By Muhammad Wafiuddin bin Azizi & Mohd Sharen Azli Alzalip
The prolonged vacancy in Malaysia’s top judicial posts following Chief Justice Tengku Maimun Tuan Mat’s retirement on July 2, 2025, ignited a national controversy over judicial independence. With 31 judicial positions vacant and weeks of unexplained delays, the Malaysian Bar organized a historic lawyer’s march on July 14, 2025, demanding transparency and safeguards against executive interference 149. This crisis highlights the fundamental tension between constitutional provisions granting the Prime Minister advisory powers and the imperative of judicial independence. The controversy intensified with speculation that PM Anwar Ibrahim sought to fast-track former Attorney-General Terrirudin Salleh to the Chief Justice position, allegations he vehemently denied following the eventual appointments.
This controversy has affected directly one of the components in the doctrine of basic structure of the Malaysia constitution which is the separation of powers between 3 organs of government: Executive, Legislature and Judiciary. The division of power is important since each arm of government must be independent and must not encroach upon the functions of the other to ensure checks and balances. In this article, we will dive deeper into the constitutional framework of the Malaysian Judiciary. Malaysia’s judicial structure under Article 121 of the Federal Constitution establishes a hierarchy of superior courts which consist of Federal Court (apex court), Court of Appeal and two High Courts (Malaya; Sabah & Sarawak). Article 122(1) on the other hand designates the Chief Justice as head of the judiciary, responsible for administrative leadership and institutional integrity. The appointment mechanism for this crucial position is vested in Article 122B (1) of the Federal Constitution, which stipulates that the Yang di-Pertuan Agong appoints the Chief Justice, acting on the Prime Minister’s advice after consulting the Conference of Rulers.
The power of appointment of the Chief Justice lies with the Judicial Appointments Commission (JAC), which is vested through the 2009 JAC Act, this nine-member body screens candidates. Crucially, four members are senior judges, while the Prime Minister appoints five, including a Federal Court judge and four legal professionals. The issue with JAC is that Despite the JAC’s mandate to recommend candidates based on merit, its role remains advisory and non-binding. As constitutional scholar Shad Saleem Faruqi notes, the Prime Minister retains discretion to “ask for two other names” if unsatisfied with JAC proposals. Of course, this creates an inherent tension; although the commission was established to depoliticize judicial appointments, its recommendations ultimately remain subject to the overriding discretion of the executive as the prime minister is seen as having a majority vote on the picks by the JAC.
In July 2025, the retirement of Chief Justice Tengku Maimun exposed systemic flaws, there is an unprecedented vacancy, with a number of 31 judicial positions unfilled, including 24 High Court judges, resulting in the courts facing years-long trial delays, which threatens access to justice nationwide. There is also executive overreach allegations based on leaked minutes from a May 2025 JAC’s meeting suggesting undue influence in considering Tan Sri Terrirudin Salleh, a former Anwar-appointed Attorney-General for the position of Chief Justice. PM Anwar denied this, but of course the damage to public trust is severe since it would picture “modern day dictatorship” due to lack of check and balance. Due to these flaws, the Malaysian Bar on July 14, has taken an initiative to conduct a peaceful protest. Figures across the political spectrum, including Nurul Izzah Anwar, called for the prompt appointment of qualified judges, the release of JAC minutes, a Royal Commission to investigate judicial interference, and the expedited filling of judicial vacancies.
This crisis has ignited fierce debate among scholars, practitioners and civil society on remedying the system. On one hand, some believe that constitutional amendment is paramount to overcome this issue. Commentators like Professor James Chin, Asian studies professor from the University of Tasmania asserts that true public confidence in the judiciary cannot be restored unless the Prime Minister is entirely removed from the Judicial Appointments Commission (JAC) process. The underlying issue stems from Article 122B (1) of the Federal Constitution, which grants the Prime Minister considerable influence over judicial appointments. Meaningful reform would therefore require a constitutional amendment, either to make JAC recommendations binding on the Prime Minister or to empower the JAC to submit its shortlisted candidates directly to the Yang di-Pertuan Agong, following consultation with the Conference of Rulers.
Another step that can be taken to remedy the system is reducing executive influence over judicial appointments, which requires a fundamental restructuring of the Judicial Appointments Commission (JAC). One key step is to reduce the number of members appointed by the Prime Minister, shifting the balance to ensure that a majority are nominated by the judiciary itself, legal professional bodies such as the Bar Council, Sabah Law Society, and Advocates Association of Sarawak, or an independent parliamentary committee. Not by someone that might hold interest, especially those from other government organs (executive or legislature). Additionally, reforms must include greater transparency, such as mandating public disclosure of evaluation criteria, post-appointment publication of candidate shortlists, and a requirement for written justifications when JAC recommendations are not followed.
To conclude, the judicial crisis of July 2025 highlights serious flaws in Malaysia’s current judicial appointment system, especially how it compromises the principle of separation of powers, which is a core part of the country’s constitutional framework. By giving the Executive significant control over appointments, the system puts judicial independence at risk, weakens public confidence, and raises concerns that judges may be influenced by political considerations. As Datuk Rafizi Ramli and eight other MPs pointed out, “The recent leadership crisis in the judiciary highlights the need for reforms to strengthen the judicial appointment process, to prevent similar issues from recurring. We urge the administration of Datuk Seri Anwar Ibrahim not to consider this matter fully resolved until improvements to the judicial appointment process are presented to the public and implemented.” this crisis shows why reforms are urgently needed to strengthen the appointment process and prevent similar issues from happening again.
References
Federal Constitution of Malaysia
FMT Reporters. “Tiada Cadangan Rasmi Daripada JAC Untuk Pinda Undang-Undang Pelantikan Kehakiman.” Free Malaysia Today | FMT. Free Malaysia Today, February 5, 2025. https://www.freemalaysiatoday.com/category/bahasa/tempatan/2025/02/05/tiada-cadangan-rasmi-daripada-jac-untuk-pinda-undang-undang-pelantikan-kehakiman.
Hassan, Hazlin. “Former Deputy Minister Turned Judge Wan Ahmad Farid Wan Salleh Is Named Malaysia’s New Chief Justice.” The Straits Times, July 18, 2025. https://www.straitstimes.com/asia/se-asia/malaysia-appoints-new-chief-justice-easing-weeks-of-controversy-over-vacant-top-judge-seats.
Lim, Ida. “At Forum, Law Experts Say JAC Good for Malaysia, Suggest Limiting PM’s Role in Judges’ Selection, Appointments.”. Malay Mail, May 10, 2025.
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MalaysiaNow. “Over 30 Empty Benches Threaten Justice Process Nationwide as Judicial Scandal Escalates.” MalaysiaNow, July 14, 2025.
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