Restoring the Independence and Integrity of Malaysia’s Judiciary: Proposals for Reform and Challenges Ahead
Proposed changes to the process by which judges in Malaysia are appointed could help revive the independence and credibility of a judiciary undermined by years of regressive constitutional and legal adjustments. While some of the proposed reforms are needed, these alone may not be sufficient. Crucially, it is not certain that these reforms will come to pass, and without a corresponding shift in legal and political culture, the reforms may not produce the desired result – write Jaclyn L Neo and Wilson Tay Tze Vern.
Since the new Pakatan Harapan or ‘Pact of Hope’ (PH) alliance took power, after Malaysia’s momentous 14th general election on 9 May 2018 produced a change of government at federal level for the first time since Malaysia’s independence in 1957, there has been a flurry of reform proposals. Among these are reform initiatives that could go towards restoring public trust in the judicial and legal institutions, which was one of PH’s explicit promises set out in its election manifesto. Such initiatives are much-needed to restore and strengthen the independence, integrity, and credibility of the Malaysian judiciary, which often finds itself at the centre of fierce constitutional controversy. Here, we argue that the current transitional period represents a great opportunity for reform to strengthen judicial independence and restore public confidence in the judiciary, but some institutional challenges remain.
Political Contestation and the Judiciary
The Malaysian courts have long been an arena for the contestation of sensitive political issues which carry profound implications for individual rights. This goes hand-in-hand with the constitutional role of the judiciary – or at least the superior courts – as a key custodian of the rule of law and the final arbiter of what Malaysia’s legally supreme Federal Constitution requires. The courts’ power to review the constitutionality of legislation, and the legality of executive and legislative action, further accentuates the importance of securing judicial independence and integrity in Malaysia. Judicial independence and public confidence suffered greatly after the 1988 constitutional crisis, which is often analysed as an institutional struggle between the executive and the judiciary. It led to the dismissal of three justices of Malaysia’s highest court – including the then Lord President – following a highly dubious disciplinary proceeding. Judicial prestige and independence were also eroded by several constitutional amendments which attempted to circumscribe the judicial power, to which subsequent courts acquiesced until recently. In the interim, the judiciary struggled with decades of scandal, shady dealings and doubtful judgments, which further eroded public trust in that institution.
A pressing concern facing the Malaysian judiciary is the process by which judges are appointed to the highest courts and the top judicial offices.
Arguably the most pressing concern facing the Malaysian judiciary is the process by which judges are appointed to the highest courts and the top judicial offices. Under Prime Minister Abdullah Badawi, who led the country from 2003 – 2009, efforts were made to re-establish ‘a credible, effective and independent judiciary’. Among these efforts were the formation of a Judicial Appointments Commission (JAC) in 2009 to select candidates for judicial positions at High Court level and above for the prime minister’s consideration. However, these have not been effective, not least because the constitutional and legal position continues to be that the ultimate choice of appointment remains with the Prime Minister. The Yang di-Pertuan Agong (King) of Malaysia appoints judges on the advice of the Prime Minister, who is constitutionally merely required to ‘consult’ the Conference of Rulers and certain senior members of the judiciary (depending on the position). Furthermore, the Prime Minister directly appoints five out of nine positions on the JAC itself. This continues to give the Prime Minister an outsized influence over judicial appointments. Indeed, in 2015 a Court of Appeal judge alleged that he was not promoted to the Federal Court (the apex court) despite having been nominated by the JAC, because he did not receive then Prime Minister Najib Razak’s approval.
There is a proposal that candidates for judicial positions be vetted by a Parliamentary Select Committee (PSC) before being forwarded to the King for appointment.
Further controversy was stirred in 2017 when the Najib administration extended the tenure of outgoing Chief Justice of Malaysia and President of the Court of Appeal – the two highest office-holders in the Malaysian judicial hierarchy – beyond their constitutionally-mandated retirement age by appointing them as ‘additional judges’ of the Federal Court. This highly extraordinary manoeuvre triggered several constitutional challenges, including by the Malaysian Bar and current Prime Minister Tun Dr Mahathir Mohamad. These cases were pending at the time of the May general elections.
However, these judges’ positions became untenable after PH’s electoral success and Dr Mahathir’s return as Prime Minister, and they resigned in June 2018. Their resignation was supposed to be effective from 31 July 2018. However, the PH government immediately appointed Justice Richard Malanjum as the new Chief Justice, and he was sworn in on 11 July 2018. Although questions have been raised regarding the constitutional propriety of this sequence of events, the appointment has since undoubtedly become a legal fact. In addition, the Federal Court declined to rule on the constitutional questions surrounding the controversial re-appointments in 2017, holding that the matter had become ‘academic’.
