A Vacant Seat: Rethinking the Appointment Process After CJ’s Farewell

The past couple of days were filled with tears, reflection, and appreciation for a legacy likely unrivalled. I am sure we’ve all been showering our feeds with love for our beloved Chief Justice, Tun Tengku Maimun.

While I do hope the cheers and bittersweet celebrations continue on, as they say in showbiz, the show must go on. Unfortunately, the departure of the prima donna has left the stage empty, with no understudy in waiting.

The Malaysian Judiciary is left in a state of uncertainty. Over the past few months there has been much speculation as to whether Tun Tengku Maimun would be accorded a (conventionally automatic) six-month extension of her tenure by Prime Minister Anwar Ibrahim, pursuant to Article 125(1) of the Federal Constitution. Despite calls from the Bar, and civil society on multiple occasions expressing its deep concern over the inaction and lack of clarity regarding the impending retirement of the Chief Justice of Malaysia, it has been met with a painfully deafening silence from the executive.

Amidst the celebrations, one question remains — why? What reason could the Prime Minister have for not extending Her Ladyship’s time on the bench. While I personally believe an extension ought to be accorded because Tun Tengku Maimun has demonstrated nothing short of an impeccable record of fearless judgement and stood steadfast as a pillar of confidence for judicial independence — that is not the argument I will be making in this article.

In the absence of the PM’s response to calls for explanation, this article will unfortunately not be able to answer this question — I’ll leave that to your imagination.

But what I intend to argue here is premised in the absolute lack of decisiveness and transparency of the PM's decision. In that regard, I will endeavour to answer what are some changes that can be made to the appointment process to preserve the integrity of the judicial institution.

Appointment Before Retirement

What do Presidents, Premiers and even ‘healthy’ divorcees have in common — a peaceful transition of power. Why? Because there is value in continuity. I must credit the inspiration of this argument to Dato’ Malik Imtiaz who articulated this point on the Awani program ‘Consider This’ which aired on the eve of the Chief Justice’s retirement.

The discretion of the Prime Minister aside, there is no reason for him to have kept the public in the dark. It does not benefit the integrity of the Judiciary nor his political polls to not have been transparent with his decision. This is despite numerous calls from the Bar for answers on this uncertainty, culminating in an EGM to be convened to urgently address the issue.

If Anwar had announced his decision earlier, the Article 122B process of appointing a Chief Justice could have been expedited and the Yang di-Pertuan Agong (“YDPA”) acting on Anwar’s advice could have appointed the incumbent Chief Justice well before her retirement. This is beneficial for a few reasons.

Firstly, this would have given the incoming Chief Justice the opportunity to seek counsel from Tun Tengku Maimum so that her wisdom and years of leadership experience could be passed on while both are still on the bench. This is crucial for a smooth and effective transition that prevents a vacuum in judicial leadership.

Secondly, it promotes the stability of the Judiciary. It sends a message to the public that there is a sense of continuity in the Judiciary as an institution. An empty seat in a leadership position can pose problems and public anxiety if the nation is hit with a crisis or state of emergency that requires judicial intervention. 

Thirdly, it provides the opportunity for the Prime Minister to fulfil his obligation under Section 2 of the Judicial Appointments Commission Act 2009 (“JACA”) which provides:

The Prime Minister must uphold the continued independence of the judiciary and must have regard to— (a) the need to defend that independence; (b) the need for the judiciary to have the support necessary to enable them to exercise their functions; (c) the need for public interest to be properly represented in regard to matters relating to the judiciary, the administration of justice and related matters.

Rumours and speculation about ulterior motives as to why Anwar did not approve the Chief Justice’s extension have spread far beyond the walls of the legal fraternity but has found its way into mainstream media. This does not help the cause of public confidence in our system of government. A proactive appointment and transparent process would not only help the Judiciary but also Anwar’s own image. But alas, his silence speaks for itself.   

Disclosure of JAC Recommendations

The epitome of this proposed reform is to increase the transparency of judge recommendations. While Section 23 of the JACA provides a non-exhaustive list of criteria for the JAC to consider such as competency, impartiality and good writing skills, the JAC is not required to provide reasons for its selections. The Prime Minister is also not compelled to disclose his recommendation and his reason for his advice to the YDPA.

Comparing our local standard to that of the United States, a US Supreme court judge is appointed through a three-stage process. First, the President will make a formal nomination announcement, next the Senate leadership turns the nomination over to the hearings by the Senate Judiciary Committee which are publicly accessible and only after a positive recommendation and the Senate’s consent will the President issue a written appointment.

While I personally disagree with the level of public scrutiny Americans adopt — largely questioning the nominees on where they stand on key political issues — the constructive take away is that it allows for a transparent review of a judicial nominee’s competence.

