When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lets the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. (Montesquieu, Spirit of Law 1748)
The theory of Separation of power was first introduced by Montesquieu (a French philosopher and author) in his book Spirit of Law (Esprit Des Lois, 1748). The book was written while visiting to England in comparison to political system practiced in his country. At that time, his country was governed by Louis XVI who proclaimed that I am the state which mean he hold the absolute power of the country. Montesquieu strongly recommended that government should be separated under three branches (Executive, Legislative, and Judiciary) in order to prevent conflict and abuse of power. His further emphasis that no man can be member of both branches of government at the same time; hence each branches of government can monitor each other and stop abuse of power if necessary. Also, When Executive and Legislature fused together, freedom will be limited and apprehension will arise at every corner of the country because the authority may enact and execute the tyrannical laws on the people.
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Separation of Power in Malaysia context was well explained by Justice Raja Azlan Shah. His Highness said that The Constitution is not a mere collection of pious platitudes. It is the supreme law of the land embodying three basic concepts: One of them is that the individual has certain fundamental rights upon which not even the power of the State may encroach. The second in the distribution of sovereign power between the States and the Federation .. The third is that no single man or body shall exercise complete sovereign power, but that it shall be distributed among the Executive, Legislative and Judicial branches of government, compendiously expressed in modern terms that we are a government of laws, not of men. (Justice Raja Azlan Shah, 1975)
From his Highness clever and profound said, the concept is clearly known as separation of power. Being a country that practice democracy, the sovereignty of nation should not be vested only to one person and it should be distributed equally and divided to three branches of government (Executive, Legislative and Judiciary) in order to prevent evil of absolute power and ensure the right of every citizen is preserved. It is crucial to understand the theory and principle of separation of power before we further look in to the reality of politic in Malaysia.
Malaysia adopted Parliamentary democracy and Constitutional Monarchy since achieving independence from British rule. The structure of government and political system are very similar to what is practiced by Great Britain.
Malaysia comprises of 13 federated states and 2 federal territories (Kuala Lumpur in the state of Selangor and Labuan, an island of the state of Sabah). Prior to Independence Day, a Report was completed by Reid Commission .The Reid commission reviews the report and suggests that it to be adopted. The Federal Constitution provides for the separation of powers and actually speaks of three branches: the Executive (Part IV Chapter 3, Articles 39-43), the Federal Legislative (Part IV, Chapter 4, Articles 44-65), and the Judiciary (Part IX Articles 121-131). In theory, it would appear that the Federal Constitution contemplates the division of powers into three but in practice, the separation of powers in Malaysia is into two. There is no effective separation of executive-legislative power. The Malaysian system is more akin to Westminster than that of Washington. Of even greater commonality is the existence of a hereditary King or Supreme Ruler who is accorded ultimate ceremonial authority as Malaysia s head of state, but who in actuality has wielded little executive power. (Wang, 2000).
The separations of power in Malaysia system mostly like the UK separation of power rather than US. This is because there is no effective separation of executive and legislative power because of the cabinet type of organization. This fusion of legislative and executive functions is inherent in the Westminster system. In Malaysia, the Prime Minister came from the Dewan Rakyat he must be able to won the confident of majority in lower house, In Malaysia the YDPA who is the ceremonial executive is an integral part of the Parliament. The cabinet is appointed by the YDPA in the advice of the Prime Minister. But the system practiced in Malaysia is merely same like Britain it is important to note that the Federal Constitution clearly stated the functions of the three organs of government. In Federal Constitution, Article 121, Article 44 and Article 39 vested the power to three branches of government.
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In Art 121 (Judiciary) provided that There shall be two High Courts of co-ordinate jurisdiction and status, namely (a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and (b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine,
While in Art. 44 (Legislature) The legislative authority of the Federation shall be vested in a Parliament, which shall consist of the Yang di-Pertuan Agong and two Majlis (Houses of Parliament) to be known as the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives).
