In Malaysia, two ideals must co-exist to make the judiciary function in the public interest: judicial independence and judicial accountability. One cannot work without the other in a democratic system. An unaccountable judiciary risks arbitrariness. A judiciary that is not independent risks becoming a puppet of power. Neither serves the people. Both must be reformed, protected, and advanced together.

The recent speech by Chief Justice Tun Tengku Maimun Tuan Mat at the Commonwealth Law Conference 2025 struck this balance with uncommon clarity. She acknowledged the complexity of judging judges while reinforcing the constitutional and institutional imperative of safeguarding judicial independence. Our Chief Justice has been very vocal, and rightly so, about the need to ensure judicial independence at all costs.

This discussion could not be more timely. A constitutional challenge has been filed against the Judicial Appointments Commission (JAC) Act 2009, arguing that it undermines judicial independence by allowing for too much executive control, particularly through the Prime Minister’s role to appoint members of the Commission.

Prime Minister Datuk Seri Anwar Ibrahim has responded with a dual commitment: to defend the constitutionality of the JAC Act in court, while also undertaking a comprehensive review of the JAC framework. He says the government will consult widely (with the judiciary, the Bar, civil society, and the Conference of Rulers) to determine how best to improve the system.

At the same time, Malaysia’s courts are struggling with an alarming number of judicial vacancies, which has, in turn, not allowed the courts to function optimally. Delays in trials and appeals (some as far ahead as 2030) demonstrate that the judiciary is strained.

This is an inflection point.

Anwar has always positioned himself as a reformist. But it is not just rhetoric. He has lived through the consequences of a compromised judiciary. Twice imprisoned on politically tainted charges, Anwar has experienced first-hand how a legal system subjected by executive overreach can destroy reputations, crush freedoms, and distort the Constitution. No Prime Minister in our history has had a more intimate understanding of what is at stake when the rule of law is subordinated to political expediency.

This gives him not just a mandate, but a moral duty, to deliver reforms. If he does not reform the judicial appointments mechanism now—with a two-thirds majority in Parliament, popular support, and a shrinking window of goodwill—then perhaps no PM ever will.

In her speech, the Chief Justice candidly acknowledged that the current system of appointments, governed by the JAC Act, suffers from a lack of transparency and perceived independence. She noted that judicial independence does not only involve non-interference after appointment, but begins with the appointment process itself. If the process is too closely tethered to the executive, public confidence in the bench will be eroded.

Under the JAC Act, five of the nine commissioners are appointed by the Prime Minister, giving the executive a clear majority. While the Act’s drafters aimed to strike a balance between transparency and maintaining the constitutional roles of the Yang di-Pertuan Agong and the Malay Rulers, in practice, this framework invites allegations of executive dominance.

As Anwar himself has admitted, “no law is above scrutiny.” And the JAC Act is overdue for exactly that.

The solution lies not in abandoning the JAC, but in restructuring it. We need a system that:

1. Limits executive influence by reducing or eliminating the Prime Minister’s discretion when appointing commissioners.
2. Guarantees judicial and legal peer participation by ensuring the majority of members are serving judges, retired judges, or senior lawyers nominated by independent bodies.
3. Maintains some role for constitutional monarchs to respect Malaysia’s structure as a constitutional monarchy.
4. Embeds transparency by ensuring all appointment criteria, processes, and outcomes are better communicated to the public.

At the same time, Malaysia must avoid the pitfalls of systems that isolate the judiciary too far from external accountability.

India’s collegium system, in which judges appoint other judges, is often held up as a model of total judicial independence. However, this system has also been heavily criticised for being opaque, elitist, and lacking public accountability. The judiciary in India often operates in a black box, making it resistant to scrutiny from Parliament or the public.

That kind of insularity is not suitable for a country like Malaysia, where checks and balances, not judicial supremacy, are a constitutional cornerstone.

Malaysia is a Westminster-style democracy, but with a written constitution like Australia’s. As a result, the judicial appointment systems of Australia and the United Kingdom (UK) offer more relevant templates.

