1988 Malaysian Constitutional Crisis - Constitutional Amendments

Constitutional Amendments

The "UMNO 11" case was just one of a number which had irritated Mahathir and the government. The case of the two journalists mentioned earlier had begun when John Berthelsen and Raphael Pura authored a series of articles on financial transactions of dubious ethical and legal nature carried out by government officials. The Asian Wall Street Journal which published them was promptly banned from the country, and Mahathir in his capacity as Home Affairs Minister had Berthelsen's and Pura's work permits revoked. However, the Supreme Court overturned the cancellation of Berthelsen's work permit because he had not been given a chance to answer the charges of the government. As a result, the ban on the Asian Wall Street Journal was also lifted. In a different case, the Supreme Court used its power of judicial review, and nullified amendments to the Criminal Procedure Code which gave the Attorney-General the power to initiate criminal proceedings in the High Court without first going to a Magistrate's Court. After Operation Lallang in 1987, where the government detained several political dissidents without trial under the Internal Security Act (ISA), the High Court granted Karpal Singh's application to be released from detention due to technicalities in the way he had been detained.

This last case did it for Mahathir. The following week, he submitted several constitutional amendments to Parliament, divesting the courts of the "judicial power of the Federation" and giving them only such judicial powers as Parliament might grant them. In justifying the amendments, Mahathir stated: "...the courts have decided that in enforcing the law they are bound by their interpretations and not by the reasons for which Parliament formulated these laws ... lately the judiciary had seen fit to touch on matters which were previously regarded as solely within the executive's jurisdiction."

The Lord President of the Supreme Court, Tun Salleh Abas, was pressured by his fellow judges to respond to the government's actions. Salleh decided to convene a meeting of all 20 judges from the Supreme and High Courts in the capital of Kuala Lumpur. At the meeting, they agreed not to publicly reply to Mahathir's criticisms. Instead, they wrote a confidential letter to the Yang di-Pertuan Agong (King) and the Malay rulers, expressing their grievances. The proposed letter, which was unanimously approved, was written by Salleh Abas. The letter stated the judges' disappointment "with the various comments and accusations made by the Honourable Prime Minister against the Judiciary," but did not demand specific action be taken — instead, it ended with an expression of "hope that all those unfounded accusations will be stopped".