As more and more political and business elites seem to step away from courtrooms, untouched, these are the questions that haunt the mind of every thinking Malaysian.

I.  WHAT IS JUDICIAL INDEPENDENCE—AND WHY DOES IT MATTER?

Judicial independence and the rule of law are foundational principles of a fair and just society.

And that is why, under international treaties and human rights law, every country must guarantee fair hearings before truly independent judges: Article 14(1) of the International Covenant on Civil and Political Rights, alongside the United Nations Basic Principles on the Independence of the Judiciary, reinforce that principle.¹International Covenant on Civil and Political Rights, Article 14(1); United Nations Basic Principles on the Independence of the Judiciary, 1985¹

Malaysia is a signatory to those treaties.

And so, that is the main ground why Malaysia’s Federal Constitution used to stated that “The judicial power of the Federation shall be vested in two High Courts” under Article 121(1). [After the 1988 Judicial crisis, Mahathir tried to remove the phrase, “The judicial power … shall be vested in two High Courts”. He failed.² On 10 June 1988, Mahathir’s government amended Art. 121(1) of the Federal Constitution, by removing the words, The judicial power … shall be vested in two High Courts”

The words “judicial power” are still there in the Constitution.

II.  BUT WHY DO WE NEED IT?

Judicial independence shields our judges from pressure, so that they may act “without fear or favour,” with legal security and protected tenure.³Federal Constitution of Malaysia, Articles 121, 125, 125A, and 161

When that independence is lost, judges may become tools, justice becomes a weapon, and the peoples’ faith in courts crumbles.⁴ELI-Mount Scopus European Standards of Judicial Independence

III.  WHEN DID THE SYSTEM START TO CRACK? — THE TIMELINE OF VIP DNAA CASES

A “Discharge Not Amounting to Acquittal” (DNAA) is a court decision where criminal charges can be dropped temporarily, leaving open the possibility for prosecution to revive the case later.⁵Criminal Procedure Code (Malaysia), Section 254(1). As I have said earlier, in practice, once a DNAA is entered, the case is dropped – for good.

This power comes from Section 254(1) of our Criminal Procedure Code and Article 145(3) of the Constitution, which gives the Attorney General full discretion in prosecutions [except for Syariah, native, or military courts].⁶Federal Constitution of Malaysia, Article 145(3)

Between 2018 and 2024, official figures confirm that at least 18 DNAA decisions involved well-connected Malaysians—from politicians to business elites. Nearly two in five of these cases occurred in just the last two years.⁷Malay Mail, “Azalina: 18 DNAA for VIPs from 2018, seven since 2023”, Feb 25, 2025; The Leaders Online, “18 DNAA for VIPs from 2018, seven since 2023”, Feb 25, 2025

At the end of this article are the details of who received the benefit of these DNAA orders.

Even in Parliament, when the government asked to identify the names of some individuals who have received DNAA orders, the government declined. Can it do that to Parliament? That, is strange.

IV.  WHERE ARE THE WEAKNESSES? — THE FOUR PRESSURE POINTS

Prosecutorial Power: The Attorney General acts as both the government’s lawyer and the country’s chief public prosecutor, a dual role explicitly authorised by Article 145(3) of our Constitution. Article 145(3) is untenable and is widely criticised for conflicts of interest, especially when the government or its officials, or politicians are the subject of an investigation..⁸Federal Constitution of Malaysia, Article 145(3)

Judicial Appointments: The Judicial Appointments Commission (JAC), created under the Judicial Appointments Commission Act 2009, consists of nine members—five of whom are appointed at the complete discretion of the Prime Minister, allowing the executive to quietly steer appointments. .⁹Judicial Appointments Commission Act 2009, Section 5; Malay Mail, “JAC 101: The selection of Malaysia’s judges explained”, May 20, 2025

Vacancies and Delays: Frequent leadership gaps—such as times when the posts of Chief Justice and President of the Court of Appeal are left vacant—can halt court business and open space for further executive manipulation.¹⁰Channel News Asia, “Deepening crisis in Malaysia over top judges’ appointments poses stern political test”, July 8, 2025

Secrecy and Leaks: When credible claims of government interference in judicial appointments emerged in 2025, officials responded by threatening to use the Official Secrets Act instead of promoting transparency.¹¹The Star, “Malaysian Bar hands memo on judicial independence to PMO”, July 14, 2025 The processes for granting of royal pardons; or for selecting judges through the Judicial Appointments Commission (JAC), were intended to be transparent. Yet, when crucial questions are raised about these processes, the government unjustifiably insists on ‘secrecy’ and ‘confidentiality’; instead of openness. ‘Processes’ are meant to create transparency. They are not an excuse to fall back on ‘secrecy’. Then why have the JAC? Or the Pardons Board?