In the UK, the Judicial Appointments Commission is a fully independent body. The majority of its members are laypeople or non-judges. Crucially, the Lord Chancellor (a cabinet minister) has a limited role—they can accept, reject once, or request reconsideration of a name, but cannot appoint unilaterally.

Australia uses a more consultative model, involving federal and state attorneys-general, the judiciary, and sometimes bar associations—with appointments ultimately being made by the executive, but following structured advice and public criteria. The key is institutionalised consultation and transparency, not absolute control by any single branch.

Malaysia needs a hybrid approach: a JAC that appoints judges, but with limited feedback from the executive to ensure that the public interest is advanced. A body that is credible, diverse, and respected by all—not just by the judges it appoints. In essence, the executive’s role in the appointment of judges must be limited to accepting or requesting the reconsideration of a nominee. Also, a clear timeline must be established that allows the executive to act on judicial appointments and ensure vacancies are filled timeously.

Beyond these structural issues, there is a looming operational crisis. As has been consistently highlighted, the sheer number of judicial vacancies is threatening justice itself.

The High Court in Kuala Lumpur (the nerve centre of Malaysia’s judiciary) is so under-resourced that it is now giving trial dates five years into the future. This is not a statistic. It is a denial of justice. As the saying goes: “Justice delayed is justice denied.”

The problem is not just theoretical, as it affects commercial certainty, investor confidence, the lives of accused persons, and civil claimants who may never see their day in court before they die.

Filling judicial vacancies must be a top national priority, not an administrative afterthought. Reforming the JAC will help ensure that qualified judges are appointed quickly, transparently, and free from any political interference.

On the other side of the coin: judges are not elected. They do not campaign. They are not removed by vote. That makes institutional accountability all the more important.

In Ayers-Caesar v Judicial and Legal Service Commission, the UK Privy Council ruled that a judge’s resignation (allegedly coerced by the Chief Justice and the Commission) was unlawful. The court stressed that, even when well-intentioned, circumventing formal constitutional processes by informal pressure erodes judicial independence. In essence, judicial accountability must be subject to due process.

Meanwhile, in Haris Fathillah v Azam Baki, Malaysia’s Federal Court maintained that criminal investigative bodies can investigate sitting judges, but only with procedural safeguards to protect judicial independence. Investigations must be bona fide, confidential, and done in consultation with the Chief Justice—not as political hit-jobs.

The JAC must become the JAAC: the Judicial Appointment and Accountability Act.

Any reform to the JAC must also include a clear, fair, and transparent process for handling complaints against judges. Beyond what is determined in the Federal Constitution for removing a sitting judge, we need an up-to-date, practical approach to handling complaints against judges as the Federal Court held in Harris Fathillah.

A reformed judicial accountability system must include a clear and structured process for handling complaints against judges. This should begin with a mechanism for receiving complaints, followed by a preliminary assessment to determine their credibility. If the complaint is found to have merit, it should proceed to an independent inquiry panel to ensure impartial evaluation. Throughout the process, the judge must be afforded full due process rights, including the opportunity to respond to and defend themselves from accusations. Where misconduct is proven, appropriate sanctions should be applied to maintain public confidence and uphold the integrity of the judiciary.

The Judicial Commission of New South Wales offers a good model in the form of a transparent, structured, and public-facing mechanism that balances judicial independence with meaningful scrutiny. Such reforms enhance, not erode, public trust.

The judiciary is not just a legal institution. It is a moral pillar of democracy, the final arbiter of rights and liberties, as well as the buffer between the individual and the state.

Today, Malaysia stands at a crossroads. It can either entrench a stronger, more independent judiciary that the public can trust, or it can allow ambiguity, delay, and politicisation to further corrode confidence.

Prime Minister Datuk Seri Anwar Ibrahim has pledged reform. He has the moral authority, the constitutional power, and the parliamentary numbers to deliver. If he does, he will leave a legacy far greater than budgets or slogans. He will safeguard the Constitution itself. But the window is narrow. Freeing up the judiciary cannot wait.