Where To Now [Part 11/11-The Malaysian Judiciary Then and Now]

Where To Now [Part 11/11-The Malaysian Judiciary Then and Now]

In 1988 a young lawyer in Kuala Terengganu put a sticker on his car. It read Tabik Hormat Untuk Lima Orang Hakim. Salute to the five judges… Thirty-seven years later, that lawyer became Chief Justice of Malaysia.

by GK Ganesan August 24, 2026 99 Views

Chapter 11 of What the Judiciary Was and What It Has Become

[A record of the Malaysian Judiciary, before 1988 to now]

In 1988 a young lawyer in Kuala Terengganu put a sticker on his car.

It read Tabik Hormat Untuk Lima Orang Hakim. Salute to the five judges.

He was secretary of the Terengganu Bar Committee that year. His, he says, was one of the very few cars in the whole state to carry it.

Thirty-seven years later, that lawyer became Chief Justice of Malaysia.¹

Keep that in mind. This chapter has to end somewhere, and it ends there.

Five recommendations, one by one

Chapter 10 left the 2008 Panel of Eminent Persons handing over its report. The last two pages of it are the part nobody reads. They contain five recommendations.²

Here they are, and here is what became of each.

The first was that the wrong done to Tun Salleh Abas, Tan Sri Wan Suleiman and Datuk George Seah “should be undone, as best and as early as possible.” An acknowledgement of the mistake, and “suitable amends.”

Chapter 10 told what happened. Money in 2008, and no apology. The Government’s position in Parliament was that nobody had been dismissed at all. The amends were made. The acknowledgement was not.

The second named two international documents. One was the Beijing Statement of 1997. The other was the Bangalore Principles of Judicial Conduct of 2002. Both, the Panel said, “should be treated as the guidelines.”

Malaysia wrote its own instead. There is a Judges’ Code of Ethics 2009. There is a Judges’ Ethics Committee Act 2010.³

The third was about the next time. A tribunal must be senior to the judge it tries, brought from elsewhere in the Commonwealth if need be. And the judge must have a fair chance to defend himself, with counsel of his own choosing.

So far as this series can find, no tribunal has been appointed under Article 125(3) since 1988. If that is right, the third recommendation has never been tested. It is a fire extinguisher on a wall. Nobody knows whether it works.

The fifth — take them out of order — was addressed to lawyers. The legal profession “has an obligation to play an activist role.”

On 14 July 2025 more than four hundred members of the Malaysian Bar walked. They went from the Palace of Justice in Putrajaya to the Prime Minister’s Office, and handed in a memorandum. They asked for the top judicial offices to be filled by judges of proven integrity. They asked for the thirty-one empty seats on the bench to be filled.⁴

Of the five recommendations, the one most nearly kept is the one the Panel addressed to the lawyers

That leaves the fourth.

The fourth recommendation

It is the longest, and it is the one this chapter is really about.

“Separation of the judiciary from the executive is important for the independence of the judiciary. There should be no semblance of executive dominance in the career and future prospects of a judge following appointment.”

Note the words. Not dominance. Semblance of dominance. The Panel was not asking whether anyone was in fact leaned on. It was asking how the thing looks.

Since 2009 the look has been managed by a body. The Judicial Appointments Commission interviews candidates and sends names to the Prime Minister. The Prime Minister still decides which names go to the King.

So the question is narrow. When the Commission recommends, does the recommendation hold?

The record, 2018 to 2020

In 2018 a new Government came in promising to strengthen the Commission. A parliamentary committee would vet judicial candidates, so that the choice did not rest with one man.⁵

The Act of 2009 was not amended. Neither was Article 121(1). This series has found no Bill, in those twenty-two months, to put the words “judicial power” back into the Constitution.

What did happen was this. On 24 May 2018 the Commission recommended Datuk Azahar Mohamed as Chief Justice. On 11 July 2018 the office went to Tan Sri Richard Malanjum — the first Chief Justice from Sabah. Three other senior appointments announced that day were not the Commission’s names either.

The Attorney General of the day, Tan Sri Tommy Thomas, later published his own account. He wrote that he and the Prime Minister agreed the names between them.⁶

It happened again the following year. The Commission gave a list on 17 January 2019. Papers were drawn up. Three days after they were approved they were withdrawn. The Commission met again on 4 April. On 8 April a different name was appointed Chief Justice: Tan Sri Tengku Maimun Tuan Mat, the first woman to hold the office.

Both appointments were widely welcomed, and for good reason. A first from Sabah. A first woman. The record is set down here as fact and not as reproach against anyone named in it.

But read the fourth recommendation again. It is not about who was chosen. It is about the semblance.

July 2025

Judges retire on a birthday. The date is known years ahead.

Tengku Maimun reached sixty-six and left on 2 July 2025. The President of the Court of Appeal left at almost the same time. No successor had been named. Two acting appointments were made.⁷

Then a document appeared online. It purported to be minutes of a meeting of the Judicial Appointments Commission. A police report was lodged. The Cabinet was to take it up.⁸

The next day the Bar walked.

The Conference of Rulers met that week. On 18 July a Chief Justice was named. On 28 July he was sworn in at the Istana Negara. The King appoints on advice, as the Constitution requires.

Seventeen years after the Panel wrote about the semblance of executive dominance, four hundred lawyers walked to Putrajaya to talk about it.

