justifying the
amendments, Mahathir stated: "...the courts have decided that in enforcing the law they are
bound by their interpretations and not by the reasons for which Parliament formulated these
9
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
laws ... lately the judiciary had seen fit to touch on matters which were previously regarded as
The Lord President of the Supreme Court, Tun Salleh Abas, was pressured by his fellow
judges to respond to the government's actions. Salleh decided to convene a meeting of all 20
judges from the Supreme and High Courts in the capital of Kuala Lumpur. At the meeting,
they agreed not to publicly reply to Mahathir's criticisms. Instead, they wrote a confidential
letter to the Yang di-Pertuan Agong (King) and the Malay rulers, expressing their grievances.
The proposed letter, which was unanimously approved, was written by Salleh Abas. The letter
stated the judges' disappointment "with the various comments and accusations made by the
Honourable Prime Minister against the Judiciary," but did not demand specific action be taken
— instead, it ended with an expression of "hope that all those unfounded accusations will be
stopped".
10
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
It is deliberately the truth that by now, after some 27 years since that dark episode, the
judiciary has probably recovered, but it still recovered just to a very limited extent amd has
“The negative public perception against the judiciary is still there,” Hishamudin said in an
interview with The Star newspaper referring to the issue. He said Salleh and the five Supreme
In 1988, Salleh was brought before a tribunal for misconduct, and the five Supreme Court
judges who granted him an interim order against the tribunal were either sacked or suspended.
“Indeed, as the late Tun Suffian (a former Lord President) had said many years ago in his
speech in honour of the late Tan Sri Wan Sulaiman (one of the two Supreme Court judges that
was unjustly dismissed in the assault of 1988) on March 10, 2000, ‘I had predicted that our
judiciary would take a whole generation to recover from the assault. Now more than 12 years
have lapsed. I doubt if the judiciary would recover in a generation from today’,” Hishamudin
added.
Hishamudin stressed that a judge is required by his oath of office to dispense justice in
accordance with the law and the constitution, and without fear or favour. “Judgeship is a
Malaysia’s judiciary has remained under a cloud since the 1988 constitutional crisis that saw
11
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
In 1988, Tun Salleh Abas was brought before a tribunal convened by the then Prime Minister
Dr Mahathir Mohammad on the grounds of misconduct. The tribunal was chaired by Tun
Hamid Omar. In response to the tribunal, Tun Salleh Abas filed a suit in the High Court in
Kuala Lumpur to challenge the constitutionality of the tribunal. While proceeding with the
suit, Tun Salleh Abas applied for an interim stay against the tribunal until 4 July 1988. The
Later however, five judges of the Supreme Court convened and granted Tun Salleh Abas an
interlocutory order against the tribunal. Upon receiving the order, Tun Salleh Abas' solicitors
proceed to the Parliament to present the chairman of the tribunal the interlocutory order. The
gate leading to the Parliament however was locked and Tun Salleh Abas' representative had to
call in the police to be guaranteed a passage into the Parliament. Eventually, the order was
Soon after, the five judges were suspended. The judges were Tan Sri Azmi Kamaruddin, Tan
Sri Eusoffe Abdoolcader, Tan Sri Wan Hamzah Mohamed Salleh, Tan Sri Wan Suleiman
Pawanteh and Datuk George Seah. This effectively suspended the Supreme Court. With the
Supreme Court suspended, the challenge toward the legality of the tribunal could not be
heard. The tribunal later removed Tun Salleh Abas from his office. Tan Sri Wan Sulaiman
and Datuk George Seah were also removed from office. The other three judges were later
reinstated.
The irregular dismissal of Tun Salleh Abas led the Bar Council of Malaysia refusing to
recognise the new Lord President. Around the same time, the Federal Constitution was
12
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
amended to divest the courts of the "judicial power of the Federation", granting them instead
Legacy
A major critic to Mahathir's actions include Malaysia's first Prime Minister, Tunku Abdul
Rahman. In a New York Times article, he was said to be "disgusted" at the actions. His views
however were criticised by the then Education Minister, Anwar Ibrahim, who claimed that the
Tunku was ″a grand old man who has done his bit.″
Mahathir's supporters insisted that it had liberated the Malaysian judiciary from a colonial
mindset. The sacking of several justices was justified by claims that these judges had been
abusing public funds for their personal expenses — such as the purchase of luxury furniture
from Italy. It was also claimed that the sackings had eliminated deadwood and improved
Mahathir Mohammed stepped down from the premiership in 2003, having chosen Abdullah
Ahmad Badawi to succeed him. In 2006, the relationship between the two became less than
warm as Mahathir started to criticise the latter's policies. During this period, many begin
calling for the judiciary or government to review the decision against the sacked judges.
