Malaysia’s top judge calls for greater independence as spectre of interference rises again

KUALA LUMPUR - Chief Justice Tengku Maimun Tuan Mat has reminded Prime Minister Anwar Ibrahim of his past assertions as opposition leader that the premier should not have ultimate discretion in appointing judges, even as Malaysia’s judiciary heads into a crucial crossroads.

The remarks by the country’s top judge – who also warned against external interference in the selection process on Jan 8 during her opening speech of the legal year – come on the back of controversial judicial appointments in 2024.

These developments are being watched closely by the local legal fraternity and wider investment community as 2025 will see a slew of important vacancies. Three quarters of the 12-strong Federal Court, including the Chief Justice, are due for mandatory retirement at age 66.

In her speech, Tun Maimun referred to then opposition leader Anwar’s view when debating the Judicial Appointments Commission Act (Jaca) in Parliament in 2008 that the proposed law “was not enough to restore the independence” of the judiciary.

“He went on to observe that there is a perception that persons who had decided in favour of the government were promoted,” she said in her last officiating speech for the legal year before retiring in July.

According to the parliamentary Hansard, Datuk Seri Anwar had argued then that the “power to appoint and remove is so rigidly and tightly handed to the prime minister’s discretion” – a position taken by other critics of the Jaca, including the Bar Council, which leads the Malaysian Bar of more than 20,000 lawyers.

“That said, what is clear… is this – no person other than the JAC (Judicial Appointments Commission) and the prime minister can recommend candidates for appointment to all posts in the Superior Courts,” added Madam Maimun.

“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 prime minister for appointment.”

Much of the controversy over judicial appointments in 2024 revolved around the nearly nine-month-long vacancy for Chief Judge of Malaya (CJM), the third-highest office in the judiciary.

Under the Malaysian judiciary system, the Chief Justice is the highest position in the land, followed by the president of the Court of Appeal, the CJM, and the Chief Judge of Sabah and Sarawak.

This was despite at least three candidates from the Federal Court recommended by the JAC – made up of the four top-ranking judges, and five other persons selected by the PM – to Mr Anwar, legal sources confirmed.

They also told The Straits Times that the delay in appointing a CJM derailed a succession plan to allow one of the apex court judges to gain the needed administrative and leadership experience to eventually fill Madam Maimun’s shoes.

The current Chief Justice is widely considered to be one of the best leaders of the judiciary in Malaysian history.

This came amid media reports that then Attorney-General Terrirudin Salleh would instead be appointed directly as CJM. Tan Sri Terrirudin had in September 2023, during his first week as Malaysia’s top lawyer, decided not to appeal against former premier Najib Razak’s acquittal in a 1MDB audit tampering case.

He was eventually made a Federal Court judge in November 2024, at the same time as when Datuk Seri Hasnah Hashim was elevated as CJM. 

But observers see her appointment as a temporary compromise as she herself is due to retire in May. The law allows for a judge’s tenure to be extended up to six months beyond their 66th birthdays, which would allow Madam Hasnah a maximum tenure of just one year.

The installation of the duo also sparked concerns over judicial interference as the JAC lacked the quorum at the time, with only four sitting members since September 2024.

Further, the JAC secretariat only announced the appointment of four new members on Nov 18, 2024 – including former attorney-general Idrus Harun, whose last act before retiring in September 2023 was to drop graft charges against deputy premier Zahid Hamidi – a week after Madam Hasnah was made CJM.

“It suggests that the appointments of Hasnah, Terrirudin and others may not have gone through the JAC,” former Court of Appeal judge Hamid Sultan Abu Backer wrote on Nov 15 in a letter to a news portal, claiming delays in “many judicial appointments.”

Since taking office in November 2022, Mr Anwar has repeatedly insisted that he would not interfere in the judiciary.

Madam Maimun also recalled in her Jan 8 speech the “blemish in our history” of the 1988 judicial crisis – widely considered the darkest episode in Malaysian legal history – a reference that has also been made by other Federal Court judges in recent months amid growing concern in the legal fraternity over the CJM situation.

Then Prime Minister Mahathir Mohamad had convened a tribunal in 1988 against Lord President – a role renamed Chief Justice in 1994 – Salleh Abas, which removed him on grounds of misconduct in an episode that also saw five apex court judges suspended.

She said the 1988 crisis “paved the way for further incursions” into the judiciary, most infamously the V.K. Lingam Tapes, which led to a 2007 Royal Commission of Inquiry where “revelations were made that certain persons were literally deciding on who should become judges specifically as a means of reward, as though appointments of judges can be used as bargaining chips”.

During the inquiry hearings into recordings from 2002 – of alleged interference in the judicial appointment process of Malaysian judges that purportedly occurred that year involving well-connected senior lawyer Kanagalingam Vellupillai – then Premier Mahathir, tycoon Vincent Tan and Mr Kanagalingam had all denied any wrongdoing involving judicial appointments.

Noting how Malaysia’s rankings in rule of law indexes have improved since 2016, Madam Maimun said at the opening of the legal year that “they denote the reality of how the country is viewed for purposes of investment, and are requisites for economic and social progress”.

Her speech echoed the sentiments of senior members of the legal fraternity in recent months, including Malaysian Bar chairman Ezri Abdul Wahab and many of his predecessors.

The Kuala Lumpur Bar also issued an immediate expression of support on Jan 8, saying the top judge “rightly highlighted the dangers posed by any perceived encroachment of the executive into the judiciary’s domain”.

“The consolidation of appointment powers in a single office undermines this independence and risks politicising a process that must remain impartial and merit-based.

“In this context, the Kuala Lumpur Bar reminds Prime Minister Anwar Ibrahim of his past commitments and assurances, given as leader of the opposition at the time and now as prime minister, to uphold judicial independence,” it added in a statement.