Safeguarding Judicial Independence: A Call For Transparency And Accountability

“Judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework.”

Zainun Ali FCJ (as Her Ladyship then was) in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat[i]

The University of Malaya Law Society (UMLS) 25/26 expresses serious concern over the ongoing delays in the appointment of judges to the superior courts and the broader implications such delays pose to judicial independence and constitutional integrity in Malaysia.

Overview

Judicial appointments prior to 2009 were made by the Yang di-Pertuan Agong on the advice of the Prime Minister, after a consultation with the Chief Justice and the Conference of Rulers.[ii] However, the passing of the Judicial Appointments Commission Act 2009 (JAC Act 2009) introduced a revised framework and structure by setting out clear selection criteria, necessitating a collective decision-making process by a panel of senior judges and qualified independent members. This is consistent with the aim of the Act, which is “to uphold the continued independence of the judiciary.”

The Judicial Appointments Commission (JAC) is made up of the Chief Justice, the President of the Court of Appeal, the Chief Justice of Malaya, the Chief Justice of Sabah and Sarawak, and five persons appointed by the Prime Minister after consulting the key legal bodies. The passing of the JAC Act 2009 mandated judicial recommendations decided by secret ballot and majority vote, ensuring a more holistic, collective and transparent approach. Crucially, no individual or body other than the JAC and the Prime Minister may recommend names for judicial appointment. Under Section 27 of the JAC Act 2009, any interference with the Commission’s independent functions constitutes a criminal offence. [iii]

There have been clear guidelines set in stone for the appointment of judges since 2009, yet the judiciary and, by extension, the executive and legislative branches of the government are currently facing an unprecedented issue in the form of a prolonged and unexplained vacancy in several top judicial positions. This has given rise to public speculation and growing distrust towards the judiciary. The issues are highlighted as follows.

Ongoing Delays in Judicial Appointments

There are currently 31 vacant positions[iv] in the superior courts, including the offices of Chief Justice and President of the Court of Appeal.[v] The Prime Minister, under Article 122B of the Federal Constitution, is constitutionally mandated to advise the Yang di-Pertuan Agong on judicial appointments. However, such discretion must be exercised promptly and in good faith, especially where institutional leadership is involved.

The JAC, empowered under Sections 21 to 23 of the JAC Act 2009, is believed to have evaluated and submitted its recommendations according to law.[vi] Delays in confirming these appointments—without official clarification—raise legitimate concerns that the constitutional process is being circumvented or, worse, politicised. Such concerns are echoed by the Bar Council in their press statement dated 9 July 2025, stating that unexplained delays and alleged interference in judicial affairs is raising concern and the public deserves not only independent judiciary in fact, but also perceived to be independent.[vii]

We are cognizant that the JAC’s recommendations to the prime minister are not binding[viii] pursuant to Article 122B of the Federal Constitution, Section 27 and 28 of the JAC Act 2009, as they are merely selections for the prime minister’s consideration.[ix] However, in light of substantial vacancies in the upper echelons of the judiciary, threatening proper and timely administration of justice and creating unrest among the public, we opine that such discretionary powers should be exercised in the presence of a valid and sound reason in the country’s best interest.

Allegation of Interference with Judicial Appointments

Public allegations suggest there is interference in recent judicial appointments, including concerns about the integrity of certain candidates under consideration. While the Attorney General’s Chambers, in its media statement dated 8 July 2025, clarified that such allegations remain unproven and under investigation,[x] we opine that the damage to public perception has already set in.

Should any allegations ultimately be substantiated, they would mark a serious violation of the JAC Act 2009 and a breach of constitutional duty. The shadows of the 1988 Judicial Crisis and the 2008 VK Lingam episode should remain as vivid and enduring reminders of the importance of judicial independence and institutional safeguards.[xi] 

The rule of law must prevail. 

The UMLS 25/26 urges the following:

The Prime Minister’s Office and relevant authorities are urged to provide clarifications on the status of judicial appointments, including whether the JAC’s recommendations have been received, whether there are legally justifiable reasons for any delay or rejection, and what the anticipated timeline for finalising appointments is. Any deviation from the JAC’s recommendations, particularly for top judicial posts, should be accompanied by compelling, transparent reasons grounded in law.

