We, the 10 undersigned groups, advocate for the independence of the judiciary, and an end of the role of the prime minister and/or the executive arm of government in the appointment and elevation of judges in Malaysia.
This role also risks compromising the important role the judiciary plays in a democracy, which is to be an effective check on the other branches – the executive and the legislature.
A fair trial is also under threat in cases where the prime minister is a party in his personal capacity or otherwise, if the prime minister has the power to choose, appoint and elevate judges to higher positions.
Malaysia’s new judicial crisis
Malaysia may be facing another ‘judicial crisis’, as allegations that Prime Minister Anwar Ibrahim may be appointing judges on his own and not always following the recommendations of the Judicial Appointments Commissions (JAC) have been raised.
To date, Anwar has yet to confirm that all judicial appointments have been done as in line with the recommendation of the JAC, and that he had never appointed any judge who was not recommended by the JAC.
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The ‘Lingam Tape’ scandal of 2007, brought to light concerns about the process of appointing judges, particularly the potential for improper influence by third parties.
This scandal resulted in the stance that the appointment and elevation of Judges ought to be done by an independent body, the JAC, which will then advise the king or inform the prime minister, who will advise the king on judicial appointments.
In any event, following the Judicial Appointments Act 2009 (JAC Act), it was accepted that the JAC shall recommend to the prime minister (regarding judicial appointments and elevations), who will then advise the king.
Until Prime Minister Anwar, there had been no allegation of any past prime ministers acting not in compliance with the recommendation of the JAC.
Why no six-month extension for three?
The recent failure in offering a six-month extension to just three Federal Court judges – Chief Justice Tengku Maimun Tuan Mat (who retired on 1 July), Court of Appeal president Abang Iskandar Abang Hashim (who retired on 2 July) and Federal Court judge Nallini Pathmanathan (who will retire in August) – stands out as odd when other retiring Federal Court judges were offered the post-retirement six-month extension as provided by the Federal Constitution.
Of the eight Federal Court judges due to retire, five have been granted extensions. They are Chief Judge of Malaya Hasnah Hashim (now to retire on 14 November), Chief Judge of Sabah and Sarawak Abdul Rahman Sebli (now to retire in July), Federal Court judge Zabariah Yusof (now to retire on 10 October) and Federal Court judge Hanipah Farikullah (now to retire on 22 November). Federal Court judge Harmindar Singh Dhaliwal, who turned 66 last October, is also serving his six-month extension. Federal Court judge Datuk Abdul Karim Abdul Jalil, who turned 66 in April, was also offered an extension, but chose not to take it.
Thus, the failure to offer six-month extension to the three judges raises questions and suggests interference in judicial appointments.
Did the JAC recommend no extensions for these three? Did the king oppose the extensions? Or was it the prime minister who did not want to grant the three extensions? A lack of transparency keeps everyone in the dark, and suspicions arise that the PM is picking and elevating judges as he pleases.
The law, as it stands now, still gives the prime minister the absolute power to decide on the appointment and elevation of judges. The king is bound to appoint or elevate judges as advised by the prime minister. The king has no power to act contrary to the advice of the prime minister.
Thus, if appointments are done contrary to the recommendation of the JAC, the fault lies with the prime minister alone.
JAC Act’s shortcomings
The JAC Act…intended to leave the selection of judges for appointment and elevation to an independent commission, which will then select and recommend the names of judges to be appointed or elevated to the prime minister, who will then advise the king.
Despite the inadequacies in the JAC Act, including the failure to make it mandatory that the prime minister follow the recommendation of the JAC, past prime ministers seem to have followed the recommendations of the JAC when appointing judges. But now there is concern that the current Prime Minister, Anwar, may have abandoned this good practice and may have appointed or elevated his own chosen people as judges, contrary to the recommendation(s) of the JAC.
There is an urgent need to amend the JAC Act and the Federal Constitution to ensure that the prime minister does what is recommended by the JAC.