In Malaysia, we have delegated this task of scrutiny to the JAC, however there is zero transparency on the names of the recommended judges or the reasons for the recommendation. Most importantly, Section 27 of the JACA empowers the Prime Minister to reject the candidates recommended by the JAC by asking for "two more names". And then two more, and two more, and two more, ad infinitum — in the absence of any express provision limiting the number of rejections that can be exercised by the PM. Read more on this in Edward's earlier post.

Perhaps the middle ground reform needed is to relax the obligation of secrecy prescribed under section 32 of the JACA, and for the JAC to provide and make available justifications for its recommendations. This way the public and the Bar can transparently review and scrutinise the JAC’s recommendations and juxtapose them to the Prime Ministers advise to the YDPA. This can also prevent abuse and arbitrary decisions, in addition to curtailing public speculation.  

Remove the Prime Minister from the Equation

The YDPA is the head of the Executive. Do we really need a middleman? History has thought us that an authoritarian can really mess up the Judiciary if too much unfettered power is conferred. Article 122B of the Federal Constitution needs to be amended so that the JAC directly recommends names to the YDPA for His Majesty’s choice of appointment.

This is in line with the Model Clause formulated by the Commonwealth Lawyers Association, Commonwealth Legal Education Association and Commonwealth Magistrates’ and the Judges’ Association which came together in 2011 to formulate a model clause for a Judicial Appointments Commission across the Commonwealth.

Model Clause 14 provides that “Once selected the Commission shall recommend the appointment of the selected Judges to the [Head of State] who shall accept the Recommendation”.

The drafters opined that this Model Clause requires the Commission to select candidates, and to make the recommendation to the Head of State, who is bound to accept the recommendation. This modal provision makes sense because it legitimises and gives due regard the collective wisdom, deference in opinions and scholarship of the JAC.

It further supports the argument for the removal of an added layer of filtration. The Committee in drafting the model clause opined that “neither the power of veto, nor a rejection of the candidates proposed by the Judicial Appointments Commission is considered appropriate where there is an independent appointments process.”

This recognises the weight that should be accorded to the JAC’s decision and illustrates the absurdity and contradictory nature of Section 27 of the JACA which allows the Prime Minister to request for more names, ad infinitum, until he gets someone he likes (hypothetically).

Simply put, an independent JAC is competent enough to recommend the most appropriate nominees to be appointed by the YDPA, and conferring the PM the power to virtually undermine the recommendations of the JAC turn the entire Act into a façade of accountability and check and balance.

Representation of the Bar in the JAC

Our JAC Act is missing one key stakeholder in its list of members that constitute the JAC in Section 5 — the Bar. The Malaysian Bar is a crucial voice that must be represented in the JAC. For starters, the Bar plays a crucial statutory role in defending judicial independence.

The Bar has a statutory duty, pursuant to Sections 42(a) and (d) of the Legal Profession Act 1976, “to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour” and “to express its view on matters affecting legislation and the administration and practice of the law in Malaysia”.   

Although Section 5(f) already provides that our eminent persons are to be appointed by the Prime Minister after consulting the Bar, this is not enough. In fact, Model Clause 2(v) proposes that two members of the legal profession should comprise the JAC.

I am persuaded on the need for this representation particularly after hearing Her Ladyship’s words in delivering one of her final judgements striking down Section 9(5) of the Peaceful Assembly Act 2012 for being unconstitutional, members of the Bar appearing before the Court took the opportunity, albeit impromptu, to express their heartfelt gratitude for Her Ladyship’s exemplary stewardship.

One of the sentiments expressed by the Chief Justice in response was to thank the Bar for stepping in when the Judiciary has been under attack and for defending the Judiciary when they themselves could not due to the restraint that must be exercised by members sitting on the Bench.

The Bar will continue to do so, and it can do it more effectively with a seat at the table.

Much Obliged, My Lady

The retirement of Tun Tengku Maimun is more than the closing of a distinguished chapter — it is a stress test for our judicial appointments process. Her Ladyship’s departure should have been a seamless handover; instead, it revealed systemic frailties that leave even the most optimistic observers unsettled.

If we truly value the independence and integrity of our Courts, then we must address the silence, secrecy, and Executive overreach that still plague the process. These reforms — early appointments, transparent JAC deliberations, removal of unchecked executive discretion, and stronger Bar representation — are not mere academic ideals. They are the scaffolding of a Judiciary that commands public trust, institutional stability, and the courage to act without fear or favour.

As we bid farewell to a Chief Justice whose clarity of thought and strength of conviction lit the Bench, let it not be said that we honoured her legacy with applause alone —  let it be said that her departure sparked the reforms that are long overdue.