Chapter 3 of What the Judiciary Was and What It Has Become 

[A record of the Malaysian Judiciary, before 1988 to now]

In 1987 the Malaysian courts stopped being convenient.

They did not become brave, exactly. They simply kept doing the ordinary work of courts, in a year when the ordinary work of courts had begun to hurt.

Chapter 2 left a party dissolved and an appeal waiting. This chapter is about the fourteen months before that appeal was heard, and about how a quiet institution acquired a reputation for talking back.

The section that took cases away

Start with a piece of criminal procedure. It sounds dull. It is not.

Section 418A of the Criminal Procedure Code allowed the Public Prosecutor to lift a criminal case out of a lower court and move it to the High Court. He did it by certificate. He needed nobody’s permission. No court could ask him why.

On 15 May 1987 the Supreme Court held that section unconstitutional.¹Public Prosecutor v Dato Yap Peng [1987] 2 MLJ 311 (SC). Judgment date verified on Lexis Advance as 15 May 1987; the PEP Report gives 11 May at para 2.7. Panel of Eminent Persons, Report of the Panel of Eminent Persons to Review the 1988 Judicial Crisis in Malaysia (Malaysian Bar Council, International Bar Association, LAWASIA and Transparency International–Malaysia, 26 July 2008) (‘PEP Report’).

The reason lay in one line of the Constitution. Article 121(1) then vested “the judicial power of the Federation” in the courts. Deciding which court tries a case is part of deciding cases. Parliament had handed that decision to a prosecutor. The majority held that this reached into work the Constitution had given to judges.

Remember that phrase — the judicial power of the Federation. In a year’s time it will be gone from the Constitution altogether. Chapter 8 is about the morning it was deleted.

Five judges sat on Yap Peng. Two of them dissented.

One of the two was the Lord President, Tun Salleh Abas — the head of the judiciary, holding the office now called Chief Justice.

He dissented in the Government’s favour.

That is worth pausing over. The case most often named as the one that turned the executive against the judiciary is a case in which the head of the judiciary voted for the executive. The 2008 Panel that reviewed the crisis made the same point: it “negatives the allegation made against him … of anti-government bias.”²PEP Report (n 1) para 2.7.

Look at who else sat. Mohamed Azmi and Eusoffe Abdoolcader would both be suspended in 1988. Salleh Abas would be removed. And Hashim Yeop A Sani, the other dissenter, would be appointed to head the tribunal that tried his colleagues.³PEP Report (n 1) paras 2.70 and 2.76–2.79.

Five judges in a room in May 1987. Within sixteen months, four of them were inside the story.

A highway, and who is allowed to complain

The second collision was about a road.

The Government issued a letter of intent to United Engineers (M) Bhd for the North–South Highway. Lim Kit Siang, the leader of the opposition, went to the Penang High Court on 18 August 1987. He wanted the contract declared invalid, and an injunction — a court order forbidding something — to stop it being signed.⁴Government of Malaysia v Lim Kit Siang; United Engineers (M) Bhd v Lim Kit Siang [1988] 2 MLJ 12 (SC), summary of facts. Verified on Lexis Advance, 8 August 2026. The case is often cited the other way round, as Lim Kit Siang v UEM; the reported title puts the Government first.

The judge refused him that day. That judge was Edgar Joseph Jr.⁵Lim Kit Siang v United Engineers (M) Bhd [1988] 1 MLJ 35 (HC); PEP Report (n 1) para 2.10. Keep the name.

A week later the Supreme Court granted the injunction anyway.⁶PEP Report (n 1) para 2.11, citing Supreme Court Civil Appeal No 363 of 1987, 25 August 1987, briefly reported at [1987] 2 CLJ 195. The quorum was Lee Hun Hoe CJ (Borneo), Wan Suleiman and Wan Hamzah SCJJ. Three judges did that. One would later sit on the tribunal that removed the Lord President. Two would be suspended in 1988

The fight then turned on a dry question: locus standi. It means whether a particular person is entitled to bring a particular case at all. Not whether he is right. Whether he may ask.

On 16 March 1988 five Supreme Court judges answered it. By three to two, they held that Lim Kit Siang had no standing. The suit could not go on.⁷Government of Malaysia v Lim Kit Siang (n 4).

Tun Salleh was in the majority. Again, with the Government.⁸PEP Report (n 1) para 2.13.

The two dissenters were George Seah and Eusoffe Abdoolcader. Both would be suspended within four months and put before a tribunal.

And Edgar Joseph Jr, who had refused the injunction at the start of it all, would chair that tribunal.⁹PEP Report (n 1) paras 2.10 and 2.79.

Malaysia is a small country. Its senior bench in 1987 was smaller still. Nobody in this story gets to stay a spectator.

Judges begin to speak

Until 1987 Malaysian judges did not make speeches about the Constitution. In 1987 they began to.

On 5 September Harun Hashim J spoke at a law seminar at Universiti Kebangsaan Malaysia. He called for improvements to the Federal Constitution.

The reply came at once. The Prime Minister was reported as saying that certain judges were encroaching on other branches of government and should stay out of politics. He called on the Lord President to admonish them.¹⁰PEP Report (n 1) para 2.14, citing The Star and the New Straits Times.

Three weeks later, on 30 September, a book was launched at the University of Malaya. The speaker was the Sultan of Perak. Before he came to the throne he had been Lord President himself — Tun Salleh’s immediate predecessor.

