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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