“Being a judge is a tireless, thankless, and a challenging profession. No matter which way you decide, there will always be at least one disgruntled party. You are constantly under watch and scrutiny not only from the litigants that seek justice before you but from the entire public that remunerate you and trust that you will set aside your own persona, your own ideals, and your own personal biases in favour of something much larger that you: the Constitution and the law.”
— Speech of the Chief Justice of Malaysia at the opening of the legal year (Jan 8, 2025)
(Jan 23): Constitutionalism and the independence of the judiciary took centre stage in the speech of The Right Honourable the Chief Justice of Malaysia, Tun Tengku Maimun Tuan Mat, at the opening of the legal year on Jan 8, 2025.
A little history and a little nostalgia, delivered with cold, hard truths, brought to the fore the challenges that befell the judiciary in the last six years. These are challenges that only an independent and fearless judiciary, true to the rule of law, could have navigated. The chief justice’s leadership during this time, together with the support and conduct of the judges, were defining.
Constitutionalism
The chief justice made it crystal clear that constitutional supremacy is “here to stay”, pointing out that unlike the UK where Parliament is supreme, in Malaysia the Federal Constitution is supreme. Article 4 of the Federal Constitution codifies this. Even Parliament, therefore, must act within its confines. Thus, any amendments that are made to the Federal Constitution cannot offend its basic structure, and is open to be struck down under its Article 4 if it does. By way of example are some of the recent constitutional amendments to the citizenship laws which, although passed in Parliament by the requisite majority, are open to challenge if they violate the basic structure of the Federal Constitution.
The stark reminder by the chief justice was that our founding document, the Federal Constitution, cannot be amended at will, but must in all instances conform to the basic structure of the Federal Constitution.
Judicial independence
The pressures put on the judiciary in the last several years by external forces were clear to many of us who know the signs only too well. It is widely perceived that the previous three governments valued and respected judicial independence more that the current government, which is extremely disappointing, to say the least.
It is evident from the chief justice’s speech that we must be ever vigilant to preserve the independence of the judiciary. We have arrived at a point where the Malaysian judiciary is internationally recognised for its independence, putting the country in the best position to attract investments. This is a result of years of the painstaking rebuilding of its weakened structures. Any backsliding into the unfortunate past must be stopped immediately, lest the country and its people pay the price once again.
Not everyone is qualified to be a judge. As pointed out by the chief justice, judges serve a higher calling requiring not just excellent qualifications, but a special temperament and an ability to hand down judgements without fear or favour, and without succumbing to pressure. It goes without saying that it also requires a sterling character, integrity and courage.
Hence, the importance of the Judicial Appointments Commission (JAC) and its onerous responsibilities of choosing the best candidates to serve as judges cannot be emphasised enough.
It is therefore of utmost concern, and certainly no coincidence, when the chief justice referenced the offence of interference in the judicial appointment process under the Judicial Appointments Commission Act 2009. Surely, this is a serious matter that must receive immediate attention, and certainly warrants an investigation.
In countries where authoritarianism thrives, the first casualty is often the independence of the judiciary. Why? Because they are the institution that stands between the people and any abuse of power by the state, thus holding them in check. It is no wonder that they would be a target of attack by any government who has such leanings.
We, as members of the Malaysian Bar, have a statutory duty to uphold the rule of law and the independence of the judiciary. We have done so in the past, and we must continue to do so. The chief justice has sounded the clarion call, and we must respond accordingly.
We the undersigned, commend the courageous words of the chief justice and her unwavering commitment to her oath of office, to the Federal Constitution, and to the independence of the judiciary. We must heed her words, for they suggest we are perilously close to losing all that we have fought for in the last 35 years.
The above press statement was released on Jan 23, 2025, by the Malaysian Bar's past-presidents as follows:
1) Zainur Zakaria
2) Mah Weng Kwai
3) Kuthubul Zaman Bukhari
4) Yeo Yang Poh
5) Ambiga Sreenevasan
6) Ragunath Kesavan
7) Lim Chee Wee
8) Christopher Leong
9) Steven Thiru