Among the loudest advocates of the review was Tun Salleh Abas himself. The administration
dismissed such calls. Minister in the Prime Minister's Department Nazri Aziz, who was
then de facto Law Minister, said that he was not convinced of the need to review the case.
13
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
After the 2008 general election which saw heavy losses for BN, Abdullah reshuffled his
Cabinet. Within days of his appointment, new de facto Law Minister Zaid Ibrahim stated that
the government had to openly apologise for its handling of the crisis, calling it one of his three
main goals: "In the eyes of the world, the judicial crisis has weakened our judiciary
system." However, he rejected the idea of reviewing the decision: "I am not suggesting that
we re-open the case. I am saying that it’s clear to everyone, to the world, that serious
transgressions had been committed by the previous administration. And I believe that the
prime minister is big enough and man enough to say that we had done wrong to these people
and we are sorry." The Bar Council welcomed the proposal. Newly appointed Domestic Trade
and Consumer Affairs Minister Shahrir Abdul Samad also voiced support: "The Government
has apologised for so many other things to the people, such as the untimely destruction of
temples and other issues. So, why not an apology to a former Lord President?"
Zaid's proposal was criticised by former Bar president Param Cumaraswamy, who insisted
that Mahathir's administration, not Abdullah's, should assume responsibility: "Those who
perpetrated the transgressions are still alive and they must be called to account for their
conduct and seek forgiveness from the six valiant judges, their families and Malaysians
generally for the sacrilege committed to the temple of independent justice." He also proposed
that the government compensate the three sacked judges since "reinstatement of the three
dismissed is no longer possible." Karpal Singh, lawyer and opposition member of Parliament,
agreed: "Calling for the present administration to apologise is not a step in (the) right
direction. It is not the present administration that convened those tribunals." Instead, Karpal
suggested that a Royal Commission be set up. A few days later, The Malaysian Insider, a
news website, reported that the Cabinet was critical of the proposal, citing the potential for
legal liability if the government admitted wrongdoing. Zaid said that the proposal was still
14
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
The position of Lord President no longer exists, superseded by the rank of Chief Justice, while
Malaysia also replaced the Supreme Court with the Federal Court in 1994.
15
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
In April 2008, at a dinner with 600 members of the Bar and leaders from the
opposition Pakatan Rakyat coalition, Abdullah Ahmad Badawi acknowledged the impact of
the crisis:
To a large extent, the events of 1988 have fueled much of the disagreement on how to move
on.... I can say with a clear conscience that I abided and will continue to abide by the principle
of separation of powers, leaving the matter of justice to the judiciary. And yet the legacy of
1988 haunts us until today. ... For many, the events of 1988 were an upheaval of the nation's
judicial system. Rightly or wrongly, many disputed both the legality and morality of the
related proceedings. For me, personally, I feel it was a time of crisis from which the nation
He then announced that the government would make ex gratia goodwill payments to the
sacked and suspended judges: "I do not presume to equate your contribution, pain and loss
with mere currency but I hope you could accept this as a heartfelt and sincere gesture to mend
what had been." However, he refused to explicitly apologise for the events of 1988 or
otherwise review them, saying it would "prolong the sense of crisis". Abdullah also
announced his intention to set up a judicial appointments commission as part of his plans to
reform the judicial system. Two of the six judges involved in the 1988 crisis — Tun Salleh
Abas and Azmi Kamaruddin — and the families of the other four were present.
