FMT:
Judicial independence not an excuse to override constitution
Letter to the Editor
If principles are applied only when convenient, reform efforts risk losing both credibility and moral force
From Mahathir Rais
Not every call for reform signals progress, just as silence is not always a sign of weakness.
In a system grounded in constitutional principles, maintaining clear boundaries between institutions is not only important but essential to stability and public trust.
When one institution begins to openly question the role of another, especially from within the judiciary itself, the issue at hand goes beyond reform. It touches the delicate balance of power that underpins the nation’s system of governance.
Chief Justice Tengku Maimun Tuan Mat’s suggestion to remove the prime minister’s role in judicial appointments has drawn a range of responses. Ramkarpal Singh, among the most vocal supporters, dismissed Nazri Aziz’s criticism as baseless. Yet, Nazri raises a point that deserves honest consideration.
If the existing appointment process is now seen as flawed, what does that imply for appointments previously made under the same system, including that of the current chief justice? Can one benefit from a structure, only to question its foundation once elevated by it?
This is not a personal matter. It is a question of principle, and principles only carry weight when applied consistently, regardless of who is involved.
The Federal Constitution is not merely a legal document. It is the foundation that defines and balances the responsibilities of each branch of government.
Article 122B clearly states that judicial appointments are made by the Yang di-Pertuan Agong on the advice of the prime minister after consultation with the Conference of Rulers. This role is not ceremonial. It is part of a system of checks and balances designed to ensure that no branch operates without accountability.
Proposals to remove the prime minister from this process are not administrative tweaks. They constitute structural change to the constitution and require formal amendment. To equate this with policy reforms such as abolishing the mandatory death penalty or separating the attorney-general’s prosecutorial powers is misleading. One deals with legislative policy. The other concerns the very design of state power.
The manner and forum in which this proposal was delivered also warrant reflection. When a sitting chief justice publicly calls for changes to executive roles in judicial appointments, especially on an international stage, it places the judiciary in a difficult position.
The public expects judges to remain impartial and to speak through judgments, not public declarations. When the judiciary’s voice becomes prominent in constitutional or political debates, it risks undermining its image of neutrality and integrity.
This does not mean that the judiciary must remain silent. But structural reform must follow the proper democratic route through Parliament, open consultation and engagement with all relevant stakeholders. It should not be led by those currently serving within the institution affected.
The strength of the judiciary lies in its ability to remain impartial, not in its participation in public discourse that rightly belongs to the legislative and executive branches.
The 1988 judicial crisis is often cited as justification for reform. While that history is important, it should not be used as a reason to overhaul the system hastily.
Much progress has been made since then. The establishment of the Judicial Appointments Commission in 2009 marked a significant step toward transparency and integrity. If shortcomings remain, they should be addressed by strengthening existing mechanisms, not by weakening the constitutional balance of powers.
Although unpopular in some circles, Nazri’s concern brings us back to a fundamental truth: if the process now being criticised was defective all along, then every appointment made through it carries that same shadow, including those who are now calling for change.
The point here is not to discredit individuals, but to remind us that legitimacy cannot be selectively applied. Consistency in upholding institutional processes is the cornerstone of public confidence. When principles are applied only when convenient, reform efforts risk losing both credibility and moral force.
Real reform cannot be driven by fleeting sentiment. It must be grounded in principle, executed through a lawful process, and involve participation from all branches of government.
The judiciary plays a vital role in upholding the rule of law, but it is not the sole guardian of the state. When any institution begins to define the limits of its own power without external checks, the result is institutional imbalance. Even with good intentions, such actions can erode the very trust they seek to protect.
Judicial independence cannot be divorced from the constitutional context. It functions best when every institution respects its limits, acts in partnership, and remains accountable within the system.
A mature democracy is not built by empowering one branch absolutely, but by ensuring the entire system operates in balance, with transparency and mutual respect.
That is the true foundation of a credible state —one guided not only by justice, but by humility and restraint.
Mahathir Rais is the former secretary of Bersatu and Perikatan Nasional’s federal territories chapters.