Article 39 actually provides that [t]he executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and exercisable, subject to the provisions of any federal law and of the Second Schedule by him or by the Cabinet or any Minister authorized by the Cabinet, but Parliament may by law confer executive function on other persons. The operative part of this sentence is in the latter half: The Yang di-Pertuan Agong, like the modern British monarch, understands that while he is to be consulted, (he must act on the advice of Prime Minister). Hence, the actual authority lies with the Prime Minister and his Cabinet. In the words of the Federal Constitution, he shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except, as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government if the Federation which is available to the Cabinet.
Malaysia practice Parliamentary democracy and Constitutional monarchy .in which there are no effective separation of power between executive and legislature and in democratic system of governance, a continuum exist between Presidential Government and Parliamentary Government. Separation of power is a feature more inherent to presidential system, whereas fusion of powers is characteristic of parliamentary ones. Mixed system fall somewhere in between usually near the midpoint, the most notable example of a mixed system is France s (current) Fifth Republic. In fusion of power, one state (invariably the elected legislature) is supreme and the other estates are subservient to it. In separation of power, each state is largely independent of the other. Independent in this context means either that selection or at least each state is not beholden to any of other for its continuing existence.
In Malaysia, the legislative branch of government contains three major elements - the Yang di-Pertuan Agong, Dewan Negara and Dewan Rakyat. All three elements are important in passing bills or laws tabled at parliament. The Yang di-Pertuan Agong is the Supreme Head of The Federation and also the Leader of Islam in his home state, the Federal Territory of Kuala Lumpur, Labuan, and states which does not have a monarch of their own namely Melaka, Pulau Pinang, Sabah and Sarawak . His majesty however does not have any power in the administration of the state. In his official capacity as the Sovereign of the country, His Majesty is compelled to accept advises from the executive branch of the government - the Cabinet, which is headed by the Prime Minister. In the United States however, as the Head of State and Head of the Government, the President holds full administrative power. He is however accountable to Congress (legislative branch).
The Dewan Negara (Upper House) has 69 members who are appointed by the Yang di-Pertuan Agong. Its job is to debate Bills passed by the Dewan Rakyat (Lower House or House of Representatives). The Dewan Negara does not have the authority to reject Bills but it has the authority to delay these Bills and to return them to the Dewan Rakyat for rectification and further debate. The Dewan Rakyat or House of Representatives has 192 members (1995) who are elected by the masses in elections which are held every five years. Its main function is to debate Bills introduced or proposed by the executive branch of government. In the United States, both members of these houses (Senate and House of Representatives) are elected to their positions by the masses in elections. The executive branch of government in Malaysia is called the Cabinet or Ministers' Council. It consists of members from political parties which won the majority of seats in the elections and is headed by the Prime Minister. The appointment of ministers is done by the Yang di-Pertuan Agong on the advice of the Prime Minister. Ministers are selected among the members of the Dewan Rakyat or the Dewan Negara. The cabinet is responsible for the running of the country's administration and for drawing up and implementing government policies. Therefore the power of administration lies with the cabinet and the Prime Minister in reality is the person with the highest administrative power (defacto ruler). However, Article 43(3) of the Federal Constitution states that the cabinet is collectively responsible for its actions.
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The structure of government in Malaysia as explained above shows that separation of powers in Malaysia is not as what Montesquieu has suggested. According to Mohd. Salleh Abas (1984), separation of powers is not as rigidly practised in Malaysia as it is in the United States. In fact, what is practised in Malaysia is a modified form of Montesquieu's theory . Montesquieu's thesis that no one may be a member of more than one branch of the government at the same time is not adhered to in Malaysia where members of the executive branch of government are selected from among members of the legislative branch. In the United States, a member of the cabinet may not be a member of Congress (Senate and House of Representatives) at the same time. The Chief Executive (President) is elected by the masses and he in turn will appoint members of his cabinet, called Secretaries, whoever he feels is qualified and capable. However, in line with the theory of separation of powers, appointments made by the President are subject to approval by Congress. Any member of Congress chosen by the President to be a member of his cabinet must resign his post in Congress before his appointment is considered for approval by Congress.