V.  WHY SHOULD MALAYSIANS CARE? — PUBLIC TRUST AND THE LAW

Each questionable DNAA tells the ordinary Malaysian that the courts have two sets of rules—a strict set for the powerless, and a flexible one for the powerful.¹²Malay Mail, “Azalina: 18 DNAA for VIPs from 2018, seven since 2023”, Feb 25, 2025 This erodes trust in justice, halts anti-corruption drives, scares away investors, and makes it harder for honest officials to bring wrongdoers to account.¹³ELI-Mount Scopus European Standards of Judicial Independence

VI.  LESSONS FROM THE WORLD: WHEN POWER PICKS THE REFEREE

There is a technique that governments use to suppress independent judges. Though the nations differ, when the same circumstances arise, governments use an identical playbook. Here are some examples.

United States: President Nixon urged a team of his party advisors to break into the Watergate Building to tap the Democratic Party election team (Nixon was a Republican). They were caught. As he ordered a cover-up after a cover-up, Nixon sank into an inexorable position of conflict. He ordered the so-called “Saturday Night Massacre” in 1973—and fired the Watergate prosecutor. Two top Department of Justice officials resigned rather than risk the rule of law. Public outrage led to Nixon’s downfall, reminding the world that even the mighty can be brought to heel by independent lawcourts.¹⁴EBSCO, “Saturday Night Massacre”, 2022; Wikipedia, “Saturday Night Massacre”, 2003

United Kingdom:  The 2005 Constitutional Reform Act created an independent Judicial Appointments Commission, for the first time giving judges security from government interference and clearly dividing judicial work from Parliament and the executive.¹⁵Constitutional Reform Act 2005 (UK)

India: After the government tried to handpick a politically compliant Chief Justice in 1973, India’s Supreme Court responded by inventing the “collegium” system, ensuring only judges can pick the next judge—a shield from politicians.¹⁶Supreme Court Advocates-on-Record Association v. Union of India (1993) But what if the Collegium itself is not free from bias or corruption?

Australia: Several times, serving Attorneys-General were made High Court judges, prompting decades of debate about how open and unbiased Australia’s system really is.¹⁷Independent Judiciary in India and Australia: A Comparative Analysis, Whiteblack Legal, 2024

New Zealand: There, the Attorney-General nominates judges after closed-door consultations, causing persistent worries of appointments based on friendship, not merit.¹⁸Te Ara: The Encyclopedia of New Zealand, “Judicial system”, 2004

Poland: After a government-imposed “disciplinary chamber” punished critical judges, the European Court of Justice ruled such controls illegal, reaffirming independence as universal law.¹⁹European Court of Justice, Judgment C-791/19, 2021; ELI-Mount Scopus

Hong Kong: Article 44 of the National Security Law lets the Chief Executive pick special judges for sensitive cases, causing global concerns for fair trials and the separation of powers.²⁰Hong Kong National Security Law, Article 44; News.gov.hk, “Judge designation explained”, July 2, 2020

VII.  HOW CAN MALAYSIA HEAL?

Tighten DNAA Rules: Amend Section 254(1) of the Criminal Procedure Code so every DNAA comes with a public, written explanation.

Separate the AG’s Roles: Like in Britain, consider creating an independent Director of Public Prosecutions.

Reform Judicial Appointments: Change the JAC’s makeup to include more diverse voices, and publish how appointments are made.

Speed Up Vacancies: Require leadership posts to be filled fast; never leave courts rudderless.

Ensure there is a chain of command based on seniority: even if there is a delay in leadership gaps, create a clear, automatic, workable protocol on opening up temporary acting posts, without having to wait for the politicians to initiate or other constitutional institutions to start shifting gears.

Audit and Inquire: A Royal Commission, as urged by the Bar, must dig into all credible claims of interference.

VIII.  THE FINAL QUESTION: WILL MALAYSIA’S COURTS SHIELD THE WEAK—OR RELEASE THE POWERFUL?

“Which judge will stand up for the powerless?”

“And will he or she have the courage of his or her conviction to face off against the Executive?”

Those are the questions echoing in the secret chamber of every Malaysian’s heart.

Will Malaysians demand a law that protects every citizen, or accept a future where rules bend and justice means “just us”?

As history shows at home and abroad, the stakes could not be higher

∞§∞

APPENDICES

TABLE OF DNAA RECIPIENTS

Table-1: The Prominent List

WHO WERE THE 18?

Table 2 – VIPs Granted DNAA Orders or acquittals in Malaysia (2018-2024)

(Rows 17-18 are recorded in the parliamentary reply, but identities remain, oddly, “confidential”; details reproduced exactly as per Registrar’s Circular 1/2012 definition of “High-Profile Cases”.)

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Gratitude:

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

Acknowledgements: the image is from Marjhon Obsioma, Unsplash