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Malaysia Should Embrace UK-Style Judicial Independence

Recent controversies surrounding judicial appointments in Malaysia have once again brought to light a longstanding issue: the lack of a truly independent judiciary.

As questions mount over executive involvement in the appointment of top judges and the silence from key decision-makers, Malaysians are expressing growing dissatisfaction with the transparency, accountability, and integrity of the justice system.

These concerns are not new. From the 1988 judicial crisis to the 2007 V.K. Lingam scandal, Malaysia’s judiciary has, time and again, faced credibility challenges due to perceived executive interference.

Now, as the nation faces another episode of political hesitation and opaque decision-making regarding the succession of top judges, it is time to re-examine how judicial independence can be safeguarded and how the United Kingdom’s model offers a proven path forward.

Learning from the UK: Structural Independence

Malaysia’s legal heritage is deeply rooted in the British common law system, yet it has diverged significantly from the UK’s principles of judicial autonomy. The UK has made clear and deliberate efforts to ensure that its judiciary operates independently from political control.

The most significant step came with the establishment of the UK Supreme Court in 2009, which replaced the judicial function of the House of Lords. This was not merely a symbolic change; it was a constitutional milestone in reinforcing the separation of powers.

The UK Judicial Appointments Commission (JAC), established in 2006, is an independent body tasked with selecting candidates for judicial office based on merit, legal competence, and integrity.

It operates free from executive control, and political leaders, including the Prime Minister, play no direct role in the final decision-making process. This structure ensures that appointments are not subject to political bias, favouritism, or manipulation.

By contrast, in Malaysia, the Prime Minister retains significant influence in judicial appointments. Although the Federal Constitution stipulates that the Yang di-Pertuan Agong formally appoints judges, he must act on the advice of the Prime Minister.

This gives the executive branch enormous discretionary power, which can compromise the judiciary’s impartiality or, at the very least, create the perception of compromise.

Restoring Public Confidence in the Judiciary

Public trust in the judicial system is a cornerstone of any functioning democracy. When citizens believe that judges are impartial and free from political interference, they are more likely to respect the rule of law, comply with legal decisions, and engage with the justice system without fear. When this trust is eroded, however, the entire legal framework becomes unstable.

Malaysia has seen repeated moments where this trust has been strained. The latest controversy over the non-extension of respected judicial figures, despite their contributions to upholding the rule of law, is merely the latest symptom of a deeper institutional problem.

The process remains opaque. Why were these judges not retained? Who are the candidates to succeed them?

Why is the Judicial Appointments Commission’s process being circumvented? These unanswered questions breed speculation and undermine the government’s credibility.

In the UK, such questions rarely arise not because controversies are impossible, but because the process is deliberately shielded from political interference.

Selection panels are comprised of senior judges, laypersons, and legal professionals who follow a strict, transparent procedure. The final selection is made on clear, merit-based criteria, and the outcomes are published for public scrutiny. This openness is central to maintaining public confidence.

The Separation of Powers: More Than a Theory

The principle of separation of powers is enshrined in Malaysia’s constitutional framework, just as it is in other democracies. But in practice, the effectiveness of this principle depends on how institutions are structured and how power is exercised.

The judiciary must be equal in stature and independence to the legislative and executive branches. Without this balance, the executive risks dominating the political system, and legal decisions become vulnerable to external influence.

An independent judiciary serves as a check on executive power. It interprets the Constitution, reviews government actions, and ensures that laws are applied fairly and consistently.

If the judiciary is perceived to be under the control of the executive, its ability to fulfil this role is compromised. The people’s confidence in legal redress, fair trials, and constitutional protections will fade.

In this context, the UK model offers a compelling example of how legal systems can be structured to uphold the separation of powers in both form and function. Importantly, the UK’s reforms were not imposed from above but were the result of long-term public debate and political will to strengthen democratic institutions. Malaysia can and should follow suit.

The Path Forward for Malaysia

To begin aligning with international best practices, Malaysia must implement a series of institutional reforms aimed at removing political influence from the judicial appointment process.

To ensure a truly independent judiciary, Malaysia must undertake a series of key reforms. First, the Judicial Appointments Commission (JAC) should be revamped to function as a fully independent body, free from political appointees, with its decisions made binding rather than merely advisory. The selection process must be transparent and publicly documented to maintain accountability.

Second, executive discretion in judicial appointments must be curtailed particularly the Prime Minister’s role in advising the king with appointments made solely based on the recommendations of the independent JAC.

Third, clear, merit-based criteria should be codified to guide judicial selections, emphasizing legal expertise, experience, and ethical standards.

In addition, the public must be actively engaged through education and awareness initiatives to foster greater understanding and trust in the judicial system.

Finally, institutional culture must be strengthened to ensure that judges and legal professionals feel secure in upholding judicial independence without fear of political interference or retaliation.

Time for Action

Malaysia stands at a critical crossroads. The repeated erosion of judicial independence has weakened democratic institutions and undermined public confidence in the rule of law.

The current dissatisfaction among Malaysians is not merely about individual appointments it is about the perceived failure of the system to rise above politics and protect the people’s interests.

The UK model, while not perfect, offers a robust framework for judicial independence that Malaysia can adapt and implement. If Malaysia is serious about reform and committed to upholding the Federal Constitution, then it must take decisive steps to separate judicial appointments from political control.

It is not too late. The road to reform requires political courage, public engagement, and an unwavering commitment to the principles of democracy.

Malaysians deserve a judiciary they can trust one that serves justice, not politics.

10.07.2025

Kuala Lumpur.

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https://www.malaysiakini.com/columns/748862

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