April 16, 2008 by jebatmustdie
Yesterday, I accidentally came upon several interesting articles by Datuk George Seah through Melvin Mah. Took me about 1 hour to read all the articles and comprehend their contents. Please bear with me as I try to dissect one of biggest judiciary issue of all time. This article may be long and tenuous for some so just sit back, adjust your eyesight and just bear with me on this one.
I think people have been grossly misdirected in blaming solely Tun Dr Mahathir for the judiciary crisis in 1988. This is partly because of the strong accusation from the opposition and the silence of Dr Mahathir in clearing the air.
So what is the judicial and constitutional crisis of 1988? Does it affect everyone? Does it affect our day to day lives? Why are we so angry? Are we assuming that the normal laymen will not get justice in the courts because of what happened in 1988? Honestly, if you were suspected to murder someone, and were dragged to the high court, would you scream on top of your lungs saying that the courts will not be independent or clean because 20 years ago, a Lord President was unjustly dismissed? Is our judicial system unfair in dispensing justice to every Malaysian Tom, Dick and Harry?
A couple of months ago when a rapist was sentenced to a 15 years jail term, was that an unfair judgement by the judge? After 1988, several thousands of cases were dispensed justice by the judges. How come nobody cried foul on all the verdicts? What exactly are we saying when we shout ‘the Malaysian judiciary is in shambles because of the 1988 judiciary crisis’?
Again, did the 1988 crisis affected you directly? If people are still relying on the court to settle disputes then surely the court’s credibility is still intact. Logic dictates, you can’t be accusing one thing for being unjust and unclean but at the same time still believing it to be the sole dispenser of justice. Even the opposition uses the courts to sue the government. If they have no confidence in it, then why use the courts at all? When even the opposition gives this sort of stamp of approval, won’t the public use it in earnest as well? It is highly immoral of some quarters to shout about the so called injustice being done 20 years ago and berating about the downfall of the judiciary system when they themselves benefited from it at one time or the other (e.g., Karpal Singh won several cases in which he was the defence counsel. Did he ever complain about the courts when the verdict went his way?)
Okay, enough digressing. Let’s move on to my next point – What really happened?
I read with keen interest on what Datuk George Seah had to say regarding the matter. What a long read it was. But highly interesting and revealing. In short, in my opinion, it wasn’t entirely the fault of Tun Dr Mahathir. The sacking of Tun Salleh Abas can allegedly be seen as a form of coup d e’tat by the ones who benefit most from the sacking – Tun Hamid Omar, the acting Lord President at that time and several other judges. Compounded by the fact that the Agong at the time was unsupportive and possibly hold a grudge against Tun Salleh. Now, I am not accusing. I am just analysing it based on the turn of events described by Datuk George Seah and also via the admittance by Tun Salleh Abas pertaining his meeting with the then Prime Minister at the latter’s office on that fateful day on May 27th, 1988. We shall explore and dissect the turn of events which had led to my conclusion one by one. Hopefully, the people out there would stop all these blaming game and move forward. No point of trying to gain political mileage if the basis of your accusation is wrong from the start.
Through Datuk George Seah’s articles;
It all started on the 24th April 1987. The then Prime Minister Datuk Seri Dr Mahathir Mohamad just won a bitterly fought battle for the Umno presidency by a majority of 43 votes. Even though in the run up to the elections, Tengku Razaleigh only received 20 over nominations from Umno divisions as compared to 100 over by Dr Mahathir, the thin majority he received during elections were a surprise to many pundits. Subsequently, the losers (Team B) unable to accept the defeat, began to find faults within the election system. Note that several current ministers in the cabinet now were part of this Team B such as the Prime Minister himself (Datuk Seri Abdullah Ahmad Badawi), Datuk Seri Rais Yatim, Datuk Shahbery Cheek, Datuk Seri Nazri Aziz, Datuk Shahrir Samad etc.
A civil suit propagated by a meeting at Datuk Seri Abdullah Ahmad Badawi’s house were filed by a band of 11 Umno members in the high court. Among the plaintiffs’ lawyers were Datuk Seri Sheikh Radzi and Marina Yusuf. They sought to annul the elections based on unregistered Umno branches and therefore hoping the courts would declare that the elections were null and void and have no effect. However in the end, on 4th February 1988, the presiding judge, Dato Harun Hashim declared that Umno itself is an unlawful society (due to some branches were not registered), and since Umno is an unlawful society, the Umno 11 have no legal standing to seek reliefs from the courts. His exact words were:
“as members of UMNO, cannot acquire any right which is founded upon that which is unlawful. The Court will therefore not lend its aid to the reliefs sought by the Plaintiffs (UMNO 11). Having said that, I do not think it is necessary to deal with the other issues and I accordingly dismissed the Plaintiffs’ claim”.
