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Battle of 1988: The skeletons in Mahathir’s cupboard

Updated On: Sep 19, 2006

The latest knock to Mahathir comes from a call to open investigation into a scandalous episode in Malaysia’s history which may reveal the former prime minister’s role in decimating a formerly respected and independent-minded judiciary.

Hidden from public view for the past 18 years, the “1988 scandal” – as it is still referred to in hushed tones in Malaysia – is finally unravelling as lawyers, judges and rights activists press for an independent inquiry into the episode.

In 1988, the country's top judge, Lord President Salleh Abas, and five other senior judges were sacked and suspended after a series of politically sensitive cases that went against the government.  The crisis was sparked after judges overturned a government decision to expel two Asian Wall Street Journal reporters for writing a series of articles on questionable government transactions.  Furious, then-Prime Minister Mahathir Mohamad began verbally attacking the judges as decisions in other politically sensitive cases went against his autocratic government.  In an effort to protect the judiciary from the attacks, Abas wrote to the king, a constitutional figurehead, complaining that the prime minister was browbeating the judges, leading an enraged Mahathir to set up a tribunal of mostly pliant judges who found Abas and two other judges guilty of alleged misconduct.  Later, three more senior judges, who had ruled that the tribunal was unconstitutional, were also dismissed.  That same year, Mahathir's government tabled a bill in parliament amending the constitution to divest the courts of their "judicial power of the federation" and giving them only powers as parliament granted them.  The changes made the judiciary subservient to a parliament already dominated by the executive, causing major damage to the Malaysian judiciary and undermining a key institutional check on Mahathir’s government.

The issue of a probe into the 1988 affair was first raised by a retired judge in a newspaper interview.  The Malaysian Bar Council, which represents around 12,000 lawyers, then took up the issue, urging Prime Minister Abdullah Ahmad Badawi to investigate the affair, rehabilitate the victims and punish the offenders.  The Malaysian Bar sees the removal of Abas and his two fellow judges under the Mahathir government as the root of the judiciary's credibility problem.

Abas himself finally spoke out last month, lending his voice to the calls for an investigation into what is widely considered the country's worst ever judicial scandal.  Abas said that if Malaysia is to be governed democratically, legislation introduced in 1988 should be repealed and the power of judicial review of government decisions restored. 

While crediting Prime Minister Abdullah Ahmad Badawi's current open-style leadership for his decision, Abas denied that his decision to speak out had anything to do with the current Abdullah-Mahathir spat.  Others are more obvious in milking the Abdullah-Mahathir spat to agitate for change.  In a statement in support of the Bar Council's call to reinvestigate the 1988 judiciary crisis, Chairman of the Civil Rights Committee of the Kuala Lumpur and Selangor Chinese Assembly Hall, Ser Choon Ing said that while Abdullah has pledged to listen to the truth and implement reforms, he has failed to right the wrongs in the past and dismantle repressive mechanisms and structures.  "The on-going power struggle between the former strongman Tun Dr Mahathir Mohamad and the present administration has given a new breath for the society's demand for just institutions," Ser said.

Mahathir, on the other hand, has denied accusations of meddling in the judiciary while in power, saying that during his tenure he had no influence over the courts.  Political analysts say an inquiry into the affair will open a can of worms and Mahathir’s image is likely to take a massive knock as people will be shocked at the extent to which the judiciary can and was manipulated by politicians.  A political analyst, who requested anonymity, said: "A probe would confirm that Dr Mahathir had no respect for a check-and-balance system and that he did not see the point in having a dignified judiciary. The will of Dr Mahathir was too strong to challenge until now."

Some political analysts believe the old scandal is coming to light in an attempt to silence Mahathir's public criticisms of Abdullah's government.  Ironically, as many speculate, it was the fear of the unravelling of old deals, arrangements and his legacy as Malaysia’s ‘Father of Modernisation’ that led Mahathir to go on the war-path in the first place.

While parliament on Thursday (14 September) rejected the emergency motion tabled by Keadilan MP and wife of former deputy premier Anwar Ibrahim, Wan Azizah Wan Ismail calling for the formation of a Royal Commission to investigate the 1988 judicial crisis, the 1988 saga is unlikely to end here.  True to warnings from top Umno leaders that the Abdullah-Mahathir spat will give the opposition leverage, the political opposition is taking up the judiciary issue with a vengeance.  Opposition leader Lim Kit Siang said an inquiry is the strongest step Abdullah can take to demonstrate his commitment to reforms.  Adding to the pressure, Abdullah is currently facing open criticism from some Umno members for the slow pace of his reforms in the nearly three years he has been in power.

Malaysia's judiciary seemed to have restored its tarnished reputation two years ago when the government's main political enemy, Anwar Ibrahim’s shock release from jail raised hopes the courts had finally dispelled doubts about their independence.  Nazri Abdul Aziz, minister in the premier's department who handles law issues, pushed this view.  He agreed that judicial credibility suffered under the Mahathir administration, but said it had been restored under Abdullah.  Calling Anwar's release a courageous ruling, he added that there was no need for an inquiry in 1988.  "It seems now that under the administration of Abdullah, he has created an atmosphere and a good climate for judges to feel free to make their decisions, and they have not been told to judge any particular way and I think they are sensing that," Nazri said.

Many lawyers however, say the jury is still out.  "It's too early to tell," said Yeo Yang Poh, president of the Malaysian Bar Council.  Yeo said Anwar’s freedom has not entirely lifted doubts over judicial independence, adding only real reform could do that, starting with a new way of appointing judges.

Sources:

The skeletons in Mahathir's cupboard (Inter Press Service, 16 September 2006)

'I do it my way' – M'sian PM defends performance (AFP, 18 September 2006)

Jury still out on Malaysia's judiciary (Reuters, 12 September 2006)

NGO: Probe 1988 judiciary crisis and Op Lalang (Sun, 17 September 2006)

Emergency resolution on judiciary fails (Sun, 14 September 2006)