In Malaysia, even though the Yang di-Pertuan Agong is the Supreme Head of The Federation, he is compelled to accept advises from the executive branch of the government - the Cabinet, which is headed by the Prime Minister. However, Article 40(2) of the Federal Constitution invests upon the Yang di-Pertuan Agong limited authority to exercise his discretion: i) in the appointment of the Prime Minister; ii) to allow Parliament to be dissolved; and iii) to allow or reject applications to convene the Conference of Rulers to discuss matters pertaining to the position, privileges and rights of the Sultans. At state level, the Sultan is obliged to accept advises from the cabinet headed by a Menteri Besar (Chief Minister). Conflicts between the Sovereigns and the executive branch have happened many times since independence. One example is the crisis that arose in 1983 when the Yang di-Pertuan Agong refused to give his consent to some amendments of the Federal Constitution pertaining to his position and rights. Another classic example is the crises in 1993 regarding the immunity of Sovereigns from persecution.
In Malaysia, bills are introduced in parliament by the minister whose Ministry is responsible in implementing laws pertaining these bills The Dewan Rakyat's function is to debate on these bills. However, it is necessary to bear in mind that the party that won the majority of seats in Parliament forms the Cabinet. Thus, bills may be passed without much debate and opposition.
Legislature rarely makes laws. Bills pass through the assembly on their way to the statute book and receive some legitimization en rout. But their origin lies elsewhere: - in the executive, the bureaucracy is the interest groups.
The judiciary is widely seen as the only branch of government totally separated from the legislature and the executive in Malaysia. According to Mohd. Salleh Abas (1984), the theory of separation of powers can only be found in the judiciary as judges are separated from the Parliament and administration. However the executive is also empowered to pass judgment in certain matters. As an example, in the Internal Security Act (ISA), the Minister is empowered to decide on the course of action to be taken in detaining a person who is suspected to be a threat to national security. This action may not be challenged in a court of law. In the United States, the power to pass judgment in criminal or civil cases is rest solely in the hands of the judiciary. The America Constitution also provides its Congress with the power to impeach and dismiss Government Officers including the President, Secretaries and judges.
Now we look into the reality of Malaysian governance and politics. The removal of lord president of Supreme Court and the exposure of the controversial vk lingam tape made us question the existence of separation of power in Malaysia. As Malaysia practices parliamentary system in which there are no effective separation of power between legislature and executive, now the intervention on judiciary, is it imply that Malaysia is being controlled by a person who hold the absolute power?
The 1988 judicial crisis is regarded by many as the darkest hour in the history of the Malaysian judiciary and the start of the government abandon from its commitment to uphold the rule of law and protecting the legal profession. It also marks the rise of a culture of executive bias.
The Prime Minister Mahathir Mohammed (from 1984 C 2003) was known for his frequent attacks on the judiciary, which at the time was still regarded as a robust, independent institution. In the late 80s the judiciary made a series of decisions which, according to Dr Mahathir was contrary to the will of Parliament and the government s interests. Dr Mahathir publicly criticised the judiciary which he regarded as being too independent and not giving sufficient consideration to the will of Parliament in its judicial considerations.
In JP Berthelsen v Director General of Immigration reported in  1 MLJ 134 appears to have been the flash point of the conflict. JP Berthelsen was a staff correspondent of the Asian Wall Street Journal who had been granted an employment pass by the Malaysian Government for a period of two years. The Director General of Immigration required him to leave the country and served him with a notice of cancellation effective forthwith of his employment pass. The notice stated that he had contravened the Immigration Act and Regulations, had failed to comply with the conditions imposed on his employment pass and that his presence in the Federation was or would be prejudicial to the security of the country. He was not given any opportunity to be heard. The Appellant applied for an order of certiorari to quash the cancellation of the employment pass but the Judge of first instance dismissed this application. The appeal was listed on 3 and 11 November 1986 for hearing in the Supreme Court before a quorum consisting of Tun Salleh Lord President, Mohamed Azmi and Abdoolcader SCJJ. The Supreme Court in a unanimous written judgment allowed the appeal and quashed the cancellation of the employment pass.
