I.  INTRODUCTION

This fundamental question lies at the heart of the recent controversy surrounding Malaysia’s former Chief Justice, Tun Tengku Maimun binti Tuan Mat. Her speech in Malta spoke about challenges faced by any judiciary in a constitutional democracy. It could have been spoken by any Commonwealth judge, and no one would have batted an eyelid.

The moment that shook the Palace of Justice and Putrajaya

On 8 April 2025, Chief Justice Tengku Maimun delivered a landmark address at the 24th Commonwealth Law Conference in Malta.¹ Speech by The Right Honourable The Chief Justice of Malaysia, Tun Tengku Maimun binti Tuan Mat, delivered at the 24th Commonwealth Law Conference, Malta, 8 April 2025: https://www.malaysianbar.org.my/cms/upload_files/document/Commonwealth Law Conference 2025.pdf  Her lecture, titled ‘Judicial Independence and Parliamentary Sovereignty – a crossroad?’, would ignite a controversy that reverberates through Malaysia’s corridors of power to this day.

The speech was no mere academic exercise. It was a clarion call defending three fundamental constitutional truths that form the very foundations of Malaysia’s political establishment.

II.  THREE PILLARS OF CONSTITUTIONAL CHECK AND BALANCE

A.  First, the Chief Justice declared ‘Constitutional Supremacy’

She stated unequivocally that in Malaysia, “the Constitution is the supreme law of the land, not Parliament”.² Speech by The Right Honourable The Chief Justice of Malaysia, Tun Tengku Maimun binti Tuan Mat, para 11  This principle, she reminded her audience, was established in the seminal case led by Lord President Tun Suffian LP, in Ah Thian v Government of Malaysiav [1976].³ 1976] 2 MLJ 112, where Lord President Suffian declared: “The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written constitution”.³ Ah Thian v Government of Malaysia [1976] 2 MLJ 112

The Malaysian system fundamentally differs from Westminster parliamentary supremacy. Parliament cannot enact laws that contradict the Federal Constitution without facing judicial nullification.

B.  Second, she advocated for reforms in Judicial Appointments.

The Chief Justice highlighted proposals to remove the Prime Minister’s role in appointing judges.⁴ Speech by The Right Honourable The Chief Justice of Malaysia, Tun Tengku Maimun binti Tuan Mat, para 37

She argued such changes 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.”

These proposals were profound but nothing revolutionary. They echoed recommendations from the 2009 Royal Commission on the Lingam tape scandal.⁵ Panel finds Lingam video clip authentic, The Star, 10 May 2008: https://web.archive.org/web/20080510171528/http:/thestar.com.my/news/story.asp?file=%2F2008%2F5%2F10%2Fnation%2F21213763&sec=nation[/mfn]. This was supported by the Malaysian Bar Council and even the Conference of Rulers in 2022 ⁵Negri Sembilan Ruler proposes PM no longer appoint members of judges’ nomination panel, Malay Mail, 30 November 2022

It was for this very purpose that the Judicial Appointments Commission Act 2009 had been enacted.  The Prime Minister’s recommendation to the King, under Article 122B on which judge was to be appointed, was therefore, no longer unconstrained or arbitrary.

Otherwise, why have a Judicial Appointments Commission?  Or have a JAC packed by members pandering to those in power?

C.  Third, she invoked the lessons of history.

The Chief Justice reminded her audience of the “harrowing events of the 1988 judicial crisis”.⁶ Speech by The Right Honourable The Chief Justice of Malaysia, Tun Tengku Maimun binti Tuan Mat, para 41

She contrasted this dark period with the judiciary’s “proud re-emergence” in recent decades, emphasising the need for mutual respect among the three branches of government.

III.  THE BACKLASH: WHEN TRUTH STINGS

The reaction was swift.

Former law minister Nazri Aziz interpreted her remarks as a “public accusation” that Prime Minister Anwar Ibrahim had ‘interfered’ with judicial appointments.⁷ Nazri pans outgoing CJ for suggesting political interference in judiciary, Malaysiakini, 14 April 2025].

He claimed her tenure was ‘not extended’ due to this ‘criticism’.⁷ ‘If Anwar interfered, Najib wouldn’t be in jail’: Nazri rejects chief justice’s claim on judicial reform, Malay Mail, 14 April 2025

He also argued she should have spoken to him.

Now this is improper: the Chief Justice, as head of the Judiciary, answers only to the Constitution.

She should not negotiate with the Executive.

The Prime Minister is not superior to the Chief Justice.

