The Fading Beacon: Upholding Rule Of Law And Judicial Independence In Malaysia

Rule of Law stands as a cardinal principle that safeguards individual rights and liberties in a democratic society. Judicial independence is essential in the context of the Rule of Law because it enables courts to review executive and legislative actions without fear.[i] The judiciary needs to be free to decide cases without interference, inducements, threats, or pressure from any source. These intricately linked concepts form the basic features of our Federal Constitution (“FC”).[ii]

Regrettably, there are certain executive actions revolving around the judiciary which raise questions about whether the Rule of Law and Judicial Independence remain central to the Malaysian constitutional framework or is merely a rhetorical concept. The University of Malaya Law Society (UMLS) 2024/2025 issues this statement as an ending note of its tenure to firmly assert and reaffirm the indispensable role of the Rule of Law and Judicial Independence in Malaysia. 

The Erosion of Public Confidence Due to Executive Actions

Driven by the concept of supremacy of law over arbitrary power, the judiciary maintains the judicial review function to ensure all executive and legislative actions are exercised within the boundaries of law.[iii] As highlighted by Raja Azlan Shah FCJ:[iv]

“Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression.”

The courts are not only the guardian of constitutional supremacy but also the visible instrument of the rule of law. However, for the judiciary to fulfill its constitutional role, it must  command public confidence.[v] Sadly, there are incidents happening which erode the public confidence in the judiciary.

DNAA / DAA Decisions

For the rule of law to function effectively, judicial reasoning must be comprehensible and accessible, not only to lawyers and judges, but to the lay public whose lives are governed by the law.[vi] As Chief Justice Tun Tengku Maimun Tuan Mat aptly observed during the Opening of the Legal Year 2023:[vii]

“Only with transparency in its proceedings may the judiciary be able to earn and keep residual long-term public trust. In my opinion, a key component of transparency is accessibility.”

This principle of transparency and accessibility was severely tested in Public Prosecutor v. Ahmad Zahid Hamidi.[viii] A discharge not amounting to an acquittal (“DNAA”) was granted to Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi for all of his 47 charges. While the Attorney-General’s Chambers (“AGC”) have prosecutorial discretion, the lack of any detailed public explanation raises speculation and erodes public confidence in judicial integrity. 

The public, lacking legal knowledge regarding the difference of the constitutional roles of the Attorney-General and the Judiciary, mistakenly blames the judiciary for this outcome. The judiciary was forced into a corner, a situation that even the Chief Justice, Tun Tengku Maimun Tuan Mat, publicly addressed in her keynote speech at the Opening of the Legal Year 2024. Her Ladyship had to clarify that when the prosecutor decides to withdraw charges, the judiciary has only two options of either granting an DNAA or a discharge amounting to an acquittal (“DAA”). Despite how tied the Judiciary’s hands are, the aftermath of public opinion still falls on the judiciary. It was stated by Her Ladyship that:[ix] 

“And yet, when a charge is withdrawn, the Judge making the only available consequential orders is painted as corrupt, sometimes as incompetent or sometimes both. What the public fails to understand is that the person responsible for that decision is the Public Prosecutor and not the Courts. It is often the Courts that are chastised for such decisions and this erodes public confidence in the judicial system.”

Disappointingly, this is not a singular incident but rather the beginning of a trend of DNAA / DAA decisions issued during the current administration. During 2024, there were another 2 counts of DNAA / DAA granted to high-profile individuals.[x]

Again, the judiciary was left in the cold as the executive failed to provide any substantive explanation to the public regarding these incidents.

Official Secrets Act 1957– a Mechanism of Protecting National Secrets or The Executive’s Cop-Out Mechanism? 

