Malaysian Maverick: Mahathir Mohamad in Turbulent Times Page 10
Their detention chilled for a decade or more Malaysia's budding middle class, where liberal views and social activism were spreading beyond urban Chinese and Indians to growing numbers of Malays. As the police net widened, some Malaysians who were temporarily abroad refused to return home immediately, having heard whispers they were "on the list". Others took to sleeping at different places at night and notifying friends and family of their whereabouts at all times. Critics accused the police of staggering the detentions over many weeks and nabbing people at all hours of the day and night deliberately to spread fear among activists.
Reports of grim conditions in prison added to the anxiety. Political prisoners were known to be held initially in solitary confinement in concrete cells, badly lit and ventilated and infested with bugs and mosquitoes, and deprived of bed and blankets and other basic comforts. Families hesitated to discuss the detentions in case they jeopardized the chances of early release, or provoked harsher treatment, of their relatives. Special Branch officers broke up a gathering in Kuala Lumpur of those who dared to organize a detainees support group, photographing participants and recording their names.
The government had silenced its most effective critics. Among the 16 detained members of the Democratic Action Party — ten of them parliamentarians — were the official leader of the opposition, Lim Kit Siang, and v. David, secretary general of the Malaysian Trade Union Congress. Eight members of the Malaysian Chinese Association and five members of Gerakan were also detained. Only four UMNO members were jailed, three of them Team B supporters. Dr. Mahathir explained the communal imbalance in the detentions by saying he had to take action against "the people who have been provoking the Malays", as a trade-off for cancelling the giant UMNO rally.
Lim had worked doggedly to expose the financial scandals that characterized the early years of Dr. Mahathir's rule. Lim and Karpal Singh, a lawyer and the party's deputy chairman, temporarily stopped the government proceeding with Malaysia's biggest public works project, a RM3.42 billion contract to complete the north-south highway. With Karpal acting for Lim in a civil suit, they obtained an injunction to prevent the government and a company controlled by UMNO closing the deal. They claimed it was unlawful and tainted by conflict of interest because it involved senior government officials who were also UMNO leaders. Although a majority of the detainees were released after a few months, 49 were served with two-year detention orders. Lim and Karpal, as well as five other Democratic Action Party legislators, were among them.[48]
The closure of the newspapers — the English-language Star, the Chinese-language Sin Chew Jit Poh and the Malay-language Watan — provided more evidence that the government was acting not only to avoid racial unrest. They were the only domestic papers that regularly covered the activities of the public-interest groups and reported the comments of their leaders. The revocation of their publishing licences by the home affairs ministry, though restored the following year, left Malaysia for the time being without a major paper not controlled by UMNO. Although the Star, which carried a weekly column by the paper's publisher and the country's first prime minister, Tunku Abdul Rahman, had been the most outspoken, its criticism of the government was fairly mild. That cautious line was understandable, as the Star had been owned since 1977 by a government party, the Malaysian Chinese Association. The paper's disappearance meant the UMNO-owned New Straits Times had almost no competition for English-language readers. "We are on the road to dictatorship," said the Tunku, a comment not carried by surviving Malaysian papers.
In his address to Parliament, Dr. Mahathir suggested that his administration's openness and liberalism in the first six years had invited the rise of political hostility and criticism, and he would tolerate it no longer.[49] He developed this theme as he shifted into authoritarian gear in the months ahead. In reality, Dr. Mahathir had always held a dim view of democracy, with a particular dislike for pressure groups, the press and other un-elected bodies. As education minister in the late 1970s, he had supported the suppression of the student movement and introduced legislation that ended university autonomy. As deputy prime minister in 1979, he had no hesitation in using the ISA to detain unionists in a dispute with state-owned Malaysian Airlines System.
The record showed that the "growing authoritarianism" of Dr. Mahathir's leadership actually began almost the day he took over as prime minister.[50] Constitutional amendments in 1981 empowered the king — in practice, the executive — to proclaim a state of emergency even "before the actual occurrence of the event" that might threaten security, economic life or public order. And his proclamation could not be questioned in court. It was a drastic departure from the 1957 Constitution, which stipulated that Parliament should decide when an emergency existed.