Charge now, investigate later

There is a second door out of a criminal court, and the judges do not hold the key.

Article 145(3) of the Constitution gives the Attorney General, who is also the Public Prosecutor, power to start, to run, or to stop any criminal case. Section 254 of the Criminal Procedure Code is how he stops one. He tells the court he will prosecute no further. The accused is discharged. And section 254(3) says that discharge “shall not amount to an acquittal unless the Court so directs.”

That is a DNAA — a discharge not amounting to an acquittal. It means the case may be brought again. Usually it is not.

Chapter 8 recorded that the Act which took judicial power out of the Constitution in 1988 also put prosecutorial power in. Article 145(3A) was section 10 of Act A704. Both halves of that Act are still working.

On 7 July 2022 the Federal Court said something about these discharges that has been little noticed. A prosecutor had asked for one because “the investigation [was] still going on.”

Datuk Mary Lim FCJ called that explanation “both troubling and telling.”

“There should not have been a charge in the first place if the investigations were ‘still going on’ or incomplete. It would be an aberration and a travesty on the administration of criminal justice if the courts were seen to condone a practice of charge now, investigate later.”⁹

Fourteen months later, on 4 September 2023, the High Court granted a discharge not amounting to an acquittal on forty-seven charges of criminal breach of trust, corruption and money laundering. The accused was the Deputy Prime Minister, Datuk Seri Ahmad Zahid Hamidi. He had been charged in October 2018. In January 2022 the court had held that he had a case to answer. The reason the prosecution gave for stopping was that further investigation was needed.

On 8 January 2026 the Attorney General’s Chambers announced that no further action would be taken. The evidence, it said, was now insufficient to sustain a prosecution.¹⁰

Then the Bar again.

It applied for judicial review of the Attorney General’s decision to seek that discharge. On 7 May 2026 the Court of Appeal held that the Bar had “an arguable case, which is not frivolous,” and that such a decision may be reviewed in cases that are “appropriate, rare and exceptional.” Both the Attorney General and the Deputy Prime Minister have asked the Federal Court to stop the review. It is listed for 8 October 2026.¹¹

A question from Chapter 8, answered

Chapter 8 raised a question and left it. Article 161E(2)(b) says the Constitution may not be amended in a way affecting the High Court in Sabah and Sarawak without the concurrence of the Yang di-Pertua Negeri — the Governor — of the State. The 1988 amendment plainly affected that court. Had anybody asked?

The answer sat in a High Court file in Kota Kinabalu.

In Robert Linggi v The Government of Malaysia the Government produced two telexes. One from Sabah, dated 5 April 1988. One from Sarawak, dated 6 April. Each recorded the Governor’s concurrence to the amendment of Article 121 — setting out the very changes that became law on 10 June.¹²

So the consents were obtained. In 1988 somebody remembered to ask.

The same judgment records that in 1994, when the Governors lost their power to appoint judicial commissioners, nobody asked at all. That amendment was held null and void to that extent.¹³

The Government of 1988, doing the most damaging thing ever done to this judiciary, followed the procedure. The Government of 1994 did not.

Nobody is the model

It is tempting to end by pointing somewhere else. Look at India, brave. Look at Singapore, orderly. Both stories have worn thin.

In January 2025 the International Commission of Jurists reported on the Indian judiciary. Judges are appointed there on no published criteria. The Government can stall a recommended appointment by not acting on it. And jobs given to judges after retirement, the report said, “cast a shadow of bias on the concerned judge.”¹⁴

Singapore is quieter, and the quiet is enforced. In 2018 an activist and an opposition politician were convicted of contempt of court there. What one of them had posted on Facebook was that Malaysia’s judges are more independent than Singapore’s in cases with political implications. Their appeals were dismissed in 2020.¹⁵

A man was punished for saying, in public, the thing this series has spent eleven chapters examining. Make of that what you like.

Nobody is the model. Malaysia answers for itself.

The sticker

Go back to Kuala Terengganu, and the car.

In 1988 that sticker was a small, cheap, slightly risky thing. A young lawyer with no power did the only thing open to him. He said, on the back of his car, that five judges deserved a salute.

The Panel’s fifth recommendation was written twenty years after that sticker went on, and seventeen years before four hundred lawyers walked to Putrajaya. It is the only one of the five that has never needed anybody’s permission.

The other four all did.

This is the last chapter.

Further reading. The Report of the Panel of Eminent Persons to Review the 1988 Judicial Crisis in Malaysia (2008) is free from the Malaysian Bar. Read the last two pages first, and then decide for yourself how many of the five have been done.

∞§∞

This article is written for a general readership and does not constitute technical or legal advice. Readers with legal questions are encouraged to seek independent legal advice.

The author thanks KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi at GK Legal. Our gratitude to Jhon Jim of Unsplash for the image.

Claude, Anthropic’s AI, smoothed the drafting; Perplexity Pro checked the facts. The argument, the views, and the errors remain the author’s.

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All content on this site, including but not limited to text, compilation, graphics, documents, and layouts, is the intellectual property of GK Ganesan Kasinathan and is protected by local and international copyright laws. Any use shall be invalid unless written permission is obtained by writing to gk@gkganesan.com.”

Where To Now [Part 11/11-The Malaysian Judiciary Then and Now]

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