One of the limited explanations given by the Attorney-General’s Chambers explained that they were unable to continue with the charges due to important evidence remaining confidential due to the Official Secrets Act 1957 (“OSA”). However, the reality is that, while government documents remain classified under the OSA, they can be declassified for prosecutorial purposes according to Section 2C of the OSA.[xi] This is not a mere legal truth, but it is also what is practiced by prosecutors who have the will to prosecute.[xii] 

Former Attorney-General, Tan Sri Tommy Thomas, in an interview with Malaysiakini, shed light on the prosecutorial process, mentioning that this procedural barrier can easily be overcome by approaching the relevant Ministers in requesting for declassification.[xiii] Therefore, the reasons given by the Attorney-General Chambers, from a legal and practical perspective, seem unsatisfactory.

Addressing Attacks on the Chief Justice’s Call for Reform of the JACA

The judiciary, being the backbone of Malaysia's democratic system, also faced unwanted attacks from high-profile public figures. When the Chief Justice advocated to remove the Prime Minister’s role in judicial appointments, Her Ladyship’s statement was miscategorised by ill-intentioned parties. Former law minister, Datuk Seri Mohamed Nazri Abdul Aziz, described Her Ladyship’s statement as “insinuating political interference in the judiciary.”[xiv] Relevant portions of Her adyship’s speech is reproduced below:[xv]

“The Judicial Appointment Commission (“JAC”) serves as an institutional safeguard to enhance the transparency, integrity and merit-based selection of candidates for judicial office. While appointments ultimately remain a prerogative exercised by the Prime Minister within the constitutional structure, the JAC plays a pivotal role in identifying and assessing candidates through a structured and rigorous evaluation process including assessing integrity, competence, experience and industriousness; ensuring that only the most qualified individuals are selected for judicial office.

Of late, there have been proposals to amend the Judicial Appointments Commission Act 2009 and the Federal Constitution to remove the role of the Prime Minister in the appointment of judges. Such changes in my view, would reinforce the impartiality of the selection process, ensuring that judicial appointments remain firmly grounded on merit and free from any perception of political influence.”

It is important to understand the context of the Chief Justice’s statement. The statement was made against the backdrop of what the judiciary faced throughout the years. The judiciary had slowly recovered into becoming an independent and reliable institution from the 1988 Judicial Crisis. That 1988 Judicial Crisis highlights the peak of executive interference that dismantled the concept of separation of powers in Malaysia. Against that backdrop, it is not only vital, but necessary to reduce executive interference in the selection of judges. With that intention – the JACA came into place. The recommendation to remove the Prime Minister’s role would further “reinforce the impartiality of the selection process, ensuring that judicial appointments remain firmly grounded on merit and free from any perception of political influence.’[xvi] This reform remains vital as while the JACA is in place, the discretion of appointing judges still lies in the Prime Minister’s hand, who is bound to accept the recommendations from the JAC.[xvii]

While in most instances silence is golden, it does not apply when the leader of one of the three branches of government is being attacked. The current government's failure to provide any explanation towards the unwarranted attacks to the Chief Justice is truly regrettable.

The Need for Consistent Executive Actions 

While UMLS applauds the effort of the current administration to look into potential reforms of the JACA,[xviii] and its efforts to uphold its constitutional position,[xix] UMLS must point out the inherent hypocrisy in the lack of executive practices that fully complement the role of the JAC. Instances of significant delays in appointment of vital judge roles,[xx] long vacancies of the JAC resulting in a lack of quorum,[xxi] and unexpected appointments of judges,[xxii] raises speculation towards the judicial appointment process. In light of no explanations given from the executive, any speculation only translates to unwanted damage and criticism to the commission and the judiciary.

