Chapter 10 of What the Judiciary Was and What It Has Become 

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

Every year the judges and lawyers of Malaysia played the lawyers of Singapore at games. Cricket, golf, football, bowls. It was called the Bench and Bar Games. It had run for nineteen years.

In 1988 it was cancelled.

The reason was small, and it was enormous. The Malaysian side was always led onto the field by the Lord President. That was the old title for the head of the judiciary, before it became Chief Justice in 1994. And that July the Bar had resolved to bring contempt proceedings against the man holding the office.

It could not now walk out behind him.

So the games went ahead without the judges. They were renamed the Malaysia/Singapore Law Games. Lawyers only.

The judges came back onto the field from 16 to 20 October 1997.¹Malaysian Bar, Torchbearers: The Bar’s Passage of Justice (1947 to 2021) (Malaysian Bar, March 2021) 33 (cancellation and renaming) and 43 (“The Malaysia/Singapore Law Games series was restored to its former status as the Malaysia/Singapore Bench and Bar Games”, 16 to 20 October 1997). The resolution of 9 July 1988 to institute contempt proceedings against the Acting Lord President is at 20 and 34.

Nine years. So far as this series can find, nobody has counted them.

Chapter 9 left the judiciary in silence. This chapter is about how long that silence lasted, and what it took to end it. The answer is twenty years. And it was not the judges who ended it.

The years in between

On 24 June 1994 the office of Lord President was abolished. The Supreme Court became the Federal Court again. Its head became the Chief Justice.²Federal Constitution (Reprint as at 15 October 2020, Attorney General’s Chambers of Malaysia), Notes to art 38, note 3: the words “Federal” and “Chief Justice of the Federal Court” were substituted for “Supreme” and “Lord President of the Supreme Court” by the Constitution (Amendment) Act 1994, Act A885, s 3, in force from 24 June 1994.

Same court. Same building. New names for both.

Tan Sri Mohd Eusoff Chin took the new title in September 1994. Chapter 7 recorded where he had stood six years before. He was fourteenth in seniority among the twenty-six High Court judges of Malaya. He had sat on the tribunal that tried five men senior to him.

His tenure ran to December 2000. It drew controversy throughout.³‘Eusoff’s tenure as chief justice drew controversy and scrutiny’ The Star (Kuala Lumpur, 7 August 2026). He died on 7 August 2026. This series has not examined the law reports of Insas Bhd v Ayer Molek Rubber Co Bhd (1995), and makes no statement about what those judgments held.

Then there were the photographs.

Around 2000 it emerged that the Chief Justice had been on holiday in New Zealand. He had been there with a senior lawyer, V K Lingam. Photographs of the two families together were published.

The Chief Justice said he had bumped into the lawyer there.⁴The Star (n 2), recording the allegation and his answer; Malaysian Bar, ‘Eusoff: Ties with VK not “extremely” close’ (Malaysian Bar, archived news). The date the photographs first surfaced, and the newspaper that first published them, have not been established by this series.

The Bench and Bar Games came back in the middle of all this, in 1997.

That is worth sitting with. The two sides of the courtroom mended long before the institution did. Men can play cricket together again while the thing they serve is still broken.

A video clip

On 19 September 2007 a video clip was made public. It appeared to show a lawyer on the telephone. He was discussing which judges should be promoted, and to whom.

A week later the lawyers of Malaysia walked. They walked through Putrajaya on 26 September and called it the Walk for Justice. The President of the Malaysian Bar, Datuk Ambiga Sreenevasan, walked at the front.⁵Torchbearers (n 1) 59, 61 and 63, giving the timeline of Ambiga Sreenevasan’s presidency (2007–2009), the Walk for Justice of 26 September 2007, the extraordinary general meeting of 22 November 2007 calling for a Royal Commission, and the commencement of the Commission on 14 January 2008.

On 22 November the Bar met and demanded a Royal Commission of Inquiry. A Royal Commission is a panel appointed by the King, on the Government’s advice, to investigate a matter of public importance. It cannot punish anybody. It reports.

The Commission began on 14 January 2008, chaired by a former Chief Judge, Tan Sri Haidar Mohamed Noor. It reported in May. It found that several people had seriously undermined the independence and integrity of the judiciary.

In October 2009 the Government told Parliament that the Attorney General would take no further action. Nobody was prosecuted.⁶The Commission’s membership, its findings and the 2009 decision not to prosecute are taken from secondary accounts, principally ‘Damning conclusions from Lingam video findings’ (Malaysian Bar) and ‘Why no action in Lingam case?’ The Nut Graph. This series has not read the Commission’s own report, and states none of its findings against any named individual.

Something else had already begun, quietly. On 21 and 22 September 2007 — five days before the Walk — six eminent persons met for the first time. The Bar Council had convened them, with three international bodies, to review 1988.⁷Torchbearers (n 1) 59–60.

Every chapter of this series has leaned on what they produced.

They presented it on 26 July 2008. The removals of Tun Salleh Abas, Tan Sri Wan Suleiman and Datuk George Seah were unconstitutional and non est. That is Latin for a thing that never happened in law at all.