At the time, Anwar was in a conflict of interest, as Mr. Rawther had filed a case against him as sitting PM.⁸ See https://apnews.com/article/malaysia-anwar-sexual-harassment-suit-yusoff-court-32cc22c1dd7253d61c1b760cd68d18a1, https://www.thestar.com.my/news/nation/2025/06/10/appeals-court-grants-anwar-temporary-stay-in-yusoff-rawther-suit and https://www.malaysiakini.com/news/745678[/mfn]

Had the Chief Justice met with the PM, or spoken to him, she would have breached her constitutional duties.

She was required to remain silent and was legally barred from commenting on matters involving the PM.

Nazri Aziz’s view thus fundamentally misapprehends the Chief Justice’s constitutional obligations and the legal principles at stake.

IV.  WHY THE CRITICS ARE WRONG: THE LEGAL FOUNDATION

A.  Judicial Independence as Basic Structure

Malaysian constitutional law recognises that judicial independence is a fundamental part of the Constitution’s “basic structure”.⁸ Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333

This concept, inspired by the landmark Indian case Kesavananda Bharati v State of Kerala [1973], means that certain core constitutional elements cannot be altered or removed, even by constitutional amendment.⁹ Kesavananda Bharati v. State of Kerala, Supreme Court of India, 1973

The Basic Structure Doctrine is not simply an ‘Indian invention,’ but rather an ‘Indian innovation’; with deep Aristotelian, German and French philosophical roots.¹⁰ The doctrine traces its philosophical foundations to Aristotle’s constitutional theory  [Aristotle, Politics, III.6] particularly his concepts of constitutional supremacy [Aristotle, Politics, IV.1], just versus unjust constitutions [Aristotle, Politics, III.7], the common good  [Nicomachean Ethics, V.1], mixed constitution [Aristotle, Politics, IV.9], and constitutional preservation [Aristotle, Politics, V.1-12]. These concepts demonstrate that constitutional limits have ancient historical foundations [Conrad, 1965]. The doctrine’s modern theoretical framework emerged from German constitutional jurisprudence. The BSD distinguishes between constituent power (the people’s sovereignty) and constituted power (institutional limits), shaped by the intellectual debate between Hans Kelsen’s democratic positivism and Carl Schmitt’s authoritarianism [Schmitt, 1922; Kelsen, 1945]. Both were prominent German constitutional theorists whose work during the Weimar Republic period profoundly influenced constitutional thinking worldwide  Germany’s practical implementation preceded India’s theoretical adoption. Germany’s Basic Law (1949) includes an “eternity clause” (Article 79(3)) that places human dignity and democratic governance beyond constitutional amendment [Article 79(3) of Germany’s Basic Law 1949]. This safeguard emerged directly from Germany’s traumatic experience of how Hitler legally exploited the Weimar Constitution’s amendment provisions to establish his dictatorship.

The Indian adaptation came through Dietrich Conrad, a German scholar who transmitted these German constitutional concepts to India. In 1965, Conrad, influenced by both Schmitt and Hauriou’s work, delivered lectures at Banaras Hindu University. That had some influence on the Indian Supreme Court’s development of the Basic Structure Doctrine in Kesavananda Bharati (1973).¹¹ https://www.dailykos.com/stories/2025/2/2/2300731/-How-did-Hitler-use-the-constitution-to-break-the-constitution.  Aee also https://en.wikipedia.org/wiki/Article_48_(Weimar_Constitution) and https://thebasicstructureconlaw.wordpress.com/2020/04/24/remembering-professor-conrad-the-genius-behind-the-basic-structure-doctrine/ ; https://research.wu.ac.at/ws/portalfiles/portal/18923533/The+basic+structure+doctrine+and+its+German+and+French+origins+a+tale+of+migration+integration+invention+and+forgetting.pdf ; https://research.wu.ac.at/ws/portalfiles/portal/18923533/The basic structure doctrine and its German and French origins a tale of migration integration invention and forgetting.pdf; and https://www.infogalactic.com/info/Eternity_clause.  And so the doctrine thus represents a powerful example of legal migration and constitutional cross-fertilization, demonstrating how German constitutional innovations, forged in response to democratic collapse, were successfully adapted and refined in the Indian constitutional context.

In Malaysia, the basic structure doctrine emerged from the Federal Court’s trilogy of cases: Semenyih Jaya [2017], Indira Gandhi [2018], and Alma Nudo [2019].¹² Speech by The Right Honourable The Chief Justice of Malaysia, Tun Tengku Maimun binti Tuan Mat, para 24  These cases held that judicial power remains vested in the courts and cannot be diminished by constitutional amendment.