Delays in Crucial Judicial Extensions

The most concerning aspect till date would be speculations regarding the soon-to-be vacant judge positions. Tun Tengku Maimun, the Chief Justice, Tan Sri Abang Iskandar Abang Hashim, the president of the Court of Appeal, and Tan Sri Nallini Pathmanathan, the Federal Court Judge, will face their term limitations soon, reaching the age of 66.[xxiii] While they are still eligible for a 6-months extension, [xxiv] there had been no news on whether their terms will be extended, despite clear efforts of the JAC in recommending their extensions.[xxv] All three justices have been recognised to possess the needed merits in securing the extension as they exemplify qualities of “unwavering judicial independence and integrity, upholding the rule of law without fear or favour, administrative competence, public credibility, and a deep commitment to constitutional principles and human rights.”[xxvi]

The executive’s silence regarding the delays only invites speculation because, first, on an objective assessment of merits, this extension would a non-contentious decision; and second, extensions had already been given to other judges facing the similar situation,[xxvii] but not to the judges in the top two positions of the apex courts. 

Therefore, unwarranted questions may arise in the public’s mind: Why is the Prime Minister not considering the extension? Did the JAC have better recommendations? Or does the Prime Minister have better candidates in mind? All these questions ultimately do not contribute in any way, shape, or form to improving the public perception of the judiciary. 

Dato Seri Anwar Ibrahim’s Call for Immunity

During 2024, the United States Supreme Court ruled that the acting president of the United States of America enjoys “absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority”.[xxviii] Similarly in Malaysia, an application was made to the Courts by the current Prime Minister to clarify whether a sitting Prime Minister enjoys qualified immunity from civil suits under our FC.[xxix] 

While the Prime Minister claims that this application was “never been about seeking personal immunity or escaping legal scrutiny,”[xxx] the timing and context of such an application is suspicious as the application was made when he was about to face his civil suit. This suit potentially sets a dangerous precedent of public officials seeking immunity from acts done prior to office. Moreover, if the Prime Minister is committed to ensuring that public authorities will not hide behind the barrier of immunity, he should request the Attorney-General to intervene in these proceedings to ensure the nation’s public interest is safeguarded.

While the High Court had rejected Dato Seri Anwar’s application, the judgement was set aside by the Court of Appeal and the merits of such legal questions would be further discussed in the Courts. While UMLS refrains from discussing ongoing court proceedings, a reminder must be made that the FC was drafted to protect individuals’ rights by limiting the authorities’ power, not the other way around.[xxxi] Interpreting the FC in a way of granting public authorities immunity directly goes against the spirit of our constitution. Moreover, the concept of immunity contradicts the Equality principle housed under Article 8(1) of the FC.[xxxii] As Justice Roz Mawar Rozain stated:[xxxiii] 

“Article 8(1) of our Federal Constitution does not operate to immunise individuals from civil liability. Rather, it ensures that all persons - including public office holders - are equally subject to the rule of law.”

Another notable issue is that these applications are made by invoking Articles 39, 40  and 43 of the FC,[xxxiv] yet those provisions are to delimit government functions, and the concept of immunity has little to no constitutional basis from those provisions.[xxxv] Assuming arguendo that there are merits for qualified immunity for an acting Prime Minister, the immunity requested by the Prime Minister relates to actions prior to his term in office, not during his tenure. Even in the United States jurisprudence, where the President holds even greater authority within their constitution,[xxxvi] the Supreme Court ruled that the President’s immunity is limited to official acts within the scope of the United States Constitution, not for all actions.[xxxvii] 

The Prime Minister, who took an oath “to preserve, protect and defend the Constitution”,[xxxviii] has a legal obligation to uphold the values reflected in the FC. At this point, a true reflection must be made on whether this application is done with a bona fide intention in advancing Constitutional Law, or an attempt to seek immunity and escape legal proceedings. As AV Dicey advised: “No man is above the law, and everyone, whatever his rank or condition, is subject to the ordinary law of the realm.”[xxxix]

Conclusion: Reflecting the Past and Hopes of the Future

After instances of the 1988 Judicial Crisis, and the 2008 VK Lingam Tape Scandal, the public had lost its confidence in the democratic system in Malaysia.[xl] The aftermath of these incidents “gave birth to a number of other shameful tendencies in the judiciary that are too painful to acknowledge.”[xli] Given the judiciary is slowly recovering from the judicial winter of 1988, the government must hit the iron when it’s hot and engage in necessary reforms to the JAC, and act wisely regarding potential judicial extensions / appointments with urgency. Any efforts contrary to this seem counterproductive to the prospects of strengthening the judiciary.