Zaid welcomed Abdullah's announcement in spite of the lack of a formal apology, saying:
"(One) can say sorry in other ways." George Seah's son told the press that although all his
16
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
father wanted was an apology, the family would not reject any goodwill payments. Tan Sri
Wan Suleiman Pawanteh's wife said: "Although I thank the prime minister, I feel less than
satisfied at his decision (not to make a straightforward apology). This is not the end of the
story for me. (Without an apology) I don't know, people don't know, that my husband was not
guilty. I want my husband's name to be cleared. I feel my husband was innocent. He was an
honest judge...Even so, I am thankful that our prime minister cares about us enough (to do this
much)." Tan Sri Eusoffe Abdoolcader's granddaughter regretted that acknowledgement had
been so late in coming: "I wish he was here. He's the main person affected by all this. It's a
different case from the others (Salleh and Wan Suleiman) because he was reinstated. It's been
12 years. It should have been solved earlier."[30] Tun Salleh Abas however welcomed
Abdullah's statement, saying: "I feel great. It was something I didn't expect. I suffered so
much humiliation ... so much so I ran away from the public and took solace in being a
farmer."
17
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
Separation of Powers
It is axiomatic that we should never forget the past in order to shape a better future. On 31
August 1957, in Merdeka Stadium at Kuala Lumpur, Tunku Abdul Rahman, the first Prime
Minister of the Federation of Malaya (later, Malaysia), proclaimed that the federation "shall
be forever a sovereign democratic and independent State founded upon the principle of liberty
and justice and ever seeking the welfare and happiness of its people and the maintenance of a
just peace among all nations". Two other features of that "Proclamation of Independence"
should be noted: first, the proclamation was effected "with the concurrence and approval of
Their Highnesses the Rulers of the Malay States"; secondly, he was proclaiming and declaring
Reflecting on that moment in 1957, it can be seen that Tunku Abdul Rahman was setting out a
grand vision of a vibrant democracy, with liberty and justice as its guiding principles. The
mandate for that proclamation was the will of the people, that is, a democracy based on
popular sovereignty. The fundamental importance of the Malay Rulers in the creation of a
18
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
There was a firm demarcation between, on the one hand, the judicial power, and, on the other,
the legislative and the executive powers. The framers of the Constitution were eminent jurists
[T]here is no liberty, if the judiciary power be not separated from the legislative and
executive. Were it joined with the legislative, the life and liberty of the subject would be
exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the
executive power, the judge might behave with violence and oppression.
The classic definition of "judicial power" was provided by Chief Justice Griffith of the High
Court of Australia in Huddart Parker v Moorehead and was expressed as follows: "the power
which every sovereign authority must of necessity have to decide controversies between its
subjects or between itself and its subjects, whether the rights relate to life, liberty or property."
This definition was endorsed by Zakaria Yatim J and referred to by Hashim Yeop A Sani SCJ
Judicial Independence
Constitutional government embodies the notion of the rule of law. There are certain
Joseph Raz, they include the following: (1) the independence of the judiciary must be
guaranteed; (2) the principles of natural justice must be observed if the law is to be able to
19
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
guide action; and (3) the courts should have the power to examine the actions of the other
branches of government in order to determine whether they conform with the law. Professor
The exercise of the judicial power in a country "founded upon the principles of liberty and
were inserted by the framers into the Constitution to maintain judicial independence. Removal
of a judge can only be effected following a recommendation by a tribunal that a judge should
be removed on the ground of a breach of the code of ethics or on the ground of inability, from
infirmity of body or mind or any other cause, to properly discharge the functions of the
judge's office. Subject to the removal procedures, judges hold office till the age of 66. Judicial
remuneration cannot be varied to the disadvantage of a judge during his or her term of office.
A constitutional prohibition is placed upon the discussion in either House of Parliament of the
conduct of a judge of the Federal Court, Court of Appeal or High Court, except on a
substantive motion of which notice has been given by not less than one-quarter of the total
number of members of that House. Thus, the Malaysian Constitution does contain the
safeguards of judicial tenure and remuneration which are normally found in most democratic
constitutions which accord significant protection to the judicial power and the constitutional
Why, it may be asked, is judicial independence so crucial for the attainment of constitutional
government? First of all, Art 4(1) of the Malaysian Constitution proclaims the Constitution to
be the "supreme law" of the Federation and that a law which is inconsistent with the
Constitution "shall, to the extent of the inconsistency, be void". It makes sense that there must
be a neutral or impartial umpire to ensure the supremacy of the Constitution. The judiciary
20
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
was envisaged by the framers of the Constitution to perform that role. It exercises the potent
power of judicial review: it can declare invalid legislation enacted by the Federal Parliament
or the legislature of a State on the ground that the Federal Parliament or State legislature lacks
power to make such laws. Because the Constitution embodies fundamental liberties, the
judiciary.