Due to the decision made, it has angered Dr. Mahathir and led him to attack judiciary in an interview it was given to Times Magazine reported in the 24 November 1986 edition of that magazine. The Prime Minister s comments were the following:
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 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. (Mahathir, 1986)
This comment is significant in revealing the Prime Minister s lack of appreciation of the role of the judiciary under the Constitution, and in consequence his frustration with an independent judiciary.
In the speech he attacked the judiciary. Lim Kit Siang cited him for contempt of court when he complained to Time magazine about the obstructiveness of the judiciary. Harun Hashim J (for whom 1988 was clearly an eventful year) threw the case out, but not before he had delivered a disquisition on the separation of powers. On appeal the Supreme Court did likewise. The Prime Minister was unhappy at this slap in the face of the Executive and made his feeling known in Parliament and also to the bureau chief of Time magazine.
In another case, PP v. Dato Yap Peng, involved the constitutionality of a criminal statute authorizing the removal of a case from a subordinate court to the High Court and also was seen in the prevailing environment as reinforce the determination of government to amend Article 121of federal constitution relating to judicial power of the Federation. In this case, the accused was charged under criminal breach of trust and tried in session court. The public prosecutor acting under section 418 of Criminal Procedure Code require the transfer of case and issued a certificate to that effect. The public prosecutor had removed the case from the Sessions Court to the High Court. The High Court agreed that the removal provision violated Article 121(1) of the Federal Constitution and the Supreme Court affirmed. The Government responded to this decision have pushed through Parliament the Constitution (Amendment) Act 1988 which removed the constitutional jurisdiction previously available to the High Courts and the inferior courts and substituted language which subjected the jurisdiction of these courts for federal legislation. Later, the case was appealed to Supreme Court and the case was tried by a bench of five judges including Tun Salleh. This case was dismissed by a majority of 3 to 2 affirming the High Court s decision. Tun Salleh took it from government perspective as it was not the exercise of judicial power because of which it did not infringe Article 121(1). The significance of Tun Salleh s view in this case is that it negatives the allegation made against him in the removal proceedings of anti-government bias during that period.
The judicial crisis is series of events in which can be traced to the 1987 United Malay National Organisation.(UMNO ,the dominant party of Barisan Nasional,in which Dr.Mahatir is the leader of the party. ) and ended with the suspension and eventual removal of the Lord President of supreme court and five other judges. 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 labeled "Team A". The incumbent received more than one hundred nominations from the UMNO branches for the Presidency of UMNO whereas his challenger Tengku Razaleigh, one of the three vice-Presidents of UMNO was nominated by slightly more than twenty branches of UMNO. The Razaleigh supporter expect him to win, however the result come to shock many and the official result declared that Dr. Mahatir the winner for 761 votes while Razaleigh 718. The candidate represnt team A Ghafar Baba also successfully defeated team B represntative, Musa Hitam.
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. A civil suit was filed in the Kuala Lumpur High Court by eleven members of UMNO (referred to as the UMNO 11) seeking a number of reliefs including a declaration that the whole election of the 1987 office bearers at the UMNO General Assembly was unconstitutional, illegal and therefore null and void and of no effect.
In the case of, Mohamed Noor bin Othman v. Mohamed Yusof Jaafar  2 MLJ 129, also known as the UMNO 11 case. This case touched the very right of Dr. Mahathir to be Prime Minister. The political custom of Malaysia and within UMNO was that whoever is elected President of UMNO will also be Prime Minister. (UMNO is the leading party in the governing Barisan Nasional coalition and who won majority seat in Parliament). The ranks of UMNO were bitterly divided by two factions vying for control of the party and under this division; Dr. Mahathir won the presidency by a very narrow majority. Eleven dissatisfied UMNO members challenged the validity of the election. The court issued a nebulous decision holding that it cannot grant the relief sought because these UMNO members belonged to an unregistered branch of UMNO. The case also gave rise to the conclusion that since there were unregistered branches within UMNO, the party itself had become an unlawful society. The case was appealed to the Supreme Court. In an unprecedented move the appeal was calendared to be heard by the full court of 9 judges on 13 June 1988.
