Tunku Abdul Rahman, a man who respected the rule of law and the
separation of powers between the Executive, the Judiciary & the Legislature
- Assault on these principles in the last 15 years in Malaysia
- Tunku Centennial Remembrance
by Ngeh Koo Ham
Tunku Abdul Rahman completed his Bachelors of Arts in law and history in
1925. After returning home, he joined the Kedah Civil service as a cadet in
the legal Advisor's office and then as a district officer in several Kedah
In 1938 he attempted at completing his law studies at the Inner Temple in
England but failed because of the outbreak of the Second World War. He
resumed his studies eight years later and came home with his legal
qualifications in 1949.
My purpose of raising Tunku's 1st degree in law and history and his pursuit
to obtain his legal qualification which he managed to obtain only 24 years
later after his 1st degree is to show his great admiration for law.
Tunku was a man who respected the rule of law and the democratic system of
separation of powers between the Executive, the Judiciary and the
Legislature. Every lawyer trained under the British system would have been
taught to solemnly respect such separation of powers if democracy were to
work in a country.
There was no record of any accusation whatsoever that the late Tunku ever
interfered in the rule of law or interfered with the Judiciary.
The fair application of laws and the respect for the Judiciary was an
accepted norm during the time of Tunku. There were no accusation of
selective prosecution, amendments of laws to suit the Executive or the
interference with the Judiciary. Because of that the legal system was
greatly respected and our Judiciary held in high esteem.
Rule of law implies that all persons are equal before the law and the law
operates irrespective of persons.
The best way to appreciate the rule of law and the need for separation of
powers is to see what happens when the rule of law and the respect for
separation of powers are not observed. This can be best illustrated by what
happened to our country in the last 15 years.
The Mahathir administration did the following in contravention with the rule
of law and to disregard the separation of powers of the 3 organs of the
i) The Federal constitution was amended to subjugate the Judiciary.
ii) Laws were amended to restrict judicial reviews of the Executive
iii) Making the Judiciary an arm of the Executive.
iv) Making the Legislative members subjected to the total control of the
v) The discretionary powers of the Attorney General's office were used by
the Executive for selective prosecution.
Until 1988, the Malaysian Federal Constitution provided for the separation
of powers within the Government. Increasing tension between the judiciary
and the government culminated in 1988 in the suspension of six (6) Supreme
Court judges and the subsequent removal of three (3) of them including Tun
Salleh Abas, the President of the then Supreme Court. The dispute arose out
of a series of decisions of the higher courts unfavourable to the government
(including a case where UMNO was being declared illegal).
The assault on the judiciary by the Mahathir administration began in 1986.
The Asian Wall Street Journal or Berthelsen case (J.P. Berthelsen v Director
General of Immigration Malaysia & Ors (1987) MLJ 134 was followed by strong
and continuing attack on the judiciary by the Prime Minister (Dato' Seri Dr
Mahathir Bin Mohammad) coupled with threats that the government would ensure
that the judiciary would comply in one way or another with its (the
After the UMNO 11 case where UMNO was declared illegal, the Government
amended Article 121 of the Federal Constitution to subject the Judiciary to
the Legislature and also amended the Internal Security Act 1960, the
Printing Presses and Publication Act 1984 and the Dangerous Drugs (Special
Preventive Measures) Act 1985 to severely restrict the power of judicial
review of the courts.
Before the Constitutional amendment in 1988, the judicial power of the
Malaysia was vested with the Courts but after the amendment the courts shall
have jurisdiction and powers as may be conferred by or under Federal Law.
The equal standing of the Judiciary is now subjugated to the Legislature.