Another incident worth considering would be when the then-Opposition Leader, Dato Seri Anwar Ibrahim, released a statement regarding the infamous sodomy trial, criticising the trial to be politically motivated and the outcome being predetermined. Dato Seri mentioned that: “...the court’s integrity has been completely compromised and bears all the classic symptoms of a show trial where the script has been effectively written and the outcome a foregone conclusion.”[xlii] This shows that no one understands the significance of the Rule of Law more than the current Prime Minister himself.

Thus, UMLS would like to reiterate our similar stance that calls for reforms remain rhetoric if no actions are being done. Given the experience of the past, UMLS sincerely hopes that the Prime Minister, who claimed to be aggrieved by abuse of power, would in his best ability ensure the Rule of Law in our nation is being upheld. Urgent and dire efforts must be made by the government to ensure the Rule of Law is not only being practiced by the executive, but further being upheld with necessary legislative reforms in strengthening the judiciary. While certain delays had happened, it still had yet gone into a state of irrecoverability. Time is of the essence for the government to right their wrongs.

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. 

UMLS would also like to acknowledge the piece by Datuk Malik Imtiaz Sarwar on The Edge Malaysia titled “Opinion: A need for an explanation”  for inspiring parts of this press statement.

University of Malaya Law Society (UMLS) 24/25

16 June 2025

Email: lawsocietyum@gmail.com

Website: www.umlawsociety.com 

“The Will To Do, The Soul To Dare”

[i] Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2018] 3 MLJ 417, 470; Bingham, T. (2010). The Rule of Law. London, UK: Penguin Books, 71–72.

[ii] Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356, [149]; Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2018] 3 MLJ 417, [29]–[44]; Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561, [90].

[iii] Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 3 MLJ 333, 348 (Gopal Sri Ram FCJ).

[iv] Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135, 148 (Raja Azlan Shah FCJ).

[v] Tengku Maimun binti Tuan Mat. (2024, Jan 15). Speech by the Right Honourable the Chief Justice of Malaysia on the Occasion of the Opening of the Legal Year 2024. Malaysian Bar, [11]. Retrieved from <https://www.malaysianbar.org.my/cms/upload_files/document/OLY%202024%20-%20Speech%20by%20the%20Chief%20Justice%20(15%20Jan%2024).pdf>. Site accessed on 13 June 2025.

[vi] Bingham, T. (2010). The Rule of Law. London, UK: Penguin Books, 37–38.

[vii] Tengku Maimun binti Tuan Mat, T. (2023). Speech by the Right Honourable the Chief Justice of Malaysia at the Opening of the Legal Year 2023. Federal Court of Malaysia. Retrieved from <https://www.kehakiman.gov.my/sites/default/files/documents/teks_ucapan/2023/Chief%20Justice%20-%20OLY%20Speech%202023.pdf>. Site accessed on 13 June 2025.

[viii] Bernama. (2023, Sept 4). Ahmad Zahid granted discharge not amounting to acquittal for all 47 charges. Astro Awani. Retrieved from <https://international.astroawani.com/malaysia-news/ahmad-zahid-granted-discharge-not-amounting-acquittal-all-47-charges-435768>. Site accessed on 13 June 2025.

[ix] See footnote 5, [36].