Considering that Malaysia achieved its independence less than 50 years ago, the period of
public disquiet over the judiciary by comparison is a fairly prolonged one. A number of
episodes have occurred which have generated concerns about the standing of the judiciary. A
former Lord President, Sultan Azlan Shah, was aggrieved to hear of various allegations made
Since Independence, the early judges had always cherished the notion of an independent
judiciary and had built the judiciary as a strong and independent organ of government. The
public had full confidence in the judiciary and accepted any decision then made without any
question. Unfortunately, the same does not appear to be the case in recent years.
Since the expression of this view by Sultan Azlan Shah, the upholding of the Anwar appeal
case by the Federal Court which led to the quashing of his convictions pertaining to sexual
misconduct has removed the international spotlight from the Malaysian judiciary and has
given it the opportunity to work towards a full restoration of public confidence in its integrity,
21
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
The travails facing the Malaysian judiciary are not peculiar to Malaysia. Around the world,
the judicial organ is coming under increasing scrutiny. There have been attempts, even in the
established democracies, to erode judicial independence, albeit not on the scale and of the
intensity manifested in the 1988 removal of Lord President Tun Salleh and two senior
Supreme Court justices. I will touch on some of these attempts to highlight the need for
constant vigilance in protecting the judiciary. It is also useful to consider some of the reforms
which have been proposed or are occurring in other countries which seek to strengthen the
In order for the judicial power to be exercised in a manner compatible with constitutional
guaranteed security of tenure. When the judicial power is exercised against the State there
should be no possibility of retaliation against the judge concerned. The citizen who is
challenging an abuse of power by the State must be assured that the adjudication is effected in
an impartial and independent manner. The public's confidence in the impartiality and
independence of the judges is secured by ensuring that judges cannot simply be removed
security of tenure, which is manifested in different forms. In general, some constitutions have
opted for a tribunal system for removing judges; others have opted for the parliamentary
removal process. Security of tenure is one way of ensuring a judge's fidelity to his or her oath
of office. In Malaysia, judges, upon their appointment, swear that they will faithfully
22
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
discharge their judicial duties, bear true faith and allegiance to Malaysia, and will preserve,
protect and defend the Constitution. Judges of the High Court of Australia take the following
oath:
I do swear that I will bear true allegiance to her Majesty . . . that I will well and truly serve her
in the office of Justice of the High Court of Australia and that I will do right to all manner of
Although the phraseology is different, the Malaysian judicial oath (or affirmation) of office
also connotes the promise to "do right to all manner of people according to law without fear
or favour, affection or ill-will". Upon taking the oath of office, the Malaysian judge, like all
judges of the common law world, has tapped into a proud judicial tradition of independence,
impartiality and integrity, which stretches back to the time when a courageous Coke CJ
responded to an angry and all powerful King James I of England with a famous line: "[T]he
King should not be under man, but under God and the Laws [sic]".
Judicial Appointments
The following observation made in the context of the New Zealand experience is equally apt
for Malaysia and Australia: "Judicial appointments do . . . remain within the gift of the
government of the day". In considering the government's prerogative to appoint judges to fill
judicial vacancies, Professor Enid Campbell and I in our book, The Australian Judiciary, said:
In appointing judges, a government owes a duty to the people . . . to ensure appointees of the
highest calibre. Judicial independence can also be subverted by the appointment of persons
who do not possess an outstanding level of professional ability, intellectual capacity and
23
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
experience and integrity, and who cannot shake off a sense of gratitude to the appointing
authority. It is not in the interests of the . . . people to have their judicial tribunals reduced to
timorous institutions.
In Australia, in relation to the appointment of High Court justices, there is only a statutory
requirement for the federal Attorney-General to consult the Attorneys-General of the States.