B.  The Duty to Speak

Judges in the Commonwealth system have not merely the right but the duty to speak publicly about matters affecting the judiciary.¹³ Statement by the Malaysian Bar, 14 April 2025

This ensures judicial freedom from “fear of removal or other sanction” when addressing issues central to the administration of justice.¹⁴ Commonwealth Lawyers Association Statement, 19 March 2025

The Malaysian Bar emphasised that judges must be free from improper influence and base their decisions solely on evidence and law.¹⁵ Malaysian Bar defends Chief Justice amid backlash from former law minister, The Edge Malaysia, 14 April 2025

C.  Constitutional Office, Not Public Service

Critics erroneously described Chief Justice Tengku Maimun as a “public servant”.¹⁶ Malaysian Bar statement, 14 April 2025

However, superior court judges are not mere public servants but constitutional officeholders.

They hold special protections under Article 125 of the Federal Constitution, which shields them from retaliation for properly performing their duties.¹⁷ Federal Constitution of Malaysia, Article 125

V.  THE HISTORICAL WARNING

Malaysia’s 1988 judicial crisis serves as a stark reminder of what happens when executive power tramples judicial independence.¹⁸ 1988 Malaysian constitutional crisis, Wikipedia  Lord President Tun Salleh Abas and other judges were removed for defending judicial independence against executive interference.¹⁹ Report of the Panel of Eminent Persons to Review the 1988 Judicial Crisis, Malaysian Bar

The crisis began when the judiciary made decisions that invalidated government actions. The executive response was to remove the judiciary’s leadership and amend the Constitution to weaken judicial power.²⁰ Speech by The Right Honourable The Chief Justice of Malaysia, Tun Tengku Maimun binti Tuan Mat, para 16-18

VI.  INTERNATIONAL STANDARDS: THE GLOBAL CONSENSUS

International law strongly supports judicial freedom of expression.

The UN Basic Principles on the Independence of the Judiciary clearly state that judges should have freedom of expression and should not face disciplinary action for comments made while performing their duties.²¹ UN Basic Principles on the Independence of the Judiciary, Principle 8

Chief Justice Tengku Maimun’s speech directly addressed judicial administration and constitutional principles, falling squarely within this protected area.

VII.  A GOVERNMENT IS LEGITIMATE ONLY WHEN THE JUDICIARY IS INDEPENDENT

The controversy reveals a deeper truth about governmental legitimacy. As Justice Christopher Chin wisely observed in Harris Mohd Salleh v Chief Secretary, Government of Malaysia [2023]:²² Harris Mohd Salleh v Chief Secretary, Government of Malaysia & Ors [2023] 2 MLJ 296

“Legitimacy of the Government in the eyes of the populace is critical as the public must recognise the law and the Government as legitimate, failing which, the public will not believe in, and follow, the rule of law”.

VIII.  THE PILLARS OF CONSTITUTIONAL DEMOCRACY

The controversy illuminates four fundamental principles essential to any democratic society:

The Rule of Law means that everyone, including government officials, must obey the law.²³ Ahmad Masum, “The Rule of Law Under the Malaysian Federal Constitution” [2009] 6 MLJ  It represents a “Higher Law” that guides the Constitution’s spirit. As Thomas Fuller’s maxim declares: “Be you never so high, the law is above you.”²⁴ Thomas Fuller, Gnomologia (1732), entry number 943

Separation of Powers divides government into three independent branches: Legislature, Executive, and Judiciary.²⁵ Federal Constitution of Malaysia, Articles 121-131A  This prevents any single branch from becoming tyrannical and ensures checks and balances.

Constitutional Supremacy means that Malaysia’s Federal Constitution stands as the ultimate legal authority.²⁶ Federal Constitution of Malaysia, Article 4(1)  Any law contradicting the Constitution is void. This differs fundamentally from systems with parliamentary supremacy.

Judicial Independence requires judges to make decisions based solely on law and facts, without political pressure or interference.²⁷ UN Basic Principles on the Independence of the Judiciary  This protects not judges but the people’s right to impartial justice.

IX.  THE ULTIMATE QUESTION FOR YOU

The Chief Justice’s Malta speech was not an attack on government but a resolute defence of constitutional principles.

She sought to strengthen Malaysia’s legal system by upholding the mechanisms designed to protect citizens and ensure fair governance.

This is a major constitutional crisis; as major as the 1988 Tun Salleh Abas Judicial Crisis.

And so we are compelled to ask this question:

In a nation that values justice, should we not celebrate those who courageously defend the Rule of Law, the Separation of Powers, and Constitutional Supremacy – even when their words inconvenience the powerful?

X.  YOUR ANSWER MATTERS

Your answer will reveal whether Malaysia will choose the path of constitutional democracy or slide toward the arbitrary rule that the 1988 crisis so darkly foreshadowed.

So what is your answer?

∞§∞

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Gratitude:

The author thanks UK Menon, G Naidu, KN Geetha, TP Vaani, JN Lheela and Lydia Jaynthi.

Acknowledgements: the image is from Planet Volume, Unsplash