The Prime Minister commenced an investigation of the chief jurist who was abroad for medical treatment by using the reason of an inappropriate letter written by the Lord President of the Supreme Court, Tun Salleh Abbas to the Yang di-Pertuan Agong. On 25 May 1988, the Prime Minister represented to the Agong that the Lord President should be removed from office. A Tribunal was appointed by the Agong and the King also agreed to the suspension of Tun Salleh pending a final report by the Tribunal. When Tun Salleh returned from medical treatment, he was summoned to the Prime Minister s office where he was informed that the Agong had taken exception to his letter and was asked to resign. Tun Salleh refused and left the meeting. After feverish judicial applications for relief from the action of the Tribunal by Tun Salleh, the Supreme Court acting through 5 judges finally granted a limited stay and restrained the Tribunal from proceeding. The new Chief Justice, Tan Sri Abdul Hamid Omar complained to the Agong about the conduct of these 5 judges. The Agong responded by suspending the five judges and also appointed a Tribunal to investigate.
A re-constituted bench set aside the interim order and the Tribunal concluded by recommending the removal of Tun Salleh. The Agong set the effective date of removal for 8 August 1988. On that same day, the appeal of the UMNO 11 was heard and the Court dismissed the case the next day. The second Tribunal investigating the other 5 judges recommended the dismissal of 2, namely Tan Sri Wan Suleiman and Datuk George Seah, and the Agong agreed.
Since the Tun Salleh Abas tribunal, constitutional amendments, and legislation restricting judicial review have further eroded the independence of the Malaysian judiciary and have strengthened the influence of the executive over the judiciary.
At the same time, the government used its two-third majority to amend article 121 of the Constitution. While this article originally provided that the judicial power of the Federation shall be vested in the "High Courts of co-ordinate jurisdiction and status", it now reads that the High Court s "shall have such jurisdiction and powers as may be conferred by or under Federal Law". Tun Salleh Abas felt that this and other amendments made a serious inroad to the doctrine of separation of powers, particularly the independence of the judiciary.
As he considered it to be of equal importance to the jurisdiction of secular and Islamic courts, he wrote a confidential letter to the king and the Conference of Rulers, in which he expressed the judges' concerns about the development in the relationship between the executive and the judiciary, as well as their disappointment with public accusations of the Prime Minister.
Consequently, he was accused of favouring the imposition of Muslim law on all and sundry, of attacking the government, and of abuse of his public office. He was removed from office along with two supportive Supreme Court judges
It should first understand that in federal constitution, Article 125 of the federal constitution deals with the tenure of office and remuneration of judges of the Supreme Court.
125(1) Subject to the provisions of clauses (2) to (5), a judge of the Supreme court shall hold office until he attains the age of sixty-five years or such later time, not being later than six months after he attains the age, as the Yang di-Pertuan Agong may approve.
(2) A judge of the Supreme Court may at any time resign his office by writing under his hand addressed to the Yang di-Pertuan Agong but shall not be removed from office except in accordance with the following provisions of this Article.
(3) 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 ground of misbehaviour or of inability, from infirmity of body or mind or any other cause, properly to 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.
(4) The said tribunal shall consist of not less than five persons who hold or have held office as judge of the Supreme Court or a High Court or, if it appears to the Yang di-Pertuan Agong expedient to make such appointment, persons who hold or have held equivalent office in any part of the Commonwealth, and shall be presided over by the member first in the following order, namely, the Lord President of the Supreme Court. The Chief Justices according to their precedence among themselves, and other members according to the order of their appointment to an office qualifying them for membership (the older coming before the younger of two members with appointments of the same date).
(5) Pending any reference and report under clause (3) the Yang di-Pertuan Agong may on the recommendation of the Prime Minister and, in the case of any other judge after consulting the Lord President, suspend a judge of the Supreme Court from the exercise of his functions.