[x] Kenneth Tee. (2024, Nov 27). Najib and Irwan Serigar granted DNAA in RM6.6b IPIC CBT case after trial stalled since 2018. Malay Mail. Retrieved from <https://www.malaymail.com/news/malaysia/2024/11/27/najib-and-irwan-serigar-granted-dnaa-in-rm66b-ipic-cbt-case-after-trial-stalled-since-2018/158163>. Site accessed on 13 June 2025; Farah Solhi. (2024, 19 Dec). "Rosmah Freed from 17 Money Laundering, Tax Evasion Charges Involving RM7m.  The Malaysian Reserve Retrieved from <https://themalaysianreserve.com/2024/12/19/rosmah-freed-from-17-money-laundering-tax-evasion-charges-involving-rm7m/>. Site accessed on 13 June 2025.

[xi] Official Secrets Act 1972 (Act 88) (Malaysia) s 2C.

[xii] Pendakwa Raya v Ahmad Zahid Hamidi (High Court Kuala Lumpur, Collin Lawrence Sequerah J, 31 Oct 2022, Criminal Trial No. WA-45-7-2018, Unreported).

[xiii] Chai, J., & Gunasegaram, P. (2022, Sep 5). Tommy Thomas: Why SRC was picked as first 1MDB-related court case. Malaysiakini. Retrieved from <https://www.malaysiakini.com/news/634589> . Site accessed on 16 June 2025; Tommy Thomas (2024, Dec 10). Interview–Tommy Thomas: Setting the Record Straight. Interviewed by Malaysia Kini. Retrieved from <https://www.youtube.com/watch?v=KD3qyGUELmc>. Site accessed on 12 June 2025.

[xiv] Minderjeet Kaur. (2025, Apr 14). Nazri slams Chief Justice's 'political interference' jibe, demands proof. Free Malaysia Today. Retrieved from <https://www.freemalaysiatoday.com/category/nation/2025/04/14/nazri-slams-chief-justices-political-interference-jibe-demands-proof> . Site accessed on 12 Jun 2025.

[xv] Tun Tengku Maimun binti Tuan Mat (Jan 8, 2025), Speech by the Right Honourable the Chief Justice of Malaysia at the Opening of the Legal Year 2025. Malaysian Bar. Retrieved from  <https://www.malaysianbar.org.my/cms/upload_files/document/OLY%20Speech%202025%20%5BChief%20Justice%20of%20Malaysia%5D.pdf> Site accessed 13 June 2025.

[xvi] Ibid.

[xvii] Ida Lim. (2025, May 10). What happens when PM gets recommended names for judges? Ex-JAC members share experiences. Malay Mail. Retrieved from <https://www.malaymail.com/news/malaysia/2025/05/10/what-happens-when-pm-gets-recommended-names-for-judges-ex-jac-members-share-experiences/176291>. Site accessed on 13 June 2025.

[xviii] FMT Reporters. (2025, Apr 9). Gov’t to review Judicial Appointments Commission Act, says Anwar. Free Malaysia Today. Retrieved from <https://www.freemalaysiatoday.com/category/nation/2025/04/09/govt-to-review-judicial-appointments-commission-act-says-anwar>. Site accessed on 13 June 2025.

[xix] Mohamad Al As. (2025, Apr 9). [UPDATED] Putrajaya will defend JAC Act in court, will review framework: Anwar. New Straits Times. Retrieved from <https://www.nst.com.my/news/nation/2025/04/1199538/updated-putrajaya-will-defend-jac-act-court-will-review-framework-anwar>. Site accessed on 13 June 2025.

[xx] Malik Imtiaz Sarwar. (2025, 22 May). Opinion: A need for explanation. The Edge Malaysia. Retrieved from <https://theedgemalaysia.com/node/756268>. Site accessed 13 June 2025; Mohamad Ezri b Abdul Wahab. (2024, Dec 21). Press release: There is an urgent need to appoint a new Chief Judge of Malaya. Malaysian Bar. Retrieved from <https://www.malaysianbar.org.my/article/news/press-statements/press-statements/press-release-there-is-an-urgent-need-to-appoint-a-new-chief-judge-of-malaya> . Site accessed on 13 June 2025; 

[xxi] V Anbalagan. (2024, Sept 14). Judicial appointments in limbo as commission lacks quorum, says source. Free Malaysia Today. Retrieved from <https://www.freemalaysiatoday.com/category/nation/2024/09/14/judicial-appointments-in-limbo-as-commission-lacks-quorum-says-source>. Site accessed on 13 June 2025.