Dr. Mahathir also tightened regulations affecting press freedom several times between 1984 and 1987, strengthened the Official Secrets Act in 1984 and moved to head off any possible political challenge, especially from civil society groups, outside the political party system. Under an amendment to the Societies Act, an organization had to register as a "political society" to comment on the policies or activities of the government. Otherwise, the Registrar of Societies, a civil servant under the Home Ministry, could interpret any comment as "political" and deregister a society. While compromises were accepted in 1982 and 1983 to accommodate increasing opposition to the act, most of the repressive provisions remained intact.[51]
If there was a liberal gloss to the 2-M administration it was provided by Musa, and his departure left Dr. Mahathir free to indulge his autocratic instincts. Having taken over the Home Ministry from Musa in 1986, Dr. Mahathir would keep it firmly in his grasp for 13 years, using the ISA more freely than any of his predecessors. Soon after Ghafar replaced Musa, Dr. Mahathir pushed another Official Secrets Act amendment through Parliament in defiance of a nine-month campaign by Malaysian lawyers, journalists, labour unions, reform groups and the political opposition. It enhanced the "intimidating effect" by broadening the definition of an official secret and, for the first time, prescribed a mandatory jail sentence for violators.[52]
Hardly had the prison gates slammed shut on the Operation Lalang detainees than Dr. Mahathir moved again to limit the space available to anyone else who might disagree with him. In December 1987, he introduced two pieces of legislation on the same day that imposed additional restrictions on publications, and granted broader powers to the police to curb public gatherings. An amendment to the Police Act made it easier to prosecute organizers and participants of ostensibly private meetings that turned into public forums, while the Printing Presses and Publications Act was amended again in a way that would "further bind an already cowed, pro-establishment media".[53] Dr. Mahathir said the amendments were aimed at individuals and groups who abused the government's liberal attitude. "Being liberal to them is like offering a flower to a monkey," he said. "The monkey would rather tear the flower apart than appreciate its beauty."
Just when it appeared that Dr. Mahathir had cleared all obstacles to his rule, he found a new target in another un-elected body, the judiciary. Stung by several court decisions, he set out to wrest discretionary power from the judges and place it where he felt it belonged, in the hands of the executive. The irony was that as Dr. Mahathir limited political and civil rights, fellow Malaysians increasingly turned to the courts for the redress of grievances, or at least to score points against the government. By late 1987, Dr. Mahathir had the country's legal establishment on edge with his repeated attacks on judges, and the disclosure that he was drafting legislation to define the boundaries of the executive, legislative and judicial branches of government.
Again, Dr. Mahathir's frontal assault was surprising since Malaysia's judiciary previously had not been the source of controversy. The courts had an international reputation for independence and integrity, though they were fairly conservative and had never held any act of parliament unconstitutional. Malaysia's first three premiers, lawyers all, coexisted comfortably with the judiciary, and
Dr. Mahathir seemed to share their appreciation of the institution. "I will always respect the independence of the judiciary," he had told the Asean Law Association General Assembly in October 1982. While the legislature must retain the right to make laws, he said the judiciary should be free to judge the government's alleged trespasses without fear or favour, in accordance with the Constitution, the law and the law of evidence and procedure, as well as justly and fairly. "We shall always respect their judgments."[54]
Having been thwarted at times by the courts, however, an aggrieved and aggressive Dr. Mahathir felt differently. In private, one of his favourite slogans became, "Hang the lawyers, hang the judges."[55] Deep in his heart, Dr. Mahathir found it hard to respect legal practitioners. He had no doubt he was trained in a more noble profession. As he noted, "I ask questions of my patients to get at the truth. The lawyer asks questions of his client in order to find out how to defend his client even if he is wrong."[56]
One case that annoyed him was the government's attempt in 1986 to ban the Hong Kong-based Asian Wall Street Journal for three months and expel its two Kuala Lumpur-based staff correspondents. The Supreme Court, the country's highest legal tribunal, ruled that reporter John Berthelsen was denied his right to a hearing when his work permit was cancelled. Dr. Mahathir was also deeply unhappy that Lim Kit Siang had been able to obtain an injunction, before his detention, delaying the north-south highway contract. It further irked Dr. Mahathir that the High Court ruled in 1987 that his Home Ministry did not have the right to stop Chandra Muzaffar's 263-member Aliran organization from publishing a Malay-language version of its English monthly magazine.