Clauses (1) to (3) deal with termination of tenure of office. Clause (1) provides for termination on attaining the age of retirement; Clause (2) for termination by resignation of the judge in the prescribed manner; and Clause (3) for termination by removal on the ground of misbehaviour or of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office. Security of tenure of a Supreme Court judge during good behaviour is a constitutional guarantee.
The expression any other cause in Clause (3) must be interpreted in the context to mean and be confined only to the causes which render the judge unable to properly discharge the functions of his office. A direct nexus between the cause and the stated effect must be established to permit removal on this ground.
The specified grounds for removal are in consonance with the established norms of security of tenure of judges to secure the independence of the judiciary in the countries governed by the rule of law. These grounds must be strictly construed.
Trindade F. In the book The removal of Malaysia Judges , he made a detail analysis based on merit observation regarding the merits of the charges against the judges removed in Malaysia Judiciary. Even if it was possible to say that the conduct of Tun Salleh and the other two judges involved errors of protocol, acts of discourtesy or errors of judgment it was certainly not the kind of conduct which justified the initiation of the procedures for removal under Article 125(3) of the Constitution.
This conclusion also implies that the findings of the two Tribunals that were appointed to enquire into that conduct were not justified by the facts and that the behaviour of Tun Salleh and the two Supreme Court judges should never have been regarded as judicial misbehaviour or misconduct which rendered them unfit to hold office.
The allegations against Salleh were made known to him in writing (in respect of which the tribunal held its inquiry), and briefly they are:
First allegation: On the occasion of the conferment of the honorary degree of doctor of letters on him by University Malaya on Aug 1, 1987 in his speech he made several statements criticizing the government which displayed prejudice and bias against the government: and these statements were incompatible with his position as the Lord President of the Supreme Court.
Second allegation: At the launching of the book Malaysia Law and Law, Justice and the Judiciary: Transnational Trend on Jan 12, 1988 in his speech he made several statements discrediting the government and thereby sought to undermine public confidence in the government s administration of this country in accordance with the law.
In the same speech he made special reference to the interpretative role of judges and advocated the acceptance of the Islamic legal system not only in the interpretation of the civil law of Malaysia but in its general application.
In particular he advocated thus: This system consists mostly of the Quran and Hadith (tradition of Prophet Mohammad S.A.W.). The interpretation of these two sources of law is done according to the established and accepted methodology. Volumes of literature have been written as commentaries and exegesis of the Quaranic law the Prophet Mohammad s Hadith or tradition. In this situation, not only is the judiciary bound by Islamic law as propounded by juries consult (muftis, who give legal rulings on particular matters), but as Parliament and the executive too are certainly bound by these rulings.
His attempt to restate the law generally along Islamic legal principles ignores the character of Malaysian society as one which is multi-religious and multi-racial with deep cultural differences. No responsible government can allow the postulation of such views by the head of the judiciary without causing fear and consternation among its non-Muslim population. Furthermore, his statement violates established principles of judicial interpretation widely accepted in the courts in Malaysia and in the Commonwealth.
Third allegation: He adjourned sine die the case of Teoh Eng Huat v Kadhi Pasir Mas, Kelantan and Another (Civil Appeal No 220 of 1986) which involved the issue of a minor s choice of religion. It was adjourned six times in the Supreme Court C Aug 18, 1986, Aug 25, 1986, Dec 1, 1986, July 30, 1987, July 31, 1987 and Aug 3, 1987. It related to the conversion from Buddhism to the Islamic faith.
Fourth allegation: In his said letter dated March 26, 1988 to the King and the Malay rulers, he stated that it was written on behalf of the judges of this country. This is false as there was neither prior consultation with nor approval of all the judges of the country on the content of the letter before he sent it.
Fifth allegation: He, after his suspension as Lord President, made various statements to the media for publication and broadcasting which contained untruths and which were calculated to politicize the issue between the government and him and to further discredit the government.