The Legislature in turn is now controlled by the Executive in Malaysia. The
BN MPs in Parliament are now trembling in fear of the Executive. The
'indefinite suspension' of the Assemblyman and Assemblywoman, Y.B.Lim Boon
Chang and Y.B.Tan Cheng Liang as MCA members because they abstained from
voting against the DAP's motion in the Penang State Assembly to defer the
Penang Outer Ring Road (PORR) project sent a very clear message that not a
slightest dissent from the BN MPs will be tolerated by the Mahathir
After the sacking of Tun Salleh Abas, the Judiciary became an arm of the
The consequence was grave. Confidence in the Judiciary was eroded badly as
the Judiciary is seen as no longer independent. The Bar responded in
boycotting the new head of the Judiciary. New appointments to the Judiciary
no longer come from the outstanding members of the Bar. These outstanding
members of the Bar also do not desire to be appointed to a Judiciary that is
no longer independent. The new judges appointed cannot be said to be the
cream of the Bar. Consequently the standard of the Judiciary declined. Some
questionable judgments were made. There were accusations of corrupt
practices among some judges. The Judiciary that was cordial to the Bar is
now quick to invoke 'contempt court' against members of the Bar to silence
The following are some illustrations.
When Tun Salleh Abas was suspended, an Acting Lord President, Tan Sri (now
Tun) Abdul Hamid was appointed as Acting Lord President of the Supreme
Court. The Bar Council was unhappy with the events and applied for leave to
commit the Acting Lord President to prison. Manjit Singh Dhillon, the
secretary of the Bar Council who signed the affidavit in support was instead
cited for contempt of court and sentence with RM5,000-00 and in default 3
months imprisonment (Attorney General Malaysia v Manjit Singh Dhillon (1991)
1 MLJ 167.
Mr Tommy Thomas, the then secretary of the Bar Council made critical
comments of a number of cases in an article entitled 'Malaysia Justice on
Trial' in a legal journal called 'The International Commercial Litigation'.
In the subsequent events, he was found guilty of contempt of court and
sentenced to 6 months' imprisonment (MBf Capital Bhd & Anor v Tommy Thomas &
Anor (1999) 1 MLJ 139). In the same case, a partner of Skrine, the 2nd
Defendant in the case applied for the Judge to be disqualified on the ground
that he had pre-judged the 'most pivotal issue' affecting the 2nd Defendant.
His application was dismissed. The 2nd Defendant appealed. At the appeal,
the judges of the Court of Appeal took the view that if the application was
not immediately withdrawn, notices for contempt would follow. The Appellant
had no choice but to withdraw the appeal.
Mr Zainur Zakaria, one of the lawyers in Anwar Ibrahim's case was found to
have committed contempt of court when he on behalf of Anwar Ibrahim applied
to have 2 of the prosecutors excluded from the case on the ground that they
had attempted to fabricate evidence against him and he sentenced to 3
Mr Karpal Singh, also a counsel in Anwar Ibrahim's case was charged under
Section 4(1)(b) of the Sedition Act 1948 in respect of statements he made in
court. The statements were 'It could be well that someone out there wants to
get rid of him ………. even to the extent of murder' and 'I suspect that people
in high places are responsible for the situation'.
The lawyers can no longer act in the best interest of their clients with
The Executive uses the Attorney General's office for selective prosecution.
Lim Guan Eng's case was a classic example. He carried out his duty as a
conscientious Member of Parliament to assist an old grandmother whose grand
daughter was allegedly raped by the former Chief Minister of Malacca. He was
instead charged, found guilty and imprisoned.
Parti Keadilan Nasional's Youth Chief, Mohamad Ezam Bin Mohamad Noor was
another example. He disclosed that the Attorney General's office has
concluded that there were a prima facie case of corruption against the
Minister of International Trade & Industry, Dato' Seri Rafidah Aziz and the
former Chief Minister of Malacca, Tan Sri Rahim Thamby Chik. Instead of
charges of corruptions being brought against Dato' Seri Rafidah Aziz and Tan
Sri Rahim Thamby Chik, he was charged and found guilty of having committed
an offence under the Official Secrets Act.
Many reports of offences committed like in Perwaja Steel case but no
prosecution has been commenced though so many years have passed.
Conclusion: Judicial Powers have been curtailed. The Judiciary is now under
the Legislature. The Legislature in turn is now under the control of the
Executive. This is the sad state we are in.
As we remember Tunku let us endeavour to restore the rule of law and restore
the 3 bodies of the Government to their proper places i.e that there must be
separation of powers and no one body can subjugate another.
* Ngeh Koo Ham, DAP Perak