Consultation outside this statutory requirement depends on the person holding the office of
federal Attorney-General. A former Chief Justice of the High Court of Australia, Sir Harry
Gibbs, said:
There is no formal procedure for consultation between the executive and the judiciary or the
with the Chief Justice or with other members of the profession with regard to a prospective
However, a free press and a vocal legal profession can ensure that the power of judicial
appointment is not blatantly abused. In 1913, the federal Attorney-General (WM Hughes)
overseas: "Confidential and important to know your views Commonwealth versus State
24
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
Conclusion
Governments do not wish to be told, to be reminded that their political will does not always
prevail. They do not like to be told that the courts stand as the last line of defence between the
It has always been one of the pillars of freedom, one of the principles of liberty for which on
recent authority we are now fighting, that the judges are no respecters of persons and stand
between the subject and any attempted encroachments on his liberty by the executive, alert to
It is thus inevitable that there will be times when tensions will arise between the executive and
legislative arms of government and the judiciary. However, this should not obscure the
understanding that the undermining of public confidence in the judiciary is detrimental to the
attainment of Tunku Abdul Rahman's grand vision of a nation founded on liberty and justice.
A respected, independent and impartial judiciary diverts conflicts and riots in the streets to
resolution by logic and reason in the calm atmosphere of the courts. An independent judiciary
may be the least dangerous branch of government but there is an obligation on every citizen to
Federal Constitution only provides for the suspension and removal of a Judge of the Supreme
Court on the grounds of misbehaviour or of inability, from infirmity of body or mind or any
other reason, properly to discharge the functions of his office. It is my considered opinion that
the suspension of the five Supreme Court Judges, coupled with the suspension of the
incumbent LP, Tun Salleh Abas which amounted to 6 out of 10 members or 60 per cent of the
Supreme Court was tantamount to the suspension of the entire Supreme Court.
25
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
The Federal Constitution does not, directly or indirectly, contain any provision whatsoever for
the suspension of the Supreme Court. It must be remembered that the Supreme Court is the
third branch of the Government based on parliamentary democracy with its inherent rights.
Britain’s King George III tried to interfere with the Judiciary and was subsequently
dethroned.
It should have been manifestly obvious to the Tribunal that the Acting Lord President became
unable to act to schedule a sitting on the Tun Salleh case by reason of his being a Respondent
in that case. It follows that the power naturally devolved on Tan Sri Wan Suleiman under
Section 9 as the next senior most Supreme Court Judge, since the Chief Justice of Borneo was
also a Respondent in the Tun Salleh proceedings. The Tribunal took the stand that "it is not
belongs to the Supreme Court alone". In failing to give a decision on the proper interpretation
of Section 9(i) the Tribunal failed to answer a question that was crucial to the whole case.
Thus the Tribunal misdirected itself when it thought it was not empowered to give an
interpretation to Section 9 (i). It is surprising that having come to the conclusion that the view
taken of Section 9 (i) by the Judges was "not unreasonable", the Tribunal should yet find the
two Judges guilty of judicial misbehaviour for staying away from Kota Bharu and convening
the sitting in Kuala Lumpur. It is trite law that where there are two possible interpretations to
any provision of law, the one more favourable to the Respondent must be adopted.
26
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
References
https://definitions.uslegal.com/c/constitutional-crisis/
https://en.wikipedia.org/wiki/Constitutional_crisis
https://en.wikipedia.org/wiki/1988_Malaysian_constitutional_crisis
http://www.themalaymailonline.com/malaysia/article/ex-judge-judiciary-never-fully-
recovered-from-1988-crisis#RgA7fmg7e5tCIBEC.97
Ahmad SSS (1999) Malaysian legal system. Malayan Law Journal, Kuala Lumpur-
Google Scholar
Allan TRS (2006) Human rights and judicial review: a critique of due deference.
http://www.malaysia-today.net/lawyers-question-criteria-for-promoting-judges-2/.
Bari ME, Bari ME, Naz S (2015) The establishment of the judicial appointments
judges of the superior courts: a critical study. Common Law Bull 41:231-Google
Scholar
Bin Abas S (1978) Federalism in Malaysia. In: Suffian M, Lee HP, Trindad FA (eds)
Bin Yeop A Sani H (1970) Our Constitution: A Study in Goodwill. The Law
http://www.commonlii.org/my/journals/JMCL/2005/1.html
27
Morgan Phrasaddha Naidu Puspakaran
Constitutional Law 1
Lecturer’s Comments
28