The Malaysian Bar's International Malaysia Law Conference ("IMLC") 2018 is taking place from 14 to 17 Aug 2018 at The Royale Chulan Kuala Lumpur.
by Gregory Das, Member of the Bar
5th Raja Aziz Addruse Memorial Lecture | 30th Anniversary of the 1988 Judicial Crisis: Lessons about the Importance of Judicial Independence and Impartiality
It has been 30 years since the series of events that will eternally be recognised as being the blemish on the legal history of the country. The 1988 Judicial Crisis saw, as its genesis, the unjustified suspension and dismissal of Tun Salleh Abas as Lord President, due to representations he made to the King that expressed concerns over the attacks against the judiciary by the Prime Minister. Many perceive the crisis to have been the
starting point in the decline in judicial independence in the nation. The question is often asked: Has the Malaysian judiciary ever recovered from the events of 1988?
There was no better forum for that question to be answered than in the now–iconic lecture series held in honour of the very person who led the legal team that challenged the action taken against Tun Salleh Abas: Raja Aziz Addruse himself. There was also no better speaker to examine the issue than the doyen of Malaysian constitutional law, Emeritus Professor Datuk Dr Hj Shad Saleem Faruqi.
Professor Shad began his lecture by underscoring the centrality of the judiciary in the Malaysian constitutional framework. He noted that the judiciary discharged an indispensable role in preserving the rule of law and constitutionalism nationally. It was remarked that the importance of an independent judiciary was rooted in the primary function of the courts as an essential check and balance against the conduct of, amongst others, the other branches of state.
The speaker then outlined the provisions in the Federal Constitution that served to protect the independence of the judiciary. This occasioned reference to, amongst others, the constitutional provisions on the terms of service of judges (Article 125(7)), the transfer of judges on the advice of the Chief Justice (Article 122C), and the rules that insulate judges from political interference (such as Article 127, which prohibits parliamentary debate on the conduct of judges save for in limited circumstances). Particular mention was made of Article 125, which provides for the tenure of superior court judges and states that such judges cannot be dismissed except on the recommendation of a tribunal of their peers. It was noted that this safeguard “failed tragically” in the 1988 Judicial Crisis, in view of the removal of Tun Salleh Abas by an improperly constituted tribunal.
Professor Shad proceeded to examine the unsatisfactory aspects of the Constitution in safeguarding judicial independence. The discussion was prefaced by the frank remark that “[s]ystems are only as good as the people who administer them”. References were made to recent episodes where judicial functionaries were seen to have exceeded their powers to influence the outcome of particular cases. The Likas by–election case of Haris Mohd Salleh v. Ismail Majin was cited as an example of where “a judge’s freedom of action can be threatened by pressures from his judicial superiors. It was not unknown that some Chief Justices try to influence their juniors to reach particular outcomes and to show regard for bigger considerations”.
Reference was also made to the infamous “Lingam Gate” case where even lawyers appeared to abuse the system. It was in this context that the speaker made mention of the lamentable stories of alleged judicial corruption and the role of errant lawyers in the same. Professor Shad then refrained from enumerating a complete list of examples on the issue by stating that “[t]he 1988 judicial crisis gave birth to number of other shameful tendencies in the judiciary that are too painful to acknowledge”.
The lecture then took a somewhat positive turn in reviewing the courts’ performance in the domain of judicial activism. Professor Shad likened judicial activism to a barometer of the level of judicial independence in a country. The speaker’s discussion on judicial activism focused on the court’s interpretation of legislative and constitutional provisions. The speaker accepted that the general trend favoured a literal construction of provisions that prescribed wide and subjective powers. Nevertheless, Professor Shad referred to recent cases that have demonstrated an activist approach adopted by the courts and the developing preference to accord a prismatic and creative construction of the Constitution and laws generally. The appellate decisions of Semenyih Jaya, Indira Gandhi, Mat Shuhaimi Shafei and Lee Kwan Woh were cited as venerable examples. This ultimately led to the speaker’s assessment that “there is enough in Malaysian constitutional jurisprudence to provide a renaissance in public law” and that judges were taking steps to move the Constitution “from the peripheries to the centre”.
Professor Shad concluded with the candid remark that “[t]he judicial winter that descended in 1988 has not yet fully thawed”, but recent circumstances have shown more judicial activism in the present day than in the Tun Salleh Abas era. The growth in judicial activism perhaps provided the basis for the parting words of the lecture, which appeared to attribute any advancements in judicial independence to the individual judge, by observing that “despite some flaws in the laws, judges are as free to walk the path of justice as their conviction beckons them to. Many do. Ultimately the issue is one of character, courage and integrity”.
The full paper by Emeritus Professor Datuk Dr Hj Shad Saleem Faruqi is available here on the Malaysian Bar website: goo.gl/UTXeyu
Memorial Lecture Series
In 2011, Bar Council Malaysia instituted the Raja Aziz Addruse Memorial Lecture series in memory of Raja Aziz Addruse, the Malaysian Bar’s President thrice over.
Please click on the links below to access copies of the previous Raja Aziz Addruse Memorial Lectures:
Ben Emmerson QC, United Nations Special Rapporteur on Human Rights and Counter–Terrorism: “Counter–Terrorism, Human Rights and the Rule of Law — The UN Perspective” (27 Sept 2012)