(April 25): It is neither controversial nor counter-democratic for the head of the judiciary to defend the judicial institution and seek to strengthen it, which includes giving opinions on institutional reforms to reinforce judicial independence.

Institutionally, the judiciary is the weakest among the three branches, being the most susceptible to encroachments by the other two. Furthermore, it lacks spending power. Nor does the judiciary have the same tools, resources and forum to respond to attacks against it that the other two branches have. In American founding father Alexander Hamilton's words, the judiciary neither controls the ‘purse’ nor the ‘sword’.

This double-barrelled vulnerability leaves the judiciary with no recourse to protect itself, especially when judicial independence is at stake. The 1988 judicial crisis, which led to the removal of the Lord President and two other Supreme Court judges, left an indelible blot in the country’s judicial history. Likewise for the judicial fixing scandal infamously known as the ‘Lingam Tape Scandal’. In both instances, the judiciary was defenceless.

Viewed in these institutional and historical contexts, it demands courageous judicial leadership to voice concerns from within the judiciary. Chief Justice Tun Tengku Maimun Tuan Mat’s recent speech at the Commonwealth Law Conference in Malta advanced her affirmative view, as the Chief Justice, on the proposals to amend the Judicial Appointments Commission Act 2009 (JAC Act 2009) and the Federal Constitution to remove the prime ministerial role in judicial appointments. As many lawyers like Haniff Khatri Abdulla rightly observed, Tengku Maimun’s speech has been blown out of proportion. It merely rehearsed the longstanding arguments for reforming the JAC by the Malaysian Bar, civil society and the legal academia.

Many politicians, including Datuk Seri Mohd Nazri Aziz, have questioned the legitimacy of her role as a judge in making such remarks, especially on constitutional reforms which will alter the balance of powers. In their views, this may amount to an overreaching of the judicial role, as the judges should not interfere with the legislative-making powers of the legislature, and constitutional amendments fall firmly within such powers.

Such views, with due respect, are misplaced. In Malaysia, the Federal Constitution is supreme under Article 4(1), unlike the UK, where the Parliament is supreme. The Malaysian Federal Constitution, structurally, not only empowers the Malaysian judiciary to interpret the Constitution, but also to safeguard the constitutional principles. One of the cardinal principles is judicial independence.

Upon scrutiny, Tengku Maimun’s speech does not, in any sense, usurp the role of the legislature or executive. It is merely a view to buttress judicial independence. Such a view, in light of the institutional history and constitutional context of Malaysia, is measured and justified.

Interpreting historical facts from a different angle is one thing, but distorting or selectively ignoring historical facts and truth is another.

Mahathir Rais has recently asserted that there were inconsistencies in such a call for reform, where ‘bypasses of the JAC process by previous administrations’ were ‘quietly accepted, even celebrated’. Along this vein, he doubted the ‘historical honesty’ of these reform proposals, especially when the judicial members supporting such proposals were appointed through the same processes. This assertion, nonetheless, warrants some detailed clarification and rebuttals.

The bypasses referred to by Rais pertain to the investigation of the Special Task Force (STF) of former attorney general Tommy Thomas’ memoir “My Story: Justice in the Wilderness” regarding the alleged bypassing of JAC recommendations during the administration of Tun Dr Mahathir Mohamad from 2018 to 2020. In October 2022, the government declassified the STF report.

The STF report revealed that in June 2018, Mahathir, as the newly elected prime minister, did not adopt any of the JAC’s recommendations submitted by then Chief Justice Mohamed Raus Sharif for appointing three top judges of the upper echelons — the Chief Justice, the President of the Court of Appeal and the Chief Judge of Sabah and Sarawak — as confirmed by the secretary of the JAC. Instead, the judicial candidates put forward by Mahathir prevailed.

At first glance, this seemed to suggest executive interference in judicial appointments, as characterised by the report. Nonetheless, this was an oversimplification of facts.

First, in 2017, the tenures of Mohamed Raus and President of the Court of Appeal Zulkefli Ahmad Makinudin were extended through their appointment as ‘additional judges’. This move was controversial as it bypassed the constitutional age limit imposed on them under Article 125(1). The constitutionality of their appointments was legally challenged before the court. Therefore, these naturally cast doubts on the legitimacy of the recommendation by the JAC chaired by Mohamed Raus.

Second, upon further inspection, the JAC’s recommendation on June 13, 2018 may not be legal at all. Five judges and four eminent persons sit on the nine-member JAC. As shown by the JAC’s official website, the positions of four eminent persons were all vacated from Feb 9, 2017 to Sept 3, 2018. It was impossible for the then JAC to achieve the statutorily required quorum to select judicial candidates. A quorum of at least seven members is required for every selection meeting under Section 24(4) of the JAC Act 2009.

Third, this seemed to be only a one-off non-compliance with the JAC’s recommendation during the Mahathir administration from 2018 to 2020. The STF report clearly showed that during the second round of judicial appointments in 2019, he largely followed the institutional procedures prescribed by the JAC Act 2009 in appointing the top three judicial posts – the Chief Justice, the President of the Court of Appeal and the Chief Judge of the High Court in Malaya.

According to the report, it is crystal clear that the current Chief Justice of Malaysia Tengku Maimun was appointed in a procedure which fully complied with the processes prescribed by the JAC Act 2009. This fact was further supported by the revelation of a former JAC member on April 22, 2025, therefore dispelling any misconceived doubts questioning the procedural propriety of her appointment.  

More strikingly, the report showed that on April 5, 2019, the JAC, under the leadership of the then Chief Justice of Malaysia Richard Malanjum, managed to thwart Mahathir’s attempt to substitute his candidate in place of the JAC-recommended candidate for the Chief Judge of Malaya. The judicial candidate recommended by the JAC — Azahar Mohamed — ultimately prevailed over his preferred candidate, Abang Iskandar Abang Hashim.

