Here's how our judiciary lost independence in 1988

Unless you’re on a social media cleanse, you must have heard about the recent allegations made by a judge named Datuk Dr Hamid Sultan Abu Backer. For those who don’t know or need a little recap, Backer was a briyani chef turned Court of Appeal Judge. He recently cooked up a media storm when a court document made by him was leaked. In that document, he alleged that there are judges involved in certain unsavoury conduct that threatens the integrity of our court systems (#BriyaniKeranaBenar). Examples included judges allegedly ruling in favour of the government in return for promotions, as well as allowing the courts to be part of a system where government officials launder money.  We can’t go through all the allegations here in detail, but if you really wanna know more about it...

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We can’t say for sure if these allegations were true for now. But assuming that it is, you may be thinking “Aiya every country the government will have some corruption la”, well this matters because the judiciary has to be independent. Because one of their main functions is to keep the government from performing unlawful acts. 

Thus given that Backer is complaining about the judiciary being the way it is, it must or could mean that once upon a time our judiciary was pretty independent. And some would say that time was in the 1980s…….

When the courts were quite independent

According to a legal journal written by A.J Harding, the Malaysian courts were described as independent. He also added that the judges were so top notch they were considered some of the best in the Commonwealth. In addition to that, the courts upheld the rule of law, regardless of whether it would have struck down government actions.

Here are 3 examples that A.J Harding used to make his point. We won’t be getting into legal reasonings into the decisions here so much, we just wanna highlight the fact that courts did make decisions against the government, when they found their actions to be unlawful. And also it’s imperative for us to emphasise that, it’s not always 

This case concerned a journalist from the Asian Wall Street Journal (ASWJ) who was based in Malaysia named JP. JP and the ASWJ reported certain news pieces that allegedly showed certain unsavoury behaviours concerning the Malaysian government. The Malaysian government in turn revoked JP’s work permit.

JP then brought the government to court to challenge the revocation of his permit, and the court actually gave judgement in favour of him – basically cancelling the act of the government because it was unlawful.

Mamat and a couple other fellows were allegedly conducting activities in a mosque without authorisation. The government charged them under then Section 298A of the Penal Code which states that it’s illegal to prejudice disunity among those professing the muslim faith. 

In court, Mamat didn’t do what normal accused people do – which is show evidence he didn’t commit the crime. Instead, he claimed that the law in question (s294A) was unlawful because it goes against the constitution which states that islamic law is a matter of individual states not the federation.

The court agreed with them and basically declared s294A as null and void.

Persatuan Aliran is a registered society promoting reform movements. They published magazines called the Aliran Monthly, with an annual permit for publishing by the government. 

They in turn tried to obtain a permit to publish another Malay magazine called Seruan Aliran, but it was rejected by the Ministry of Home Affairs. The decision of the government was challenged in courts, and the court found that the decision was no in-line with already established legal principles. The decision of the ministry was thus cancelled off. 

Things changed after the UMNO elections

Again we have to remind you that not all cases against the government, the government will lose. It’s just that arguments were made that the judiciary was independent enough to declare acts of government were unlawful, when in fact the government broke the law.

So now to the meaty part. UMNO had elections for their President in 1988, and Mahathir won it by 43 votes. There were those that were not happy with the votes and one of them was Tengku Razaleigh. His friends decided that it’s best to challenge the election results from the court. During trial, in an unlikely turn of events the court declared UMNO an illegal party. The UMNO that we knew, cease to exist. 

So the next move by Dr.M was to form a new party called UMNO Baru, and the next move by Ku Li’s friends were to appeal the decision to a higher court.

The leader of the judiciary wanted to hear the appeal

Because UMNO Baru was a new party, Mahathir attempted to created new laws in Parliament to transfer assets from the old UMNO to UMNO Baru. While he was in Parliament, he made further statements against the judiciary again.

While this was happening, the Lord President (the man leading the Judiciary) Tun Salleh Abas decided that the appeal by Tengku Razaleigh Hamzah should be heard. In addition to that, he got some of his  judge buddies to attend some sort of a meeting. The result of which, was a written letter sent to the YDPA asking him to reduce tensions between the government and the judiciary. 

Unfortunately things didn’t go so well for Tun Salleh Abas, because right after that letter a tribunal was set up to determine if Tun Salleh Abas should remain in the judiciary. And because we obviously wouldn’t be writing this article if Tun Salleh won the case, he actually lost the case – meaning was literally fired from his post.

Conclusion

We aren’t trying to say that these events resulted in the alleged loss of integrity and independence of our judiciary. What we’re trying to point out is the first instance in which there’s alleged meddling by the government in the judiciary. This matters because separation of powers. 

We may know UMNO as the party that ruled Malaysia since independence until 2018. But the UMNO that was formed pre-independence and the UMNO that we have today are two different parties. 

In 1987 UMNO held internal elections to decide who was gonna lead their party. At that time Mahathir was leading the party and basically due to the elections there were others gunning for his position. Nevertheless Mahathir won that election, but only with a majority by 43 votes. 

