Malaysia's judiciary stands at a pivotal moment as it braces for significant leadership changes and increasing calls for reform. This development comes as the Judicial Appointments Commission (JAC) proposes candidates for judicial positions to the prime minister, who holds the final decision-making power. Established in 2009, the JAC was designed to enhance the selection process of judges. However, recent events suggest that the system may require an overhaul to maintain its integrity and independence.
The impending retirement of Chief Justice Tengku Maimun Tuan Mat on July 2, upon reaching the age of 66, marks the beginning of a wave of retirements in the Federal Court. Nine of the 14 judges will retire in the coming months, alongside eight other Federal Court judges. The selection of the next Chief Justice falls to five potential candidates: Rhodzariah Bujang, Abu Bakar Jais, Nordin Hassan, Vazeer Alam Mydin Meera, and Terrirudin Mohd Salleh. This transition period has sparked a debate on whether the current process adequately ensures judicial independence.
Concerns about political influence over judicial appointments have been voiced by various stakeholders, including lawyers, retired judges, and members of Malaysia's legal community. The appointment of Hasnah Mohammed Hashim as Chief Judge of the High Court of Malaya in November 2022, which appeared to bypass the JAC, has added to these concerns. The Conference of Rulers, comprising the heads of Malaysia’s royal households, endorses the prime minister's decisions on judicial appointments, further complicating perceptions of impartiality.
“The talk among judges is that the hierarchy system could be set aside for some of the top positions because the politicians want to wield influence (over the judiciary),” – A senior partner of a large Malaysian law firm (who requested anonymity)
The Malaysian Bar has expressed apprehensions about the selection process, with nine former presidents stating that the current administration lags behind its predecessors in respecting judicial independence. This sentiment echoes the turbulent history of Malaysia's judiciary, notably during what has been termed the "dark years." This period in 1988 saw former premier Mahathir Mohamad clash with the judiciary, resulting in the dismissal of then-top jurist Salleh Abas and two other Federal Court judges.
“Any move to appoint someone who is junior and who was parachuted in would send a bad signal to the institution and investors. It would be dialing back to the dark years,” – A retired jurist (who spoke on the condition of anonymity)
Further examples such as the Ayer Molek affair in 1995 highlight historical challenges with judicial integrity. A government-backed bailout escalated into a contentious court battle, often cited as an instance of judge-fixing. These events underscore long-standing concerns about external influences within Malaysia's judiciary.
“What worries many of us is whether the Prime Minister's choice will result in the judiciary having the best jurist for the job or will it be the best for the PM.” – Zaid Ibrahim, Malaysia’s former law minister
As Malaysia approaches these leadership transitions, there is growing consensus that reforms are necessary. Ramkarpal Singh, a Member of Parliament, has called for urgent reforms to eliminate perceptions of executive influence over judicial appointments.
“The JAC appointments process needs urgent reform to ensure that the perception of executive influence in appointing judges is eliminated,” – Ramkarpal Singh, a Member of Parliament
The current Chief Justice, Tengku Maimun Tuan Mat, leaves behind a legacy of establishing sound legal precedents amidst political pressures. Under her leadership, the judiciary delivered crucial decisions despite political pushback. However, there are concerns that a new leadership team might not uphold these standards.
“Tengku Maimun has established sound legal precedents, but a new team of ‘reformists’ could easily sidestep them in favour of the new ideology,” – Former law minister Zaid
The collapse of the UMNO-led coalition government in May 2018's general election opened avenues for reforms in Malaysia's judiciary. Yet, challenges remain as stakeholders debate how best to balance judicial independence with executive authority.
“For this reason, no person, whether it be the president of the Malaysian Bar, any advocate or solicitor, any political party, the Attorney General, or any other person for that matter, has any business recommending names to the PM for appointment,” – Tengku Maimun
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