Constitutional compliance and institutional restraint have to be reaffirmed by all parties involved in the judicial appointment process. This is vital to avoid any perception of politicisation of the judiciary. We emphasise that Section 23 of the JAC Act 2009 must be upheld as the primary statutory benchmark for the evaluation and selection of candidates, taking into account that the integrity, competence, experience, and impartiality of judges must form the basis of all appointments.[xii]

Conclusion 

The rights of every Malaysian, the future of the legal fraternity, and most importantly, judicial independence hang in the balance as time passes. We emphasize the importance of a judiciary without interference, in line with the doctrine of separation of powers and maintaining the spirit of our constitutional democracy. We will not remain inactive while the rule of law is put to the test. The UMLS 25/26 once more urges the public, legal professionals or not, to defend and stand up for the integrity of our judiciary, as we must not remain stagnant and silent, for this will only perpetuate a justice system weakened by judicial interference.

Disclaimer:

The views and opinions expressed in this press statement do not necessarily reflect the official position of the Faculty of Law, Universiti Malaya, and Universiti Malaya respectively. The UM Law Society only intends to provide our collective view on this issue from an academic legal perspective. 

University of Malaya Law Society (UMLS) 25/26

14 July 2025

Email: lawsocietyum@gmail.com

Website: www.umlawsociety.com 

“The Will To Do, The Soul To Dare”

[i] [2017] 3 MLJ 561, [90].

[ii] YAA Tun Tengku Maimun binti Tuan Mat. (8 January 2025). Speech by the Chief Justice of Malaysia on the Occasion of the Opening of the Legal Year 2025. Retrieved from <https://www.malaysianbar.org.my/cms/upload_files/document/OLY%20Speech%202025%20[Chief%20Justice%20of%20Malaysia].pdf>. Site accessed on 13 July 2025.

[iii] Judicial Appointments Commission Act 2009 (Act 695) (Malaysia), s 27.

[iv] Judicial Appointment Commission (JAC). Statistics on Post and Vacancies of Supreme Court Judges. Retrieved from <https://www.jac.gov.my/en/pelantikan/statistics>. Site assessed on 13 July 2025. 

[v] Lopez, L. (8 July 2025). Deepening Crisis in Malaysia Over Top Judges’ Appointments Poses Stern Political Test for Anwar, CNA. Retrieved from

<https://www.channelnewsasia.com/asia/malaysia-judiciary-crisis-judges-political-test-anwar-ibrahim-5225981>. Site assessed on 13 July 2025.

[vi] Judicial Appointments Commission Act 2009 (Act 695) (Malaysia), s 21 – s 23.

[vii] Mohamad Ezri b Abdul Wahab. (9 July 2025). Press Release: Dispelling Misconceptions in the Walk to Safeguard Judicial Independence. Malaysian Bar. Retrieved from <https://www.malaysianbar.org.my/article/news/press-statements/press-statements/press-release-dispelling-misconceptions-in-the-walk-to-safeguard-judicial-independence-on-14-july-2025>. Site accessed on 13 July 2025.

[viii] ‘JAC nominations not legally binding unless Constitution amended’. MalaysiaKini. Retrieved from <https://m.malaysiakini.com/news/748916>. Site accessed on 13 July 2025.

[ix] Judicial Appointments Commission Act 2009 (Act 695) (Malaysia), s 21(1)(a).

[x] Jabatan Peguam Negara. (8 July 2025). Media Statement: Desakan Penubuhan Suruhanjaya Siasatan dan Jawatankuasa Pilihan Parlimen Berhubung dengan Pelantikan dalam Badan Kehakiman. Retrieved from <https://www.agc.gov.my/agcportal/common//uploads/publication/611/2025_07_08_KENYATAAN%20MEDIA%208%20JULAI%202025.pdf>. Site accessed on 13 July 2025.

[xi] Aniza Damis. (24 February 2008). The dawn of a new beginning. The Malaysian Bar. Retrieved from <https://www.malaysianbar.org.my/article/news/bar-news/news/the-dawn-of-a-new-beginning>. Site accessed on 13 July 2025. 

[xii] Judicial Appointments Commission Act 2009 (Act 695) (Malaysia), s 23.

Photo Credits to https://www.straitstimes.com/global