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Authoritarian Populism in
Malaysia and Judicial
Independence
Matteo Mastracci, Ph.D. Koç University
Outline
A. Mahathir Mohamad = Populist Leader?
i. The Malay Dilemma
B. 2018 Election and PH Manifesto
i. Promise 19
C. Judicial Independence
i. 1988 The Judiciary Crisis
ii. Recent developments (JAC, PSC)
Mahathir Mohamad: Populist Leader?
“A thin-centred ideology that considers society to be ultimately separated
into two homogeneous and antagonistic groups, the
pure people versus
the corrupt elite
, and which argues that politics should be an expression
of the volonté générale”
Cas Mudde
What matters it is the
exacerbation of personalistic leadership
and
the role of the leader as a representation of the nations’ interests against
its conceptual enemies.
Ernesto Laclau
Mahathir Mohamad: Populist Leader?
➢“The Malays are spiritually inclined, tolerant and easy-going. The non-
Malays, especially the Chinese are materialistic, aggressive and have an
appetite for work. For equality to come about it is necessary that these
striking contrasting races adjust to each other. Laws cannot do this” Pg. 126
➢“The Malays are the rightful owners of Malaysia, and that if citizenship is
conferred on races other than the Malaysia, it is because the Malays consent
to this. That consent is conditional” Pg. 161
➢“To be identified with the
definitive people
is to accept their history, their
geography, literature, language, culture and to reject anything else” Pg. 182
2018 Malaysian General Election
Pakatan
Harapan’s
Manifesto
Promise 19: Restore public trust in the
judicial
1988 The Judiciary Crisis
Starting Point
1987 UMNO President Election
Ending Point
Sacking of Lord President
Tun Salleh Abas
+
5 Supreme Court judges
UMNO President Election
In 1987, the incumbent President Mahathir was challenged within his party by Tengku
Razaleigh Hamzah (known as the candidate of “Team B”); the official results declared
the former as the winner by just a handful of votes.
At that point, 12 UMNO members of Team B filed a lawsuit before the High Court:
•30 delegates not approved by Registrar under Societies Act 1966
Indeed, Section 12 of the Act declared that: “where a registered society establishes a
branch without the prior approval of the Registrar such registered society and the
branch so established shall be deemed to be unlawful societies”
UMNO President Election
The case heard by Harun Hashim J ended up with a judgment on 4 February 1988
“UMNO as an unlawful society”
The 1987 Presidential Election were to be considered as affected by invalidity.
and the UMNO 11 “as members of UMNO, cannot acquire any right which is
founded upon that which is unlawful”
Appeal to the Supreme Court of Malaysia lodged by UMNO 11
Constitutional Amendments
Articles 121 to 131A
Judicial Powers as long as the Parliament might grant them
“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”
Mahathir Mohamad
Letter to the King from Tun Salleh Abas (Lord President of the Supreme Court)
Reaction
Tun Salleh Abas’ Letter
Sacking as a Judicial Purge
Tun Salleh Abas, then, was
brought before the Supreme
Court on the ground of
misconduct
(Art. 125, par. 3)
The 5 Judges who granted an
interlocutory order were sacked
and Salleh Abas removed from
his office
As Today,
Judicial Appointments Commission (JAC)
•Ratio: Enforce the judiciary independence through controlled
appointments***
•Established on 2 February 2009 (Judicial Appointments Act 2009)
under Prime Minister Abdullah Badawi (2003-2009)
•Main Role: “Upholding the continuous independence of the
judiciary”
However
➢The Prime Minister has a very strong influence over the judicial
appointments: indeed, he directly appoints 5/9 judges
***
JAC Act –Article 2
Upholding independence of judiciary
•2. The
Prime Minister
must uphold the continued independence of
the judiciary and must have regard to —
•(a) the need to defend that independence;
•(b) the need for the judiciary to have the support necessary to
•enable them to exercise their functions;
•(c) the need for public interest to be properly represented in regard to
matters relating to the judiciary, the administration of justice and
related matters.
(continue) As Today,
Parliamentary Select Committee (PSC)
•PM Mahathir advanced a PSC that would select judges before being
forwarded to the King for the formal appointment
•Not clear the exact composition of such body
•Not clear the interaction with the existing JAC: abolished?
However
➢Traditionally, such committees reflect the parliamentary strength of
political parties and the PM is likely to be the dominus of such bodies
➢Risk of excessive political interference in the independence of the
judiciary
Malaysia: one of the most IJS in Asia?