One of his challengers, Tengku Razeleigh wasn’t very satisfied with the outcomes of the elections and he challenged it in court. What he wanted was to cancel off the election results and have a new election. What he got instead, was the court declaring that UMNO was now an unlawful society.

The result of that decision was that Mahathir started a new party called UMNO Baru (which is the UMNO we have today), and Tengku Razaleigh challenged the High Court’s decision via appeal. 

Once upon a time in the 80s…

Long before avocados were a staple diet of millennials or even before there were millennials, Mahathir was Prime Minister, and he was a Prime Minister who locked horns with our courts quite a bit. 

In 1986 the Asian Wall Street Journal wrote an article which was quite salty about the government at that time. In response, the publication was banned and the work permits of two of their journalists were revoked.

These journalists didn’t just shrug their shoulders and go “Well, that’s life”, they challenge the government’s action in court. The Supreme Court (now known as the Federal Court), actually lifted the ban – basically nullifying the government’s actions.

If you really know Tun M, he doesn’t stay quiet for long (seditious). In response to the court’s decision Mahathir told Time magazine:

"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."

He basically meant, Parliament makes the law and make it with a particular purpose in mind. He went to add that the courts don’t seem to heed that purpose and they interpret the law according to their whims and fancies. 

While sticks and stones may break my bones may apply to playground insults, these kinda back and forth between government and judiciary may not be so healthy. Don’t worry, we’ll explain why in a bit. But words later escalated to actions when…

UMNO was declared illegal

We may know UMNO as the party that ruled Malaysia since independence until 2018. But the UMNO that was formed pre-independence and the UMNO that we have today are two different parties. 

In 1987 UMNO held internal elections to decide who was gonna lead their party. At that time Mahathir was leading the party and basically due to the elections there were others gunning for his position. Nevertheless Mahathir won that election, but only with a majority by 43 votes. 

One of his challengers, Tengku Razeleigh wasn’t very satisfied with the outcomes of the elections and he challenged it in court. What he wanted was to cancel off the election results and have a new election. What he got instead, was the court declaring that UMNO was now an unlawful society.

The result of that decision was that Mahathir started a new party called UMNO Baru (which is the UMNO we have today), and Tengku Razaleigh challenged the High Court’s decision via appeal. 

The leader of the judiciary wanted to hear the appeal

Because UMNO Baru was a new party, Mahathir attempted to created new laws in Parliament to transfer assets from the old UMNO to UMNO Baru. While he was in Parliament, he made further statements against the judiciary again.

While this was happening, the Chief Justice (the man leading the Judiciary) Tun Salleh Abas decided that the appeal by Tengku Razaleigh Hamzah should be heard. In addition to that, he got some of his  judge buddies to attend some sort of a meeting. The result of which, was a written letter sent to the YDPA asking him to reduce tensions between the government and the judiciary. 

Unfortunately things didn’t go so well for Tun Salleh Abas, because right after that letter a tribunal was set up to determine if Tun Salleh Abas should remain in the judiciary. And because we obviously wouldn’t be writing this article if Tun Salleh won the case, he actually lost the case – meaning was literally fired from his post.

And then…

Well if you’re thinking this is just basic politics, because in politics people fight – I mean heck even President Donald Trump fired quite a bit of people in his government. But the problem is, the government shouldn’t meddle in our judiciary.  If you’re thinking that’s an Asklegal opinion, it’s actually a well established legal principle.

This principle is known as “separation of powers”, and it basically states that the government, judiciary, and parliament should be separate and act as a check and balance to prevent democracy from being destroyed. This is because, sometimes the government will get brought to court. If the judges are scared of getting fired, they can’t adjudicate such cases fairly. This can result in the government abusing their powers. 

But in a turn of events almost two decades later, Tun M explained that it wasn’t him who got Tun Salleh Abas fired. In fact, Tun M stated that that he was acting under suggestion from the YDPA at that time, who was displeased with Tun Salleh Abas. Nevertheless we will never know who actually orchestrated the tribunal, since the YDPA has passed away.

Recently Malaysians were shocked by allegations revealed about unsavoury practices by members of our judiciary. But this isn’t the only time problems crept in to our judicial system. 

Many years ago our PM Tun M used to lock horns with our courts. 

This ain’t healthy because they’re supposed to be separate. [Give explanation on separation of powers]

So here’s what happened

Header 1: Our courts used to cancel off government actions

- Suspension of journalists

- UMNO elections

Header 2: Tun M spoke out against these judicial decisions

- Judges interpret the law without looking at the intention of the law

- Why Mahathir shouldn’t speak out against judges like that

Header 3: Tribunal set up to fire Salleh Abas

- Who set up tribunal? Some say Tun M some say YDPA. Tun M blames dead YDPA

- Who sat in the tribunal

- Result: Tun Salleh Abbas fired

Header 4 : Why this matters, people get fired anyways

- Judges can’t do their work if they scared the gahmen will fire them

- Undemocratic because gahmen get sued in the courts

CONCLUSION

- Demi kemakmuran negara, integriti kehakiman negara perlu diluhurkan untuk memastikan demokrasi terus bernafas di Tanah Airku ini. Just kidding ill come up with a better conclusion as I go along