Unexplained delay
The first indication that something was amiss may have been the unexplainable delay of about nine months before the vacancy for the position of the chief judge of the High Court of Malaya, which became vacant on 29 February 2024. The position was finally filled on 12 November 2024, when Hasnah was appointed.
So, was the delay caused by the JAC? Or was it because the prime minister refused to accept the JAC’s recommendation? Was Hasnah, who was then appointed Chief Judge of the High Court of Malaya, the prime minister’s own choice or someone recommended by the JAC?
The composition of the JAC is mandatory, and it shall include the chief judge of the High Court of Malaya. As such, in view of the new chief judge’s appointment, the question of the validity of the commission and its decisions is an issue – and hence, the question of the validity of the appointments of 25 judges on 12 November 2024 may be an issue.
Public prosecutor becomes Federal Court judge
The second issue of concern is the appointment of the then sitting attorney general and public prosecutor Ahmad Terrirudin Salleh as a Federal Court judge.
This was different from the situation when another former attorney general, Mohtar Abdullah, was made a Federal Court judge after he had retired.
The difference is that Terrirudin was appointed while he was still a public prosecutor.
It is acknowledged that prosecutors must be able to perform their professional functions without intimidation, hindrance, harassment or other improper interference, even from the government.
Thus, anyone who understands this principle of safeguarding the independence of the public prosecutor would never try to interfere with any sitting public prosecutor by recommending him or her to be appointed as judges. Thus, reasonably the JAC would not have been likely to recommend Terrirudin to become a Federal Court judge when he was still the public prosecutor.
It would not have been an issue if Terrirudin, after he had already retired or ended his term, was considered and recommended by the JAC to be appointed as a judge.
Vacancies galore
The third issue is the fact that there were vacancies for 24 High Court judges, three Court of Appeal judges and two Federal Court judges as at 1 July 2025, and this had been the case since before the Malaysian Bar press statement dated 5 June 2025.
The JAC reasonably will speedily make a recommendation to the prime minister for a judicial appointment whenever there is a vacancy, to ensure such judicial vacancies are speedily filled.
The delay in filling the vacancies must be explained. Was the prime minister unhappy with the JAC’s recommendations? The delay in making judicial appointments will seriously affect the courts and cause trial delays.
Wrong for cabinet to discuss
A recent fourth issue of concern is the fact that the Malaysian cabinet has been discussing the chief justice.
The appointment of a new Chief Justice was raised during the Cabinet meeting but it was not discussed in detail, says Communications Minister Datuk Fahmi Fadzil. – The Star, 3 July 2025
The cabinet should not be even discussing this or even suggesting who should be appointed the next Chief Justice, the head of the Malaysian judiciary.
Chief justice’s concerns
It must be noted that Chief Justice Tengku Maimun did highlight concerns about interference in the independence of the judiciary, reminding Anwar of his position before he became Prime Minister.
Tengku Maimun expressed hope that Anwar as prime minister “will remain true to those comments by continuing to unreservedly remain committed to upholding the cause of judicial independence”.
She said while Malaysia has made great strides in restoring the reputation of its judiciary since 2016, which has resulted in the country being ranked highly in global adherence to rule of law, there are still concerns that the prime minister “still has too much power in the appointment of judges”…
Her comments came five months after concerns were raised over the appointment of former attorney-general Ahmad Terrirudin Salleh as a senior judge. – Malaysia Now, 9 January 2025
Anwar failed to confirm that Terrirudin’s name was recommended by the JAC.
The chief justice did suggest again the removal of the prime minister’s role in the appointment of judges.
The proposed changes to remove the prime minister in the appointment of judges will reinforce the impartiality of the selection process, says Chief Justice Tun Tengku Maimun Tuan Mat.
She said the amendments, which would fall under the Judicial Appointments Commission (JAC) Act 2009 and the Federal Constitution, would ensure judicial appointments remain free from any perception of political influence.