In other words, Umno was declared illegal and unlawful through the undoing of Umno 11 who tried to find small technical errors in order to overturn the recent Umno elections to their favour. Basically, the oldest Malay institution were rendered powerless by a bunch of extreme sore losers (Team B). It is so irresponsible for certain quarters to accuse Dr Mahathir as the main villain in deregistering Umno in 1988.
For several months leading to the sacking, the government had lost several landmark cases against them. Even an ISA detainee Karpal Singh, whom had incited racial tension and hatred in October 1987 was released by the Supreme Court only on the basis of a mere technicality. This made the government nervous since having a strong power of the legislation is very important in order to run the country efficiently. Dr Mahathir made scathing attacks towards the judiciary by declaring them to be too fiercely independent up to a point of willing to jeopardize the security of the nation. He famously told Time Magazine about what he thinks of the judiciary:
“The judiciary says (to us), ‘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. We know exactly what we want to do, but once we do it, it is interpreted in a different way, and we have no means to reinterpret it our way. If we find out that a court always throws us out on its own interpretation, if it interprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish.”
With that in mind, several judges began to feel uneasy by the attacks from the legislative branch of the government especially the ones made by the then Education Minister, Encik (now Datuk Seri) Anwar Ibrahim in Penang whereby he accused the judges as wanting to be above criticisms. Hence, a complaint letter was drafted and signed by 20 judges to be sent to the then Agong on 25th March 1988.
Cross referencing with what Tun Salleh Abas mentioned in his book, May day For Justice, (let me point out here that in its foreword, Tunku Abdul Rahman, our first Prime Minister, claimed that any Lord President is beyond reproach. Lord Presidents must never be questioned or removed as the thought of removing a Lord President is very repugnant. I find it a bit odd as we as a person will not escape making mistakes or immune to temptations. We are not ‘maksum’ like the Prophets of God) he said that Tun Hamid Omar were showing odd behavior prior to his suspension by ways of cutting short his own intended holiday as well as seemingly working against him behind his back. Along with another 3 judges, Tan Sri Hashim Yeop Sani, Dato Harun Hashim and Datuk Ajaib Singh, we can see that a major conspiracy had taken place behind Tun Salleh’s back which was spearheaded by Tun Hamid Omar.
To cut the story short, Tun Salleh was suspended on the 26th May 1988 and was eventually charged on 4 counts of improper conduct and misbehavior unbecoming of a Lord President. Among others, were the distribution of letters to all rulers dated 25th March 1988 which the Agong took exception. This date would be the point of reference for all the subsequent events that will flow through. In other words, the conspirators used this letter to tarnish the Lord President’s good name. As he was on holiday leave in Los Angeles and London and then umrah in Mecca for nearly 8 weeks, there were ample time and space for the conspirators to make their move. Upon returning on the first day of Raya on 17th May 1988, Tun Salleh’s fate had in fact already been sealed.
Please take note that the Prime Minister at that time had no powers to remove the Lord President as evident in the Article 125(3) of the Constitution:
“If the Prime Minister, or the Lord President after consulting the Prime Minister, represents to the Yang Di-Pertuan Agong that a Judge of the Supreme Court ought to be removed on the grounds of misbehaviour or of inability, from infirmity of body or mind or any other cause, to properly discharge the functions of his office, the Yang Di-Pertuan Agong shall appoint a tribunal in accordance with Clause 4 and refer the representation to it; and may on the recommendation of the tribunal remove the Judge from office.”
And the infamous Tribunal was duly set up. Headed by Tun Hamid Omar himself as the Acting Lord President. Two days before the commencement of the tribunal, the other rulers met Tun Salleh Abas and they were willing to forgive him for the breach of protocol in the said letter. But to his utter dismay, the Agong was adamant in his decision to suspend him.
In another incident, Datuk George Seah expressed his disbelief in knowing that it was Tun Hamid Omar who had complained to the Prime Minister which led to the setting up of another tribunal, chaired again by Tun Hamid Omar to suspend all five Supreme Court judges. The five judges were deemed guilty by the 2nd tribunal for issuing an Interim Order to challenge the legality of the first Tribunal.
It was interesting to know that before the Interim Order was sealed by the 5 judges, the most senior judge after the Lord President, Tan Sri Wan Sulaiman had invited Tan Sri Hashim Yeop Sani to be part of the 5 judges but was vehemently declined by the latter saying that if he did, then they ”would be staging a revolution” which he did not agree with. Around this time, Dato Harun Hashim, the famous high court judge whom had declared Umno illegal a couple of months earlier was promoted by Tun Hamid Omar to be one of the Supreme Court judge. Incidentally, Dato Harun Hashim and Tun Hamid Omar are related to each other as in-laws. Tun Salleh even stated explicitly in his article that he was most suspicious of the conduct of several of his so called friends whom are Tun Hamid Omar, Tan Sri Hashim Yeop Sani, Dato Harun Hashim and Datuk Ajaib Singh during the preceding weeks leading up to his sacking.