They made five recommendations. The first was that the wrong done to the three judges “should be undone, as best and as early as possible.”⁸Panel 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) paras 22.1, 23.2 and 24.2, recommendation 1. Signed by Justice J S Verma (Chairman), Justice Fakhruddin G Ebrahim, Dr Asma Jahangir, Tan Sri Dato’ Dr Abdul Aziz bin Abdul Rahman, Dr Gordon Hughes and Dato’ W S W (Bill) Davidson. Launched publicly on 29 August 2008: Torchbearers (n 1) 60.

The Government had moved three months earlier, at a dinner.

The dinner

On the evening of 17 April 2008 the Bar Council held a dinner in Kuala Lumpur. The Prime Minister, Datuk Seri Abdullah Ahmad Badawi, was the speaker. Tun Salleh Abas was in the room. So were Tan Sri Azmi Kamaruddin and Datuk George Seah, and the families of the two judges who had died.

He announced two things. A commission would vet candidates for the bench. And there would be money.

His words about the six were carefully chosen.

“Therefore, the government would like to recognise the contributions of these six judges to the nation, their commitment towards upholding justice and to acknowledge the pain and loss they have endured.”

“Gentlemen, I do not presume to equate your contributions, pain and loss with mere currency, but I hope that you could accept this as a heartfelt and sincere gesture to mend what has been.”

He called them towering judicial personalities. He said their judiciary had once been hailed as a model for other countries. He also said this:

“I do not think it wise or helpful to revisit past decisions as it would only serve to prolong the sense of crisis — something our nation can do without.”⁹‘Redemption: Ghost of 1988 put to rest’ New Straits Times (18 April 2008), reproduced by permission on the Malaysian Bar website, reporting the dinner of the previous evening. All quotations in this section are from that report.

Nobody apologised.

The Bar’s President was asked about it that night. An apology was for the judges to want or not want, she said. “For us, it is not a legal issue. We wanted a recognition that something wrong happened in 1988. To me, that is enough.”

The Minister charged with reforming the judiciary spoke after the Prime Minister. Datuk Zaid Ibrahim said the film that had moved him most as a young man was Love Story.

“It is where I felt, for the first time, that love meant never having to say you’re sorry.”

“But we love you Tun, and make amends we will.”

The money

The amount was not announced that night. The judges had asked the Prime Minister not to disclose it.

It came out in Parliament seven months later. It came out only because Members of Parliament refused to let it go. On 6 November 2008 the Minister in the Prime Minister’s Department gave the figure. Datuk Seri Nazri Aziz was winding up the Budget debate. Ten and a half million ringgit, divided among six men.

“The MPs were not happy and came out with strong arguments,” he said afterwards. “We had to reveal the figures.” He would not say how the sums had been worked out. “The payments are not about closure but about moving on.”¹⁰‘RM10.5 million for six former judges’ New Straits Times (7 November 2008), by V Vasudevan and Eileen Ng, reproduced by permission on the Malaysian Bar website. A note on the breakdown. The account widely repeated elsewhere gives Tan Sri Wan Suleiman RM2 million and Tan Sri Azmi Kamaruddin RM500,000. The New Straits Times report on the Bar’s own site reverses the two: Tun Salleh Abas RM5 million; “Tan Sri Azmi Kamaruddin and Datuk George Edward Seah each received RM2 million”; Tan Sri Wan Hamzah and the families of the late Tan Sri Eusoffe Abdoolcader and the late Tan Sri Wan Suleiman Pawanteh RM500,000 each. Both versions total RM10.5 million. This series has not resolved which is correct, and no Hansard record has been read. The monthly pensions in the same report are: Salleh RM5,102.16; Seah RM5,916.09; Wan Hamzah RM6,548.59; Azmi RM5,916.90; Eusoffe RM4,815; Wan Suleiman RM4,815.

Then an opposition Member asked the question that undid the official story of 1988.

If these men were sacked, why had they been drawing pensions?

Because, the Minister answered, they were not sacked. They were asked to retire early. And so their pensions continued.

Read that slowly. Twenty years on, the Government’s position in Parliament was that nobody had been dismissed at all.

Yet the six had been drawing their pensions since the day they left the bench. For two of them that day came after a tribunal recommended removal and the King acted on it. The money had gone out every month, quietly, for twenty years.

The public record said the men had been put out of office. The payroll said otherwise.

The sentence goes back in

The lawyers got their commission. The Judicial Appointments Commission Bill passed the lower house on 17 December 2008.¹¹Torchbearers (n 1) 60. It vets candidates and recommends names. The Prime Minister still chooses. Abdullah had said so at the dinner: the prerogative to put names to the King “will remain.”

The courts had their own repair to attempt.

In October 2007 the Federal Court had confirmed the damage. In Kok Wah Kuan, Tan Sri Abdul Hamid Mohamad said what the 1988 amendment had done, and did not soften it.

“After the amendment, there is no longer a specific provision declaring that the judicial power of the Federation shall be vested in the two High Courts … That is the difference and that is the effect of the amendment.”