Proposals for Reform
Since the PH government took over, several proposals have been mooted to reform the judicial appointments process and the administration of justice to strengthen judicial independence. First, Prime Minister Mahathir has suggested that candidates for judicial positions be vetted by a Parliamentary Select Committee (PSC) before being forwarded to the King for appointment. This reform would not require a constitutional amendment and could be achieved through legislation. Presumably, the proposal seeks to realize one of PH’s election promise, which was to remove the Prime Minister’s power to influence judicial appointments, ‘so that there can be no abuse of power’. This was however criticised by NGOs concerned about the possibility of appointing judges who are effectively beholden to politicians. While the proposal is not clear on the exact composition of such a committee, traditionally such committees reflect the relative parliamentary strength of political parties. As the prime minister normally heads the party with the largest representation in parliament, his/her party is likely to dominate any such committee, potentially undermining its added value. It is also not clear how the proposed PSC would interact with the work of the JAC. In recognition of these concerns, civil society groups have instead suggested enhancing the status and composition of the JAC, and elevating the JAC to the status of an independent constitutional body.
It is not clear how the proposed PSC would interact with the work of the JAC.
Secondly, the PH government also recently proposed that the retirement age of judges be extended to 70 (from the current 66). This brings Malaysia in line with the retirement age in Australia and the United Kingdom, though it is not clear how this would strengthen judicial independence. The proposal would also require an amendment of the Federal Constitution; cross-party support would be necessary as the PH government does not currently have the two-thirds majority in Parliament to pass for constitutional amendments. It is doubtful at the moment how much cross-party support the proposal would receive, particularly in the Dewan Negara (Upper House) where, at present, appointees of the previous government still command a majority.
The needed cross-party support to approve the proposed reforms may not exist.
Third, there is a proposal to transfer the Office of the Chief Registrar to a new Law and Judicial Ministry, which will be separate from the Prime Minister’s Department (PMD), as part of a planned restructuring of Malaysia’s powerful PMD. The Office of the Chief Registrar administers Malaysia’s network of courts and the entire subordinate judiciary, but is currently parked under the PMD for administrative and budgetary purposes. This is a clearly unsatisfactory position from the perspective of judicial independence. Indeed, the JAC itself is also similarly located under the administrative purview of the PMD. Under the proposed reform exercise, the JAC will become fully independent and accountable only to Parliament. The restructuring of the PMD is a purely administrative exercise and could be implemented if the necessary political will is present.
Necessary but not sufficient proposed reforms
If given effect, these proposals would go some way towards strengthening judicial independence. However, such institutional reforms will only partly address the issue of restoring public confidence, especially in light of recent revelations of interference from within the ranks of the judiciary with other judges’ decision-making autonomy. For instance, a sitting Court of Appeal judge revealed recently that he had been severely reprimanded and ‘put in cold storage’ by ‘a top judge’ over his dissenting judgment in a case involving unilateral religious conversion of minors, and that the composition of judicial panels was manipulated to achieve certain outcomes.
Any institutional reforms will only partly address the issue of restoring public confidence in the judiciary.
Indeed, any judicial reform will require a transformation in political as well as legal culture in Malaysia. A somewhat ironic feature of the current situation is that the present administration is led by Dr Mahathir Mohamad – the very same statesman who, in his first stint as Prime Minister (albeit leading a different political coalition), was widely held responsible for the damage done to the judiciary in 1988 and thereafter. Depending on one’s political inclination, then, one could interpret the present deliberations as either an opportunity for a ‘reformed’ elder statesman to make amends for the past, or a ‘reform agenda’ doomed from the start by the personality of its leadership. Indeed, there have been concerns regarding the present government’s commitment to the separation of powers and independence of the judiciary after reports surfaced that following the May elections, one of Dr Mahathir’s political allies, Tun Daim Zainuddin, who was also chairman of the unelected Council of Eminent Persons (CEP), had summoned the then Chief Justice and President of the Court of Appeal and demanded their resignation. As noted above, these judges subsequently resigned. Although the circumstances under which this occurred were rather extraordinary, one should be wary of any practice that suggests that the executive or its representatives could pressure judges to resign.
Moving forward, with a large number of controversial cases upcoming, some with a particularly strong political shade, the stakes for judicial independence are very high. Leading figures from the previous administration, including former Prime Minister Najib Razak and current United Malay National Organization (UMNO) President Ahmad Zahid Hamidi, have been charged with serious criminal offences that could result in lengthy prison sentences and severely disrupt the once-mighty UMNO. Furthermore, numerous cases presently on the docket of the Malaysian judiciary will have profound implications regarding the public law significance of proclamations by religious bodies, and the constitutionality of further Islamization of the country’s criminal law system, among others. Litigation involving federal-state relations, particularly the distribution of revenues to the resource-rich states of Sabah and Sarawak, is also likely. This is in addition to the judicial review actions involving fundamental liberties, which have become a regular feature of the Malaysian courts’ case-load. There will be no shortage of opportunities for the Malaysian judiciary to demonstrate its independence and calibre as the guardian of the Federal Constitution. The questions now are how far the Malaysian judges will be willing to go in doing so, and how much the new administration in Putrajaya will do (or refrain from doing) to help the judiciary regain its long-lost lustre. In this regard, the proposed reforms to the process of appointment of the judges could enhance the stature of the judiciary, but the ruling coalition’s lack of a legislative majority to pass needed constitutional amendments may well hamper some of these initiatives.
Jaclyn L. Neo is an Associate Professor at the National University of Singapore’s Faculty of Law.
Wilson Tay Tze Vern is a PhD Candidate at the National University of Singapore’s Faculty of Law.