This charge is based on the speech (Annexure A at page 168-172 of the First Tribunal s report) by Tun Salleh on 1 August 1987 in the University of Malaya, which, it is alleged was critical of the government displaying prejudice and bias against it. The particulars of the speech considered objectionable are quoted in the Tribunal s order. The speech, like any document, is to be read as a whole and interpreted in the context in which it was made. This was an acceptance speech on conferment of a doctorate on Tun Salleh at a University Convocation.
The audience was comprised essentially of young people, many of whom were graduating. It contained advice to the youth. So read, the inference drawn to frame the charge is unacceptable. The emphasis in the speech is on nation building. Two strategies mentioned were: trustworthiness of the new generation or youth; and legal sanction, if need be for achieving trustworthiness. For this purpose, stress was laid on strengthening the machinery of justice. Elaborating this thought, the need for financial autonomy of the judiciary was stressed. In this context, the comparative greater importance of the judiciary vis- -vis some ministries of social service was emphasized. The importance of the courts to uphold the rule of law enabling good governance was also emphasized in this context. In short, the theme of the speech was that the judiciary performs an essential or primary state function and should be given primacy over those performing the secondary or welfare functions in the polity. There was also exhortation to all the public functionaries to work for public interest because the country is governed by the rule of law and justice embodied in the Constitution. It is difficult to find any legitimate ground to criticize this speech, either for its content or for its effect on the audience and this charge was itendable. It is significant that the speech though made on 1 August 1987 was not considered offensive for almost a year till May/June 1988 when the action for removal was initiated. It appears a clear after thought because of the intervening events leading to the judiciary s protest in the letter of 26 March 1988 against the executive s tirade.
The basis of second charge is another speech on 12 January 1988 (Annexure B at pages 173-177 of the First Tribunal s report) by Tun Salleh at a book launch which, it is alleged, discredited the government. The speech ends with the observation that the occasion of the book launch is appropriate, because the book deals with the role of the court and the law in developing societies . There is nothing in it to offend the sentiments of a plural society or against the secular ethos. Even if one has a different view of the role of the court, the view expressed in the speeches consistent with the view in the Commonwealth cannot be termed improper or an act of misbehaviour.
It does appear that the charge nos. 1, 2, 3, and 5 were added only to buttress the main charge no. 4 founded on the letter of 26 March 1988 sent in the prevailing charged atmosphere. Moreover, even the charge no. 4 is untenable for the reasons given. It is indeed incomprehensible how a judicial tribunal could accept these charges as proved.
As indicated, no cogent material was available even to frame a triable charge, and no prima facie case was made out in the proceedings before the Tribunal to require any explanation from Tun Salleh. Repeated emphasis by the Tribunal on the absence of any explanation by Tun Salleh due to his withdrawal from the proceedings on rejection of his objections is misplaced and contrary to law. There being no triable charge, and no prima facie case for Tun Salleh to answer, the First Tribunal should have rejected the charges and closed the removal proceedings without requiring any explanation from the Lord President Tun Salleh. We are constrained to take the view that the end result of the removal proceedings tends to justify the objections raised by Tun Salleh and support the view that his apprehension of not being afforded justice was genuine and based on substantial grounds.
Unsurprisingly, all the High Court Judges who were involved in the UMNO 11 appeal, in the Tun Salleh Abas civil suit and the Interlocutory Order and those in the Second Tribunal set up to deal with the charges against the five Judges of the Supreme Court were eventually elevated to the Supreme Court. Three of them were later appointed Chief Justices of the High Court in Malaya. The three Malaysian High Court Judges in the Second Tribunal who delivered the majority decision recommending the dismissal of Tan Sri Wan Sulaiman and Datuk George Seah were all appointed to the Supreme Court. One of them was subsequently appointed Chief Justice of the Federal Court (the Supreme Court of Malaya was later renamed the Federal Court) and another promoted as President of the Court of Appeal. Even Dato Ajaib Singh, who first heard and refused a temporary stay in the High Court in Kuala Lumpur, was later elevated to the Supreme Court. There is yet another matter that needs to be mentioned. There was even a very serious allegation by the acting Lord President in his representation to the Yang Di-Pertuan Agong that he was informed that the five Judges of the Supreme Court took the Seal from the Supreme Court registry even though the office was closed and the officers had gone home . But the Tribunal held that the acting Lord President was without doubt misinformed about this preposterous matter. It is, however, pertinent to note that no disciplinary action was instituted against the officer who supplied him with this false information. Time for a judicial commission I come to the most important constitutional issue arising from the aftermath of the 1988 Judicial Crisis.