He defended the right of judges to comment on the law and the Constitution outside the courtroom.¹¹PEP Report (n 1) para 2.15.

On 2 October the Prime Minister spoke in Kota Bharu. He likened the judiciary to another branch of government service, like the Army or the Civil Service.¹²PEP Report (n 1) para 2.16.

That is not a small remark. The Army serves the Government. So does the Civil Service. A court does not. It decides between the citizen and the Government, and cannot do that if it works for one of them.

The silence of the Lord President

Here is the part almost nobody mentions.

Through all of this, Tun Salleh Abas said nothing.

Twice the New Straits Times asked him to comment — once after the row over Harun Hashim J’s speech, once after the highway ruling in October. Twice he declined. The best thing to do, he said, was to keep quiet and let the matter rest.¹³PEP Report (n 1) paras 2.14 and 2.17.

Eight months later he was suspended. Two of the five charges against him were speeches.¹⁴PEP Report (n 1) para 2.34, listing the allegations in Annexure A to the Prime Minister’s letter of 25 May 1988: the speech of 1 August 1987, the speech of 12 January 1988, the adjournment of Teoh Eng Huat v Kadhi Pasir Mas, and the letter of 26 March 1988.

The head of the judiciary spent 1987 publicly refusing to criticise the Government. He was removed in 1988 for talking too much.

October, and the arrests

On 27 October 1987 the police carried out Operation Lalang.

More than a hundred people were detained without trial under the Internal Security Act 1960 — a law that allowed the Government to hold a person indefinitely, without charge, without a court.

Four publications lost their permits to print: The Star, the Sunday Star, Sin Chew Jit Poh and Watan. They were allowed back the following March.¹⁵Standard secondary accounts, including the entry ‘Operation Lalang’ on Wikipedia accessed 8 August 2026, give the operation as running from 27 October 1987 and the detainee figure as between 106 and 119, with permits restored on 22 March 1988. No primary Government record of the numbers has been located for this series and the figure is given as reported, not as established.

Among those detained was Karpal Singh, an opposition Member of Parliament.

He applied for habeas corpus — an ancient order requiring anyone holding a prisoner to bring him to court and justify it. On 9 March 1988 Peh Swee Chin J granted it and ordered him released at once.¹⁶PEP Report (n 1) para 2.22, citing Karpal Singh v Ministry of Home Affairs [1988] 1 CLJ 197. The citation is taken from the Report and has not been independently verified for this series.

Another decision against the Government. That made rather a lot of them in a short time.

A Bill, and a puzzle in the record

In December 1987 Parliament took up the Printing Presses and Publications (Amendment) Bill.

It did two things worth reading twice. It said that no person was to be given an opportunity to be heard about the grant, revocation or suspension of a publishing permit. And it said that the Minister’s decision was final “and shall not be called in question by any court on any ground whatsoever.”¹⁷PEP Report (n 1) para 2.18, quoting the Bill; second reading given there as 3 December 1987.

The first of those cancels the principle the Supreme Court had rescued for John Berthelsen in Chapter 1. The second tells the courts to stay out.

The 2008 Report says the Bill was an immediate response to a decision of Harun Hashim J, holding that a Minister’s refusal of a publishing licence could be reviewed by a court.¹⁸PEP Report (n 1) para 2.19.

That decision is Persatuan Aliran Kesedaran Negara v Minister of Home Affairs. Its date, verified against the law report, is 19 December 1987.¹⁹Persatuan Aliran Kesedaran Negara v Minister of Home Affairs [1988] 1 MLJ 440, Harun J, judgment 19 December 1987. Verified on Lexis Advance, 8 August 2026.

The Bill was read a second time on 3 December. The judgment came sixteen days later.

So the chronology in the standard account does not work. Either a date has slipped, or the Bill was answering a case that had not yet been decided. This series has not been able to settle which. It records the difficulty rather than tidying it away.

18 March 1988

The last event before this story turns is a speech.

On 18 March 1988 the Prime Minister rose in Parliament to present a Bill amending the Federal Constitution. He said this:

“… to achieve a balance the country needed a civil service and Judiciary which did not involve itself in politics … But unfortunately lately we find incidents where some members of the Judiciary have shown that in order to be seen as ‘fiercely independent’, these members are indirectly involved with ‘opposition politics’. And to display that their independence is really ‘fierce’ they often bend over backwards to award decisions in favour of those challenging the Government.”²⁰Reported in the New Straits Times, 18 March 1988, quoted in PEP Report (n 1) para 2.23.

The judges he was describing had, in the two cases that mattered most to him, decided in his favour.

Eight days later the Lord President wrote a letter.

Next: Chapter 4 — The letter that lit the fuse.

Further reading. The Report of the Panel of Eminent Persons to Review the 1988 Judicial Crisis in Malaysia (2008) is published in full, free, by the Malaysian Bar.

 

∞§∞

This article is written for a general readership and does not constitute technical or legal advice. Readers with legal questions are encouraged to seek independent legal advice.

The author thanks KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi at GK Legal. Our gratitude to Gemini for the Ai generated image.

Claude, Anthropic’s AI, smoothed the drafting; Perplexity Pro checked the facts. The argument, the views, and the errors remain the author’s.

@Copyright reserved.

All content on this site, including but not limited to text, compilation, graphics, documents, and layouts, is the intellectual property of GK Ganesan Kasinathan and is protected by local and international copyright laws. Any use shall be invalid unless written permission is obtained by writing to gk@gkganesan.com.”