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Call on Ministers, MPs and civil society to speak up in support of the Bar Council President proposal for re-examination of the 1988 judicial crisis to restore the honour of the victimized judges
I would in particular call on three Ministers with legal background to spearhead such a campaign in the Cabinet – Datuk Seri Nazri Aziz, the Minister in the Prime Minister’s Department, who is currently in charge of the law portfolio; and Datuk Seri Radzi Sheik Ahmad and Datuk Dr. Rais Yatim, his two predecessors on the law portfolio.
Rais, in his study on the 1988 judicial crisis in the book “Freedom under Executive Power in Malaysia” rightly said that the decision to remove the Lord President, Tun Salleh Abas and two Supreme Court judges Datuk George Seah and Tan Sri Wan Sulaiman was “a political one although the modus operandi might seem to have followed constitutional arrangements”. (p. 360).
Describing it as “the biggest scandal that Malaysia has thus faced in the context of the executive wanting to assert supremacy”, Rais said that “the whole episode of removing the Lord President was based on the desire of the executive to have untrammelled say in the direction the judiciary should take in the future”.
Rais should not be ashamed or apologetic for his thesis but should be proud not only for the authorship but the correctness of his analysis of the 1988 judicial crisis.
As a direct consequence of the 1988 judiciary crisis, for over a decade, the Malaysian system of justice became a national and international joke and scandal because it was seen as an engine of oppression and denial of the rights of the people to justice.
The Malaysian judiciary was the constant subject of a series of adverse criticisms by the international legal and judicial community, from the 1989 report entitled "Malaysia: Assault on the Judiciary" by the the Lawyers’ Committee for Human Rights to the "Justice in Jeopardy: Malaysia 2000", a joint report of International Bar Association, the Centre for the Independence of Judges and Lawyers, the Commonwealth Lawyers' Association and the International Lawyers' Union in April 2000.
As I have said often in the past five years, although the rot in the system of justice had been stopped, we have yet to see a full restoration of the system of justice with a truly independent judiciary and a just rule of law.
For this to be effected, far-reaching judicial reform to uphold judicial accountability, independence, impartiality and integrity - whether in reform of the Judges’ Codes of Ethics or a fair and transparent system of making judicial appointments – is called for.
Even an examination of the Malaysian Constitution is necessary if there is to be a full restoration of public confidence in the judiciary.
There should, for instance, be amendment of Article 121(1) of the Constitution to restore the inherent judicial powers and jurisdiction of the courts.
Rais said in "Freedom under Executive Power in Malaysia" that the removal of the "judicial power of the Federation" from the High Courts after the 1988 judicial crisis "endangered" the constitutional doctrine of the separation of powers.
Rais described the removal of the court’s judicial power as "death strokes to judicial independence", saying that it was "a direct reaction by the executive to the attitude of the courts in certain decisions that went against the government, particularly during the two years preceding the amendment".
It is time that the Cabinet effect a dual restoration – to restore the honour of the victimized judges and to restore the inherent judicial powers of the courts by reinstating the original provision in Article 121(1) before the 1988 constitutional amendment.
Opposition Leader, MP for Ipoh Timur & DAP Central Policy and Strategic
Planning Commission Chairman