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 Forum
by Ngeh Koo Ham

(Ipoh, Thursday): 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 districts.

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 Government.

i) The Federal constitution was amended to subjugate the Judiciary.

ii) Laws were amended to restrict judicial reviews of the Executive decisions.

iii) Making the Judiciary an arm of the Executive.

iv) Making the Legislative members subjected to the total control of the Executive.

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 government's) wishes.

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 administration.

After the sacking of Tun Salleh Abas, the Judiciary became an arm of the Executive.

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 critics.

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 months' imprisonment.

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 such threats.

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 Chairman