APRIL 16 — The recent reminders by the Right Honourable Chief Justice of Malaysia Tun Tengku Maimun binti Tuan Mat delivered at the Opening of the Legal Year 2025 Malaysia on 8th January 2025 and at the 24th Commonwealth Law Conference in Malta on 8th April 2025, as well as the statement by the Malaysian Bar dated 14th April 2025, of the importance of and necessity for an independent Judiciary and for the continuous strengthening of its independence are timely and ought to be supported.
There has been in the last week much ado about and much misunderstanding on what judicial independence is and should be in Malaysia.
Judicial independence simply means that the institution of the Judiciary, the individual judges comprised therein, and the administration of justice must be free from improper influence, manipulation, pressure or interference.
That the Judiciary and its judges shall be insulated against inducement, harassment, vilification, threats and persecution.
That all actions and decisions of the Judiciary and its judges are solely based on evidence and the law, irrespective of popularity or unpopularity of such actions and decisions. Judges are required to always do the right thing, not the popular thing.
Judicial independence must not only be effected, it must be seen to be effected.
The reasons for this are clear. The work of and decisions by the Judiciary and its judges must be sound, fair and just, and seen to be so. That all who live, work and invest in Malaysia would have utmost confidence that we may all look to the Judiciary and its judges to right wrongs and protect us irrespective of our economic circumstance and standing in society.
This is needed to provide security of person, liberty and property, as well as to promote business and investments in Malaysia.
Put another way, if we do not have or continue to have an independent Judiciary, then we would have iniquity, injustice, abuse of power, authoritarianism, dictatorship and misery.
The above are fundamental truths.
Judicial independence simply means that the institution of the Judiciary, the individual judges comprised therein, and the administration of justice must be free from improper influence, manipulation, pressure or interference. — Picture from Pexels.com
To promote and safeguard judicial independence, features such as objectivity and independence of appointment of judges, security of tenure for judges and security of remuneration of judges are important.
The Judiciary is different from the Legislature and the Executive Cabinet, that are the other constitutional branches of government.
Members of the Legislature are elected via the popular vote, that is, the candidates obtaining the most votes wins. The Executive Cabinet, is by and large also elected by the popular vote (save for appointed senators) and thereafter appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister. They must vacate office come the next elections, and may be re-elected, again depending on the popular vote. Members of the Legislature and Executive Cabinet are therefore generally accountable in this sense to the public and the popular vote.
Judges of the Superior Courts are not elected. They are interviewed and vetted by the Judicial Appointments Commission (“JAC”) for their background, qualifications and attributes such as integrity and diligence. The selection of judicial candidates is, inter-alia, merit based.
After such due selection process, they are recommended by the JAC through the Chief Justice to the Prime Minister, who advises the Yang di-Pertuan Agong on such appointments or promotions of judges of the Superior Courts after consulting the Conference of Rulers.
The Prime Minister is thus the gatekeeper and has de facto say in the appointments and promotion of judges.
Even with the Judicial Appointments Commission Act 2009 and the establishment of the JAC, it is said that there have been instances of the process being by-passed for selection of judges for appointment or promotion. Resulting in appointments which in the minds of some being a mixed bag of excellent, good or not so good. These instances were not publicly known at the material time, hence may account for lack of public comment. In any event, this underscores the need for further reforms to strengthen the process.
What has been said by the Chief Justice Tun Tengku Maimun and by the Malaysian Bar for reforms to continue strengthening judicial independence, including for the removal or curtailment of the Prime Minister’s role in the appointments and promotions of judges of the Superior Courts (which would entail amendments to the Federal Constitution) are consistent with the promises made in the Pakatan Harapan Manifesto for the 2018 and 2022 General Elections, as well as the public stance by the Right Honourable Prime Minister Dato’ Seri Anwar bin Ibrahim (who is also the chairman/leader of Pakatan Harapan).
Pakatan Harapan Manifesto 2018
“The judicial and legal institutions are an important check and balance mechanism in the country. These institutions must be independent and they must have integrity, so that they are trusted by the people.
The power of the Prime Minister to influence the appointment of judges will be removed so that there can be no abuse of power.
Membership of the Judicial Appointments Commission will be decided by a Parliamentary Select Committee. The decision of this Committee will be implemented after referring to the wisdom and discretion of the DYMM Yang DiPertuan Agong and the Rulers’ Council.”
The appointment of the Chief Justice and the President of the Court of Appeal through the backdoor as practiced by UMNO and Barisan Nasional will be stopped immediately.”
Pakatan Harapan Manifesto 2022
“HARAPAN will continue to protect the integrity of Malaysia’s administration by limiting the power of the executive, ensuring the freedom of our judiciary, and reorganising the political structures of the country… “…
“HARAPAN will continue its commitment to build a new Malaysia that is much better than before. This includes … maintaining institutional reforms, raising the value of integrity, and respecting the independence of the judicial and legislative bodies.”
The Malaysian Bar has likewise been advocating for the removal or curtailment of the role of the Prime Minister in the appointment and promotion of judges, and for the JAC to provide its recommendations directly to the Yang di-Pertuan Agong for the appointments of judges of the superior courts, after consulting the Conference of Rulers.
The ‘Royal Commission of Enquiry on the Video Clip Recording of Images of a Person Purported to be an Advocate and Solicitor Speaking on the Telephone on Matters Regarding the Appointment of Judges’ had also found in 2009 that the role of the Prime Minister in the appointment and promotion of judges of the Superior Courts to be too extensive and recommended for the formation of the JAC, and that it would only be on exceptional grounds that a Prime Minister may be inclined to reject the recommendation of the JAC, and in doing so, the Prime Minister must provide his/her reasons.
The Prime Minister has also been recently reported in the news media as re-affirming his commitment to continue reforming the law in respect of the JAC to preserve the separation of powers and rule of law, which includes the independence of the Judiciary.
Bernama
“We will consult widely, including with the judiciary, the Bar, civil society, and the Conference of Rulers, to determine how the system can be improved to better reflect the constitutional balance, enhance public trust, and protect the independence and integrity of our judiciary.”
The Star
“Any reforms to the Act will uphold the principles of the Federal Constitution, preserving the doctrine of the separation of powers and ensuring the rule of law.”
“I am aware that JAC’s structure and membership, as well as its role in the judicial appointment process have long been questioned by various parties, including the judiciary, the Bar Council and NGOs.
“Therefore, while the government will defend JAC Act’s constitutionality in court, I wish to express the government’s commitment to thoroughly review the JAC framework,” he added.
“This review, however, will preserve the role of the Yang di-Pertuan Agong and the prerogatives of the Malay Rulers as enshrined in the Federal Constitution.”
Hence, the recent commotion by some is puzzling when the stakeholders appear to be ad idem. The late Pak Lah was the Prime Minister in 2009 when the JAC was established as the historic first reformative step towards strengthening the independence of the Judiciary. Malaysia awaits a Prime Minister who would inspire further reformation.
Past presidents of the Malaysian Bar:
Zainur Zakaria, Cyrus Das, Mah Weng Kwai, Kuthubul Zaman Bukhari, Yeo Yang Poh, Ambiga Sreenevasan, Ragunath Kesavan, Christopher Leong and Steven Thiru.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
