A PANEL CONVENED to investigate the 1988 Malaysian constitutional crisis has handed in its final report, concluding that the Malaysian judiciary never fully recovered from the scandal.
The panel’s final report concluded that the suspension of the Chief Justice (then known as the Lord President of the Supreme Court) was inappropriate and entirely without justification, and found that the ramifications of this kind of political interference could affect public confidence in the judiciary for generations to come.
Australian lawyer Dr Gordon Hughes, a partner at Blake Dawson, was selected to participate in the panel. Dr Hughes has built a strong reputation in the Asia-Pacific region as a former president of Law Council of Australia and LAWASIA.
“The ultimate outcome of the report is that we say that first of all, there were inappropriate grounds to dismiss the Chief Justice,” Hughes said.
“Second, there were a number of substantial flaws in the manner in which the charges against him were heard and decided. And third [the report concluded] that this must not be allowed to happen again.”
Hughes said the 20th anniversary of the crisis was an opportunity to revisit the events “in a more dispassionate environment that might have existed at the time”.
The parallels with the current judicial crisis in Pakistan were evident from the make-up of the review panel, chaired by Justice J. S. Verma, former Chief Justice of the Supreme Court of India, with members including Justice Fakhruddin Ebrahim, former Judge of the Supreme Court of Pakistan and Dr Asma Jahangir, Advocate of the Supreme Court of Pakistan.
Hughes agreed that the review has present-day ramifications given the present judicial crisis in Pakistan. In 1997 former President Pervez Musharraf declared of a state of emergency, subsequently removing several senior members of the judiciary.
“Certainly it’s very relevant to what’s going on in Pakistan,” Hughes said. “The principles that the panel express concern about are certainly equally applicable in Pakistan.”
In conducting the review, Hughes said he was taken aback by the blatancy of the actions taken by incumbent president Mahathir Mohamad at the time of the crisis.
“What I half expected to find was some justification for what happened. But the more I looked into it — well, what surprised me into it was that there was no justification at all for the action taken against any of the judges,” he said.
In revisiting the events of 1988, Hughes said, the panel relied upon transcripts from the tribunals which presided over the first and second tribunals.
With the membership of the panel comprising representatives from Malaysia, India and Pakistan, and Hughes admitted his colleagues came to the table with very different legal backgrounds.
“It was interesting, because all the panel members came from vastly different backgrounds, with significantly different experiences within the law,” he said. “But despite some robust debate about some issues, all of us agreed. All of us came to the same conclusion on all the key issues.”
The ramifications of the 1988 crisis continue well into the present day, Hughes said. “The fall out in that period was division and disillusionment amongst the profession and the creation of a perception, both amongst the profession and amongst the public, which continues to this day, that if the government doesn’t like what the courts are saying, they can sack the judges.”
The Malaysian Bar Council, the International Bar Association, LAWASIA and Transparency International Malaysia established the Panel of Eminent Persons to investigate and report on the events and implication of the 1988 constitutional crisis, including an examination of the alleged ‘judicial misbehavior’.
The panel met in Kuala Lumpur on three or four occasion over eight months, writing up their reports on the various issues independently.