In short, the ‘bypasses of JAC processes’ in 2018 seemed to be a one-off exceptional situation which may have warranted executive input, particularly given the highly politicised and controversial judicial appointments by the previous regime under Datuk Seri Najib Razak. The legality of the JAC’s recommendation in June 2018 was highly questionable, as was the constitutionality of the appointment of the Chief Justice who chaired it.

The historical facts above rebut Rais’ scepticism of the ‘historical honesty’ of judicial leaders calling for reforms. They also highlight the key role played by the judicial leaders in safeguarding judicial independence, particularly Chief Justice-cum-JAC Chairman Richard Malanjum in 2019. At the same time, they expose that the current institutional safeguards are inadequate, as institutional leadership plays a more pivotal role.  

The JAC Act 2009 has been far from perfect since its inception. To recall, in 2013, the then prime minister Najib vetoed the JAC’s recommendations on the elevation of Datuk Seri Mohd Hishamudin Yunus to the Federal Court. No explanations were given. The transparency of the executive decision-making in the adoption process of JAC recommendations has always been questioned. These point towards the problematic retention of executive discretion under the JAC Act 2009, which, in turn, paradoxically required another executive intervention in 2018 to restore judicial independence when the then JAC was dysfunctional.

Therefore, as both the Chief Justice and the JAC chairperson, Tengku Maimun’s endorsement of the JAC reforms was timely, given that her tenure is soon ending. It seems logical and plausible to suggest that constitutional guarantees of judicial independence, which are systemically entrenched, are more reliable than transient institutional leadership in practice. The operation of the JAC, which remains largely contingent on institutional practices, should be revamped along this line.

The Constitution is dynamic, not static. Nonetheless, some guiding principles of the Constitution are immutable and unalterable. One of them is judicial independence, as intended by the framers of the Constitution.

Applying Rais’s logic that the Federal Constitution’s Article 122B, which outlines the process for appointing judges, preserves the framers’ intent, which designated the executive role as ‘part of a system of checks and balances’ to hold the judiciary accountable, then one would inevitably question how the constitutional amendment of Article 121(1) in 1988, which purported to remove ‘the judicial power vested into the judiciary’, fits in this picture.

I agree with Rais that any discussion about judicial independence cannot be divorced from the constitutional context. Yet, it is disingenuous to ignore or dilute the importance of the 1988 constitutional amendment, alongside the 1988 judicial crisis, which have fundamentally altered the constitutional landscape and adversely affected judicial independence.

No other constitutional amendment has shifted the constitutional balance of powers as radically as the amendment of Article 121(1) in 1988. The judiciary viewed its judicial power as being ‘watered down’ by such an amendment and therefore deferred extensively to the executive and legislature in its judicial decisions. The 1988 judicial crisis diminished judicial morale. Subsequent judicial scandals further tarnished public perception towards judicial independence.

This is the constitutional context which matters. While we discuss prospective reforms, we should never forget to inspect retrospectively to understand the underlying concerns informing the reform proposals. If a constitutional amendment to Article 122B is required to entrench judicial independence, so be it. The framers’ intent does not require all constitutional provisions to remain intact. Conversely, constitutional amendments may be necessary to give effect to the framers’ intent, especially when the prevailing circumstances — a lopsided balance of powers favouring the executive and legislature — contradict what the framers envisaged.

It took almost 30 years for the judiciary to recover its judicial power and independence by declaring that the amended Article 121(1) did not undermine the judicial power because it remains vested in the judiciary due to constitutional supremacy under Article 4(1) in 2017.

Nonetheless, the judiciary is fraught with myriad challenges. Internally, the eight-month-long gridlock in filling the vacancy of the Chief Judge of Malaya exposes the fragility of the current JAC. Externally, the political mobilisation of fervent supporters protesting against decisions involving prominent political figures (e.g. the SRC case) and cases involving religion (e.g. the Nik Elin case) poses a visible threat to judicial independence.

Hence, with Tengku Maimun’s impending retirement, the Malaysian judiciary is approaching a critical juncture, which could dictate its future development for the next few decades. It is therefore high time, and indeed brave, for her as the judicial leader to step up and echo institutional reforms to bolster judicial independence. By doing so, she is not only defending the judicial institution, but also discharging the obligations under her constitutional oath to ‘preserve, protect and defend’ the Federal Constitution. Without an independent judiciary, the Constitution could not operate effectively.

Moreover, it is neither uncommon nor illegitimate for judicial leaders to issue public statements defending the independence of the judiciary. In February 2025, the Lady Chief Justice — the Head of the Judiciary of England and Wales — Baroness Sue Carr, publicly expressed her disapproval towards both Prime Minister Keir Starmer and the Leader of the Opposition’s inaccurate framing of an immigration law case. In reminding the government and the Parliament to respect judicial independence, she remarked, "it is really dangerous to make any criticism of a judgement without a full understanding of the facts and the law."

Similarly, it is indeed dangerous to criticise Tengku Maimun’s speech without reading it in its entirety and fully understanding the constitutional, institutional and historical context surrounding her speech. In this era of political fragmentation, with the rampant rise of populism, facts and truth, unfortunately, are often deliberately ignored or distorted to serve the political rhetoric of certain quarters or for political expediency. Nevertheless, both lady chief justices in Malaysia and England and Wales remain steadfast and unwavering in defending the judiciary, serving as the constitutional bulwark of judicial independence. This, at least, provides us with a beacon of hope.

See Zheng Hong is a PhD in Law candidate (Tunku Abdul Rahman Scholar)  at the University of Cambridge.