[xxii] Malaysiakini. (2024, Nov 5). Terrirudin to retire as AG on Nov 11, set to become Federal Court judge. Malaysiakini. Retrieved from <https://www.malaysiakini.com/news/724912>. Site accessed on 13 June 2025.

[xxiii] Federal Constitution (Malaysia) art 125(1).

[xxiv] Ibid.

[xxv] Hafiz Yatim. (2023, Jun 16). Constitutional Clock Constitutional clock ticks for Chief Justice, top judges' extensions. The Edge Malaysia. Retrieved from <https://theedgemalaysia.com/node/758628>. Site accessed on 16 June 2025.

[xxvi] Anand Raj. (2025, Jun 5). Judicial Extensions, Promotions and Appointments: The Nation Awaits. The Malaysian Bar. Retrieved from <https://www.malaysianbar.org.my/article/news/press-statements/press-statements/press-release-judicial-extensions-promotions-and-appointments-the-nation-awaits>. Site accessed on 16 Jun 2025.

[xxvii] See footnote 25.

[xxviii] Trump v. United States, 603 U.S. 593 (2024), 5–43.

[xxix] Tarrence Tan. (2025, Jun 4). Anwar: It was never about immunity. The Star. Retrieved from <https://www.thestar.com.my/news/nation/2025/06/04/anwar-it-was-never-about-immunity>. Site accessed on 16 June 2025.

[xxx] Ibid.

[xxxi] Ali Mohamed, A. S. A., Ramalingam, C. L., & Ahmad, M. H. (2021). The Eclipse of Basic Structure Doctrine: An Assessment of Clash Between Three Titans and Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor. Malayan Law Journal Articles, 1, 205.

[xxxii] Federal Constitution (Malaysia) art 8(1).

[xxxiii] Muhammed Yusoff Rawther v Dato’ Seri Anwar bin Ibrahim [2025] MLJU 1626, [15].

[xxxiv]  Federal Constitution (Malaysia) art 39, 40, 43.

[xxxv] Ganesan, G. K. (2025, May 30). Is a Prime Minister Immune from Civil Suits?. GK Legal. Retrieved from <https://www.gkg.legal/is-a-prime-minister-immune-from-civil-suits/>. Site accessed on 16 Jun 2025.

[xxxvi] Constitution (United States of America) art 2.

[xxxvii] See footnote 28.

[xxxviii] Public Prosecutor v Aluma Mark Chinonso (Nigerian) and another appeal [2020] MLJU 694, [22]; Federal Constitution (Malaysia) Sixth Schedule.

[xxxix] Dicey, A.V. (1982) [1885]. Introduction to the Study of the Law of the Constitution. London: McMillan and Co.

[xl] Wu Min Aun. (1999). The Malaysian Judiciary: Erosion of Confidence. Australian Journal of Asian Law, 1(2), 123-150. Retrieved from <https://search.informit.org/doi/pdf/10.3316/informit.627725575930665>. Site accessed on 13 June 2025.

[xli] Sulhi Azman. (2018, 16 Aug). Judiciary yet to fully recover from 1988 crisis. The Edge Malaysia. Retrieved from <https://theedgemalaysia.com/article/judiciary-yet-fully-recover-1988-crisis-%E2%80%94-don>.Site accessed on 13 June 2025.

[xlii] Anwar Ibrahim. (2011, Aug 22). Anwar Ibrahim’s Sodomy Trial in Full. LoyarBurok. Retrieved from <https://www.loyarburok.com/2011/08/22/anwar-ibrahims-sodomy-trial-statement-in-full/>. Site accessed on 13 June 2025.

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