The Second Tribunal enunciated the principles correctly but erred in applying them. It rightly held that proof beyond reasonable doubt is required to establish the allegations made in the representation against the five judges . Contrary to this principle, it held the charges proved even after saying that the other view is not unreasonable and there was no proof of any improper motive, partiality or conspiracy to grant any undue favour. On the Tribunal s own view of the principles applicable and its findings in favour of the judges, the conclusion arrived at against the two judges was inconsistent. Misinterpretation of the meaning of Section 9(1) ibid. was another serious defect to vitiate its report and the recommendation of removal made therein.
In our opinion having regarded the above mentioned points, it was clear enough that the removal of Lord President of Supreme Court and two other judges was unreasonable. It is unconstitutional and non-est. to remove the judges from their office. The interference on judicial system has devalued the public confidence in judiciary as a whole. Judicial Crisis 1988 should not be recurring and reputation of judiciary must be restored. The government should make an acknowledgment regarding to the mistake done in removing these three Supreme Court judges without reasonable justification. In order to restore the confidence of judiciary, some appropriate gesture such as suitable amendment of certain Act.
There are some recommendations that appointment and removal of judges should only be made under one independent body. In United Kingdom, the Queen may might appoint her judges to hold office during her pleasure. Since the Act of Settlement in 1701, the judiciary in England and Wales have held office during good behaviour and those in the High Court and above can only be removed by an address from both Houses of Parliament to the Queen and this ensure the independence.
Secondly, if the Prime Minister or the Lord President after consulting the Prime Minister, represent to the YDPA that a judge of supreme ought to be removed on the ground of misbehaviour or of inability, from infirmity of body or mind or any other cause, to properly discharge from his office, the YDPA shall appoint a tribunal in accordance with clause 4 and refer the representation to it and may on recommendation of the tribunal remove the Judge from office. However, the said tribunal shall comprise of 5 judges from superior court and such recommendation should rest with the judicial commission. It is illogical to suggest that Prime Minister being head of Executive branch in government who has the equal authority to remove the Lord President as head of judicial branch.
Thirdly, power of nomination/ appointment (as the YDPA should act on the advice of Prime Minister and also he has no authority to nominate and only to agree upon or refuse such nomination) of judges should not be vested only to Prime Minister but the power should be vested in judicial commission in which leaded by Lord President and six others senior federal court judges. In commonwealth country, Sri Lanka as the role model which being the first country in which her Prime Minister s power of appointment of higher judiciary was removed. Hence, we should have transfers of power of appointment in contemplation in order to free the judiciary from the control of Executive.
Fourth, in our personal point of view that appointment of the Chairman of judicial commission should neither be nominated nor appointed by the Prime Minister. Hence the chairman meant to be an independent body should be the leader of Opposition leader in Parliament and President of Malaysian Bar Council as his deputy. The view of people of Malaysia should be take into account in which the details of the other members of judicial commission.
In conclusion, the existence of separation of power is crucial to ensure the freedom of the court to make judgments without fear or favour. It is crucial to note that one of the reasons leading to the crises between the executive and judiciary in 1988 was the government's displeasure at calls made by several judges for the review of the Constitution to check the intrusion of the executive in judicial matters. The executive branch not only lack of appreciation toward judiciary but also decided to 'punish' the judiciary. These crises culminated with the removal of the Lord President, Tun Mohd. Salleh Abbas and two other judges by the Yang di-Pertuan Agong who was acting on the advice of a Tribunal.