In the end, together with Tun Salleh Abas, Datuk George Seah and Tan Sri Wan Sulaiman were removed from office. This sad episode actually illustrates the huge chasm of the interpretation of the law between 2 branches of the government. Dr Mahathir strongly believes in the reason and the spirit of the law while Tun Salleh Abas upholds the sanctity and purity of judges and the law. One believes in the power of the legislation while the other advocates the total and absolute independence of the judiciary. Both are correct. Both are wrong. The coin has two sides.
More interesting also is the revelation by Tun Salleh Abas that - “although the Prime Minister at that time was deemed responsible for bringing down the judiciary, the judiciary itself could not have been brought down without the help of its own self. But there were also desperate judges then who had no qualms about stabbing a friend in his back in order for their own dreams to be fulfilled”.
There were indeed victims of the whole drama. The people involved and the system. Obviously during the fight for supremacy only 1 side will prevail. However it did not justify the use of guile by some of the judges. Tun Salleh Abas stressed that Tun Hamid Omar tried to undermine his appointment as Lord President in 1984 and repeatedly made unilateral decisions during his tenure as Acting Lord President in 1988.
The years of 1987 and 1988 can be deemed as the most trying years for the then Prime Minsiter. Apart from the devastating Umno elections in 1987, which proves to be the watershed for several amendmends in the Umno Constitution and the suspension of the Lord President in 1988, we witnessed the rise of racial tension and an unprecedented power struggle between the Malays and the Chinese. The events were best captured in these articles below:
By Graham K Brown - Balancing the Risks of Corrective Surgery: The political economy of horizontal inequalities and the end of the New Economic Policy in Malaysia
“The first indication that sections within the MCA was willing to push a harder line for the resolution of Chinese grievances came in November 1986, when the Selangor branch of the MCA, which was headed by the national deputy president and Labour Minister Lee Kim Sai, passed a resolution calling for the abolition of bumiputera status for the Malays and the East Malaysian natives. The resolution provoked an immediate backlash from UMNO members, who interpreted it as a demand for the end of the cherished Malay ‘special rights’. Forty-six UMNO MPs wrote to Mahathir, asking him to sack Lee from the cabinet, who himself offered to resign. Whilst the rift was quickly patched over in public – the Selangor MCA withdrew the resolution and the Sultan of Selangor publicly reprimanded Lee and warned him not to question Malay special rights – many within UMNO remained unappeased, and it contributed to deteriorating relations between the parties, most notably in the virtual demonisation of Lee that was to arise later in 1987 (Asiaweek, 23/11/1986).
Tensions between the MCA and UMNO soon spilled over into broader ethnic tension with Malaysian society. Language and education issues – a political flashpoint since the days of the Malayan Union plan in the 1940s and, as we have seen in relation to the Merdeka University controversy, accentuated by the social programme of the NEP – proved to be the spark point for the escalation of tensions.
The first round of protests came in August, when Universiti Malaya instituted a ruling limiting the use of Mandarin, Tamil and English in the teaching of elective subjects. The decision provoked demonstrations from non-Malay students, who interpreted the ruling as an attempt by the administration to boost the academic performance of the Malays compared to the other ethnic groups (NST, 02/08/1987).
The ever-belligerent UMNO Youth soon waded into the controversy, criticising the demonstrators but doing nothing to prevent counter-demonstrations by students supportive of the university’s move (NST, 04/08/1987).
As the protests continued, police were forced to keep the contending groups of demonstrators apart (NST, 18/08/1987).
By October, the DAP had become involved in the protests and the police were making numerous arrests (NST, 10/10/1987).
The Universiti Malaya uproar was soon overshadowed, however, by a national level dispute, also concerning language and education, when the Education Minister Anwar Ibrahim announced the promotion of around ninety teachers who were not educated in Chinese-language schools to senior positions in government-supported Chinese-language primary schools. The promotions caused a storm of protest from the Chinese community, which saw the move as an attempt to ‘change the character of the Chinese schools’, and perhaps ultimately pave the way for their disestablishment (Tan 2000: 244).
Although Anwar quickly backed down over the appointments, Chinese opposition parties and educationalist groups continued to protest, demanding the instant withdrawal of the appointees. Again, the Chinese parties in the BN were clearly pressurised by the protests into adopting a more chauvinistic position, for fear of losing ground to the DAP. In a sensational turn, the MCA and members from other Chinese parties in the BN, again led by Lee Kam Sai, thus joined a protest rally with the DAP and other Chinese-based opposition parties, calling for a boycott of the schools involved (NST, 12/10/1987).