One judge wrote separately. Datuk Richard Malanjum was then Chief Judge of Sabah and Sarawak. He would not accept that the courts had become “servile agents of a federal Act of Parliament.” Separation of powers and judicial independence, he said, remained basic features of the Constitution.¹²Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1 (FC), 23 October 2007, paras [11] (Abdul Hamid Mohamad PCA) and [38] (Richard Malanjum CJ (Sabah and Sarawak)). Coram: Ahmad Fairuz CJ, Abdul Hamid Mohamad PCA, Alauddin Mohd Sheriff CJ (Malaya), Richard Malanjum CJ (Sabah and Sarawak), Zaki Tun Azmi FCJ. Citation, court and date were verified on Lexis Advance in an earlier rotation. The judgment text used here is the copy posted on Abdul Hamid Mohamad’s own website and has not been checked against the bound report.

Ten years later the minority view became the law.

Semenyih Jaya was decided on 20 April 2017. Datuk Zainun Ali delivered the judgment. She went back to 1988 and named it.

“The words ‘judicial power’ do not form part of the provision of art 121(1) of the Federal Constitution. The words were in fact deleted from the text of art 121(1) by the Constitution (Amendment) Act 1988 (Act A704) effectively on 10 June 1988.”

The amendment had struck at two features of the Constitution. One was the separation of powers. The other was the independence of the courts.¹³Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561 (FC), 20 April 2017, paras [62] and [74]–[75]; judgment delivered by Zainun Ali FCJ. Section 40D of the Land Acquisition Act 1960 was held unconstitutional. Citation verified on Lexis Advance in an earlier rotation; the judgment text was read from a copy of the report posted online, not from the bound volume.

Nine months later, in Indira Gandhi, the same judge went further. Judicial power was an essential feature of the basic structure of the Constitution. Parliament could not amend it away.¹⁴Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2018] 1 MLJ 545 (FC), 29 January 2018; judgment delivered by Zainun Ali FCJ. Coram: Zulkefli Ahmad Makinudin PCA, Richard Malanjum CJ (Sabah and Sarawak), Zainun Ali, Abu Samah Nordin and Ramly Ali FCJJ, per the Federal Court’s own press summary of 29 January 2018. Citation verified on Lexis Advance in an earlier rotation. Paragraph pinpoints have not been confirmed against the report, and nothing is quoted here.

The basic structure doctrine holds that a Parliament may amend a constitution. It may not destroy the few things that make it that constitution. Chapter 8 described how India adopted it in 1973, and how Malaysia declined to in 1979.

In 2017 and 2018 two benches put the sentence back in. No word of the Constitution had changed.

Three years later a third bench took it out again.

Maria Chin Abdullah was decided on 8 January 2021. A woman had been stopped at the airport and prevented from leaving the country. The law allowed the courts to ask only whether the correct procedure had been followed. Seven judges sat. They divided four to three.

The majority upheld the law. Article 121(1), they held, “could not be suborned to any doctrine of law, including the Indian doctrine of basic structure.”

The three in the minority included the Chief Justice of Malaysia.¹⁵Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor, Federal Court, Civil Appeal No 01(f)-5-03/2019(W), 8 January 2021. Quotation from the majority judgment of Abdul Rahman Sebli FCJ at para [26]. Coram: Tengku Maimun Tuan Mat CJ, Rohana Yusuf PCA, Nallini Pathmanathan, Abdul Rahman Sebli, Hasnah Hashim, Mary Lim Thiam Suan and Harmindar Singh Dhaliwal FCJJ. The majority comprised Abdul Rahman Sebli FCJ, Rohana Yusuf PCA, Hasnah Hashim and Mary Lim Thiam Suan FCJJ; Tengku Maimun Tuan Mat CJ, Nallini Pathmanathan and Harmindar Singh Dhaliwal FCJJ were in the minority. The Malayan Law Journal citation is given in two secondary indexes as [2021] 1 MLJ 750. It has NOT been verified on Lexis Advance and is therefore not stated here as settled. The report is also carried at [2021] 3 MLRA 1.

What a rebuilding looks like

Count what was actually rebuilt.

A commission that recommends, and a Prime Minister who still decides. A payment made with no admission that anything was owed. A finding, by six people with no power at all, that three removals never lawfully happened. A sentence put back into the Constitution by judges, and taken out again by judges, within four years.

And nine years to get the two sides of a courtroom onto the same cricket field.

In 1988 it took an Act of Parliament to remove the judicial power from the Constitution.

In 2021 it did not take an Act at all.

Next: Chapter 11 — where to now?

Further reading. The Report of the Panel of Eminent Persons to Review the 1988 Judicial Crisis in Malaysia (2008) is free from the Malaysian Bar, and so is Torchbearers: The Bar’s Passage of Justice (1947 to 2021). Read the Panel’s five recommendations at the end. They run to two pages, and every one of them is still waiting.

 

 

∞§∞

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 Andrej Lisakov of Unsplash for the 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.”