Dr. Mahathir said the laws in the Berthelsen case clearly stated that the minister could decide how long a foreigner could stay in the country and that this decision was final. "But the judge overruled this," he said. "...The person was allowed to stay here and the minister could not do anything." Dr. Mahathir either failed to appreciate the nature of the judicial function, or he no longer accepted there was a place for it in his Malaysia. The judge was simply pointing out that the principles of natural justice, well established in the English common law world, required that the minister let the accused tell his side of the story before being thrown out.
In truth, Dr. Mahathir was familiar with these principles, having invoked them himself two years earlier when he criticized former auditor general Ahmad Noordin Zakaria for failing to give certain individuals named in his report on a bank scandal the right to be heard. "You have created doubts and suspicions about them without their being able to clear themselves," Dr. Mahathir had written to Noordin. "It is elementary justice that people must be allowed to give their side of the story."
That was then. Now, Dr. Mahathir told Parliament that natural justice was an alien British concept that should not apply in Malaysia. He complained that the judiciary used precedents from other countries and that the common law they relied on was unwritten. If judicial review persisted, he said, "the government is no longer the executive. Another group has taken over the role".
Unwilling to accept curial constraints imposed upon the exercise of ministerial powers, Dr. Mahathir took to modifying legislation so that a minister's decree was set in concrete. Typically, the amendments to the Printing Presses and Publications Act gave the home affairs minister "absolute discretion" in granting publishing licences and printing permits. His decision could not be "called in question by any court on any ground whatsoever".
Amendments to the Constitution whisked through Parliament in March 1988 tackled the problem, as Dr. Mahathir saw it, head on: They virtually emasculated the judiciary. The judiciary's powers were removed from the Constitution and transferred to Parliament. Specifically, the High Courts were denied the constitutional right to judicial review. Also, the attorney general assumed responsibility for deciding which court should try a particular criminal case. Almost overnight, the judiciary was stripped of much of its independence and authority, undermining the separation of powers envisaged in the Constitution.[57]
With Lim Kit Siang still in jail in early 1988, the Supreme Court dismissed his legal challenge blocking the government from awarding the huge north-south highway contract to United Engineers (Malaysia) Bhd., a company ultimately controlled by UMNO. It was a significant victory for the government and a setback for public-interest litigation, though the three-two split judgment was a reminder of the executive's vulnerability before an independent judiciary. A High Court judge ordered the release of Karpal Singh, Lim's lawyer, ruling that his two-year detention order — approved by Dr. Mahathir as home affairs minister — was "made without care, caution and a proper sense of responsibility". Shamelessly, as one critic commented, the police re-arrested Karpal under the ISA a couple of hours after he was freed.
The Tengku Razaleigh supporters seeking to overturn Dr. Mahathir's election got more than they bargained for when the High Court in February declared UMNO, the backbone of Malaysian politics since 1946, an illegal organization. While the ruling created considerable confusion and appeared to be a blow to Dr. Mahathir, in reality it was what he sought and anticipated. The last thing he wanted was a re-run of his showdown with Tengku Razaleigh. He had committed himself to the formation of a new party free of the troublemakers.
