We ask a lawyer to explain WTF is happening with Malaysia's judiciary

Over the past few days, Malaysians have been glued to what feels like a slow burn legal drama, what with our top judges retiring left and right and no successor in sight. Then earlier last week, Rafizi Ramli dropped the mother of all bombshells, hinting that the delay in these judicial appointments wasn’t just a case of poor planning but something a lil more ✨sus ✨.

If you’ve been seeing “judiciary” trending everywhere but didn’t really care, well, now’s the time to pay attention. Rafizi basically revealed that the government already got the names to replace the retiring judges but just didn’t do anything about it. And now he and 9 other PKR fellas are calling for an inquiry to dig into why that happened… or rather, didn’t.

The word on the street (aka social media) is that maybe, just maybe, someone’s trying to keep the courts on a tight leash. And honestly, that’s the kind of sus we love to stick our Cilisos nose into. But hold on a sec, are we going to fast for yall? Ok then, let’s rewind, grab ourselves a lawyer and bring you guys up to speed.

So… who’s retiring again?

Retiring is normal. A judge retiring is also normal. What’s not so normal is when three of the top judges in the country, Chief Justice Tengku Maimun, Court of Appeal President Abang Iskandar and Federal Court Judge Nallini Pathmanathan, are clocking out around the same time and nobody is officially lined up to replace them.

You would think when someone retires, they just toddle off into the sunset. But surprise surprise, everyone from the Malaysian Bar to civil society groups were begging the government to extend these judges’ terms. Why you ask? Because Malaysia’s courts are already drowning in a backlog of cases. And with people like Najib still crawling through the courts, the last thing we need is a leadership vacuum slowing things down even more.

Now add to the fact that an avalanche of judges are expected to retire further into the year…

All this to say, the bench isn’t exactly bursting with senior judges ready to take over at that level. So extending their terms was a pretty practical solution. Well, that was the general consensus, unless your name is Anwar.

As you may already know, the government’s decision was to let the judges retire without extension and the judiciary has been kinda tunggang-langgang ever since. An interim Chief Justice, Hasnah Hashim, was only named after days of awkward silence. And genuinely, it’s the kind of silence that makes you wanna scream, cos seriously, everyone saw these retirements coming from a year away so what’s up with this last minute scramble rn???

Gomen knew the bench was changing but clearly didn’t get their judges in a row

First, we gotta establish that judicial appointments in Malaysia are supposed to be straightforward.

The Judicial Appointments Commission (JAC) is a body set up in 2009 to make the process more transparent and less political. What they do is evaluate and recommend names for top judicial roles. The PM then forwards these names to the King who makes the formal appointments. Usually, this all happens behind the scenes and by the time a judge retires, there’s already someone warming up in the backroom.

Evidently this time around, there was no one in the backroom limbering up for their moment to shine. What’s more, four other judges due to retire this year were all extended. So how come only these three weren’t given the same leeway? At least, that seems to be the sentiment every Malaysian and their pet dog is having. And when you zoom in on the timeline, the tea starts to steep.

Did you guys know Anwar’s got another liwat case on his hands? Yep, his former aide, Yusoff Rawther, filed a civil suit claiming sexual assault. The case finally made it to court this year but Anwar’s legal team swooped in with a last minute attempt to delay the trial arguing that as PM, he should have legal immunity.

Unsurprisingly, the courts weren’t having it. But around the same time, a former AG appointed by the PH government got promoted to the Federal Court, allegedly on Anwar’s recommendation. Fun fact, this is the same guy who chose not to appeal Najib’s 1MDB acquittal, in case you were curious. And during that period as well, Tengku Maimun (who was still Chief Justice then) openly criticised the PM’s role in appointing judges.

And just when you thought it couldn’t get messier, someone recently went and bocorkan the minutes from a JAC meeting. If those leaked notes are legit (the fact that police launched an official probe kinda hints it might be) they suggest that Tengku Maimun had voiced concern over an allegedly Anwar-approved judge being in the running for Chief Judge.

Put all that together, and let’s just say the timing raised more than a few eyebrows. A few lawyer eyebrows too, in fact.

But you might be thinking so what if it raises eyebrows? Avocados cost a fortune, work is already killing you, why should you care which Mamat is wearing the robe and banging the gavel? And the truth of the matter is…

When the judiciary isn’t fully independent, everything else starts to rot

One of the main reasons people were pushing for Tengku Maimun’s extension is cos she’s been LOUD about protecting judicial independence.

That’s probably another term you’ve seen thrown around like confetti lately. It essentially means judges must be free to decide cases without pressure from politicians, billionaires or any big tauke trying to mess with the law. And ofc, they can only do that if they’re not busy worrying about who’s in Putrajaya watching over their shoulder.

If you still think this whole thing doesn’t affect you, think again. Because the moment judges do start worrying or worse, start playing nice with the powers that be, that’s when the rest of us suffer. Cos then the powerful get bolder and start passing laws that screw the rest of us. They jail whistleblowers, protect their cronies and suddenly you see dodgy fellas getting DNAAs sini sana. And the thing is, this has happened before.

In 1988, Mahathir didn’t just sack the Chief Justice, he basically yeeted the entire top bench for getting in the way of his political plans. From there, the judiciary turned into a yes man machine. Corruption grew and laws like the ISA got amended to fully block the courts from challenging the government’s arrests. The Constitution itself was changed to say judges only have as much power as Parliament lets them have.

It’s honestly scary to think of the government holding that kind of unchecked power especially after we’ve spent decades clawing back some independence for the courts. Losing it again wouldn’t be just tragic but pretty darn stupid since we already know how that story ends. As for the only way forward…

These government fellas really need to start being honest with us

Let’s be real. A lot of what goes on in government happens behind closed doors. Fine, some things probably need to be discreet. But when it comes to something as important as choosing the top judge in the country, why so rahsia? Why can’t the public know what’s going on? This kind of secrecy just breeds speculation and gets everyone assuming the worst about each other.

If anything, being upfront about the process like who got recommended and why they were (or weren’t) chosen would only make the system more accountable. And in a country where confidence in institutions is already hanging by a thread, that transparency goes a long way.

As it stands rn, we’re all still waiting to see if the government will finally explain itself, and whether the inquiry Rafizi and the others are calling for will actually happen.

At the end of the day, it’s not like Malaysians are asking for much. It’s just a judiciary that works, judges who aren’t chosen based on who their bffs are, and a system that’s open and fair.

...