The boycott saw over thirty thousand children kept away from school by their parents (NST, 16/10/1987).
The cycle of protest was intensified by a series of counter-demonstrations organised by various groups with UMNO. On the same day as the MCA-DAP joint rally, some five hundred UMNO members also held a demonstration, but the primary target of their anger was their coalition partner the MCA, rather than the DAP; demonstrators burnt MCA flags and posters (NST, 12/10/1987).
Subsequently, on October 17, UMNO Youth held a rally at a disused stadium in Kampung Baru, a large Malay district in Kuala Lumpur. The rally, attended by some six thousand people, was highly chauvinistic, and the target of the protesters wrath was against the government MCA rather than the opposition DAP. Banners called for the resignation and of Lee Kim Sai, and urged the MCA to ‘go to Hell’ (pergi Jahanam). Other banners expressed broader and often violent anti-Chinese sentiments: ‘May 13 has begun’, a reference to the ethnic riots of 1969, and ‘Soak [the kris] in Chinese blood’ (Malaysia 1988: 17).
The UMNO Youth president, Najib Tun Razak, addressed the crowd, calling for Lee’s resignation and demanding that the MCA acquiesce to government policy, or else leave the BN (Asiaweek, 20/10/1987).
By the end of October 1987, then, ethnic tensions in the country were reaching critical levels. As news spread of freak shooting incident when an army sergeant (Prebet Adam) ran amok killing one Chinese and wounding another Chinese and a Malay in the Chow Kit area of Kuala Lumpur, the centre of the 1969 riots, many people rushed to stockpile food, fearing the outbreak of rioting. Increasing public attention was focussed on a mass rally planned for 1 November to celebrate UMNO’s fortieth year, postponed since 1986 (the actual anniversary) and relocated from Johor (UMNO’s birthplace) to Kuala Lumpur. Up to a half million Malays were expected to join the rally, in what was seen by many as a show of strength by Mahathir against the UMNO dissidents (Asiaweek, 06/11/1987).
With ethnic tensions running high, however, it was feared that the rally would prove to be the spark point for fresh riots. In such a context, there was little doubt that the government needed to take action to calm sentiments and prevent an escalation of conflict.”
Now if you’re the PM, what would you do at this point?
By Khoo Boo Teik – Paradoxes of Mahathirism : An Intellectual Biography of Mahathir Mohamad
On Tuesday, 27 October 1987, the police launched Operasi Lalang [Operation “Weed Out”] within the first day, Operasi Lalang made fifty-five arrests, all under the ISA [Internal Security Act which provides detention without trial] of DAP (Democratic Action Party) MPs, a DAP state assemblyman, second echelon MCA (Malaysian Chinese Association) leaders, Chinese educationists, prominent NGO figures, and university lecturers.
Three newspapers, The Star, Watan, and Sin Chew Jit Poh, were suspended indefinitely.
Over the next few days, more people were arrested, including politicians from Pemuda UMNO (UMNO Youth) … Gerakan, PAS (Malaysian Islamic Party,) and the PSRM (Malaysian Socialist Party,) local Muslim teachers, members of some Christian groups, and other NGO activists.
The arrests spread geographically from Peninsular Malaysia to Sarawak where local environmentalists and anti-timber logging natives were also detained. The waves of arrests, though lessening after October, continued until the number of detainees reached a peak figure of 119 in December.
On a side note, after Umno was declared unlawful and cease to exist on 4th February 1988, Malaysia effectively had no Prime Minister, Deputy Prime Minister and many other ministers from Umno. The next leader in line was non other than Datuk Seri (now Tun) Ling Liong Sik as MCA holds the most seats in the Dewan Rakyat. He chaired the subsequent cabinet meeting without the presence of all Umno ministers including Dr Mahathir. Malaysia was effectively ruled by an MCA President at that time even if it was for a short while. MCA could have staged a coup d e’tat of the country on their own but they did not. For that, Umno was forever grateful to the MCA.
In conclusion, it is easy to criticise in retrospect on what had happened in the past. Being a leader is never easy. Only the brave, the decisive, the intelligent and the wise will succeed. Doing what is right may not necessarily be as vital as doing what is best for the nation and its people. Even when the decision proves to be very unpopular. Only time will tell and history be the judge. Wallahu’alam.
Please note that my observation and analysis is solely based on my opinion on the articles by the affected parties which are available online. Any facts which may have escaped me or some events that happened which were not disclosed to the public may certainly strengthen or weaken my findings above. Therefore I beg anyone whom has the knowledge and evidence to substantiate their own findings to share with us here. However, it is hoped that the evidence and knowledge shared were obtained from the main parties affected and not through hearsay or third party referrals. Thank you.