“Of late, there have been proposals to amend the JAC 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,” she said in her speech at the 24th Commonwealth Law Conference in St Julian’s Bay, Malta, today. – New Straits Times, 8 April 2025
We are in support of the proposal to remove the role of the prime minister in the appointment and elevation of judges.
Remove PM’s role
Just a week after Anwar in 2022 came to power, the Conference of Rulers raised concerns about the prime minister’s powers to appoint senior judges. It said the JAC in its present composition had weaknesses, and called for a more balanced composition so that appointments were not biased towards any parties.
“To ensure the independence of JAC in carrying out its responsibilities, I propose that the appointment of its five members should not be made by the prime minister,” Negeri Sembilan ruler Tuanku Muhriz Tuanku Munawir had then said.
“Instead, it should be given to other institutions such as the Malaysian Bar Council, the Sabah Law Society, the Sarawak Bar Association and the Parliamentary Select Committee.” – Malaysia Now, 9 January 2025
To date, the PM has failed to act on the Conference of Rulers’ recommendation.
The JAC is now made up of nine members: five are chosen by the prime minister, and the other four are the chief justice, Court of Appeal president, chief judge of the High Court of Malaya, and the chief judge of the High Court of Sabah and Sarawak.
PM may be a party in court cases
After the conviction of former Prime Minister Najib Razak and the fact that other past prime ministers have been charged and, if not, have been investigated for criminal offences, it no longer wise or safe to allow prime ministers to decide on who should be appointed judges at any level.
There are also cases in court where the prime minister or the person who is (or was) prime minister are parties in court cases.
In the case of current Prime Minister Anwar, he has a case where a former political aide Yusoff Rawther is suing him for sexual harassment or assault.
Former Prime Minister Dr Mahathir Mohamad’s defamation lawsuit against Anwar is also scheduled for hearing on 13-21 August.
Anwar also filed a lawsuit against Terengganu MP Ahmad Amzad on 22 December 2022, after he became PM, and this was settled in March.
Anwar also sued Perak Pas commissioner Razman Zakaria on 5 December 2022 for defamation, though this has now been settled.
In such legal suits where Anwar Ibrahim or any sitting prime minister is before the courts as a party, it is crucial to ensure a fair trial, where judges must be independent and seen to be independent.
Would judges appointed on the advice of the prime minister be seen as independent, more so when the prime minister also has the power and role in elevating these judges in the future?
Likewise, the decisions of the prime minister or his ministers can be subject to judicial review. Again, can we say that a judge appointed on the advice of the prime minister or a judge in the future who could or could not be elevated to higher judicial office on the advice of the prime minister be said or be seen as an independent judge?
To preserve the independence of the Malaysian judiciary, we call for the removal of the prime minister’s role in deciding the appointment and elevation of judges. This is to preserve the independence of the judiciary.
This will also to preserve the role of the judiciary in a democracy to be an effective check on the other branches – the executive and the legislature.
The courts do examine laws passed by the legislature and actions taken by the executive to determine if they comply with the Constitution and the law.
We also call for the Malaysian Federal Constitution to be amended, so that the prime minister be replaced by the JAC, which shall advise the king on the appointment, elevation, post-retirement six-month extension and/or the removal of judges. The prime minister shall have no role with regard to these aspects of the Malaysian judiciary.
We also call for the JAC Act to be amended, among others, to abide with the recommendation of the Conference of Rulers – that there will no longer be any prime minister’s appointees in the JAC.
Charles Hector issued this statement on behalf of the 10 groups listed below:
- Malaysians Against Death Penalty and Torture (Madpet)
- Centre for Orang Asli Concerns (COAC), Malaysia
- Hayat, Malaysia
- North South Initiative (NSI), Malaysia
- Persatuan Amal Progresif, Malaysia
- Saya Anak Bangsa Malaysia (SABM)
- Banglar Manabadhikar Suraksha Mancha (Masum), India
- Haiti Action Committee
- Programme Against Custodial Torture & Impunity (Pacti), India
- Workers Hub For Change (WH4C)
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