The UMNO 11, as they were called, were seeking a fresh party election on the grounds that the poll held in April 1987 was flawed. They argued that some delegates who voted were from party branches not approved by Malaysia's Registrar of Societies. A total of 45 delegates selected at the branch level were unacceptable under party rules and Malaysian law, they contended, which could have affected the outcome. Not only was their point uncontested in court, but Dr. Mahathir's lawyers also opted for what was called a "kamikaze defence". They relied on another provision of the Societies Act, that if any branch was unregistered, UMNO itself was an unlawful society. And that was the way Judge Harun Mahmud Hashim ruled.
Amidst the confusion, the competing factions scrambled to register a successor organization that might inherit the former party's 1.4 million members spread over about 800 branches, with its vast assets and even bigger liabilities. Although a premier without a party, Dr. Mahathir could still afford to smile at the ill-fated efforts of his rivals since the Registrar of Societies came under his Home Ministry. When followers of Tengku Razaleigh, under the nominal leadership of ex-premiers Tunku Abdul Rahman and Hussein Onn, tried to register UMNO Malaysia, they were refused. The registrar told them that UMNO, though illegal, had not yet been deleted from the list of societies. A little later, Dr. Mahathir's group had no such trouble registering UMNO Baru, or New UMNO, which before long was referred to as simply UMNO. Dr. Mahathir became member number 0000001, and subsequently would refer to it as "my" party.[58]
By registering a new party before waiting to see if the UMNO 11 would appeal within the 30 days allowed, Dr. Mahathir had painted himself into a corner. A successful appeal would restore the legality of UMNO from which Dr. Mahathir and his followers would be excluded under UMNO's constitution, because they now belonged to another political party. The UMNO 11 had not planned to appeal, but decided to do so on the recommendation of their lawyer, Muhammad Shafee Abdullah, who realized the implications late in the day. Shafee's notice of appeal, filed on day 29, caused panic in the Mahathir camp.
In response to the appeal, Mohamed Salleh Abas, Lord President of the Supreme Court, scheduled an unprecedented hearing by a full bench of nine judges on 13 June 1988. The full court was to sit for the first time, for nothing less than Dr. Mahathir's political survival was at stake. His fate was to be decided not in the rough and tumble of politics where he could be confident of outsmarting and out-slugging most players, but in the rarefied atmosphere of a courtroom in the sway of a majority of judges who were independent enough not to be intimidated by the executive.
If Salleh had convened the court as planned, the hearing "would have been all over in less than an hour", according to one respected former Supreme Court judge,[59]
whose opinion was widely shared. The panel would have followed a binding precedent set in Malaysia's Supreme Court in 1983 and allowed the appeal, he said, declaring the election of the UMNO president null and avoid.
Malaysian political history took a dramatically different course, however. Salleh was summoned to the prime minister's office on 27 May, where he was informed that he was being suspended as head of Malaysia's judiciary on the instructions of the king. Dr. Mahathir told Salleh that the king was displeased by a letter the lord president had written to the king two months earlier complaining about the executive's persistent criticism of the judiciary, and copied to the other sultans. The letter was written on behalf of "all the judges of the country" after 20 of them based in Kuala Lumpur held a meeting and decided on this quiet move, "with the hope that all of those unfounded accusations will be stopped". Salleh, who enjoyed a sound reputation as a competent, independent and somewhat conservative judge, was to face impeachment before a specially constituted tribunal. On the day that Salleh met the prime minister, the acting lord president, Abdul Hamid Omar, postponed the hearing of the UMNO 11 appeal.
What Dr. Mahathir did not tell Salleh, or the rest of the country, was why King Mahmood Iskandar might want to cooperate with the prime minister in decapitating the judiciary. The king owed Dr. Mahathir an incalculable debt, for the prime minister had chosen not to reveal that the king, who had a record of violent conduct before he ascended the throne, had killed his caddy with a golf club, in a fit of temper, the previous year. In retirement, Dr. Mahathir defended his inaction on the grounds that the king and his fellow rulers had legal immunity at the time. As there was no legal provision, "I couldn't just go and tell him resign or something like that...So it was a very difficult situation for me," he said.[60]