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From Asheeq Ali Sethi Alivi
The recent opinion piece by former Malaysian Bar presidents, while cloaked in concern for judicial independence, inadvertently undermines the very principles it claims to defend.
By framing the non-extension of three Federal Court judges’ tenures as a “profound mistake” and insinuating political retribution, the signatories engage in speculative lobbying that risks eroding public trust in the judiciary.
Here, we dismantle their arguments and expose the dangers of their approach.
The flawed presumption of automatic extensions
The core fallacy of the opinion piece is the treatment of tenure extensions under Article 125(1) as an entitlement, rather than a discretionary constitutional provision.
The authors lament the non-extension for Chief Justice Tengku Maimun Tuan Mat and Justices Abang Iskandar Abang Hashim and Nallini Pathmanathan as “unacceptable treatment,” ignoring that extensions are subject to the Yang di-Pertuan Agong’s approval based on holistic considerations, not merely seniority or past performance.
They omit that extensions have been denied before (for example, former chief justice Ahmad Fairuz Sheikh Abdul Halim), proving they are neither routine nor guaranteed.
The judiciary thrives on a periodic infusion of new talent. Retaining judges indefinitely risks stagnation, whereas planned transitions allow for diverse perspectives and innovation.
The hypocrisy of ‘perception’ as argument
The opinion piece weaponises unverified perceptions, claiming the non-extension signals “retribution” or a demand to “toe the line”, without evidence. This is not just irresponsible; it is institutionally damaging.
Asserting that the government seeks “patronage or support” through judicial appointments is a grave accusation with zero substantiation. Such claims themselves constitute interference in judicial processes.
The government’s silence on the matter reflects respect for due process, not indifference. Publicly debating appointments before formal decisions only serves to pressure the Yang di-Pertuan Agong and Judicial Appointments Commission (JAC), violating the separation of powers.
The real threat: lobbying and public pressure campaigns
The former Bar presidents’ public intervention sets a dangerous precedent.
By mobilising former officeholders to demand specific outcomes, the Bar transforms judicial appointments into a political battleground. This mirrors past crises, like the 1988 judicial collapse, where external pressure fractured judicial independence.
Open lobbying implies that judges require “protection” from the government, implying they are not impartial. This erodes public confidence far more than routine retirements. Such campaigns risk intimidating sitting judges.
Selective amnesia on the Bar’s own principles
Ironically, some of the same signatories previously condemned tenure extensions as unconstitutional power grabs. In 2018, the Malaysian Bar celebrated the resignations of Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin, declaring their appointments “blatantly unconstitutional”.
Today, they demand extensions for favoured judges, exposing double standards.
Forward path: trusting institutions, rejecting lobbying
The government’s restraint demonstrates fidelity to constitutional governance:
- Respect for the JAC’s mandate: The commission, not a lobby group, holds statutory authority to evaluate judges. Its confidential deliberations ensure candid assessments.
- Systemic reform over personality politics: Instead of fixating on individuals, we should pursue structural changes, such as raising judicial retirement ages (a reform the Bar itself has proposed) and increasing remuneration to attract top talent.
- Rejecting crisis narratives: The “exodus” of nine judges over two years is a natural turnover, not institutional collapse. Malaysia’s judiciary remains strong, with mechanisms in place to elevate new leaders.
Sovereignty over spectacle
The independence of the judiciary is not preserved by public relations campaigns, but by resisting them.
The former Bar presidents’ well-intentioned but misguided intervention risks substituting constitutional processes with mob appeal.
Their demands for transparency in appointments ignore that true judicial independence requires insulation from public opinion, not pandering to it.
The government’s commitment to the rule of law is proven by its refusal to cave to pressure, ensuring appointments remain merit-based, not personality-driven.
Malaysia’s judiciary deserves better than to be weaponised by legacy-seeking elites. It deserves a government that protects its independence by shielding it from their lobbying.
Asheeq Ali Sethi Alivi is the Batu PKR division chief and a practising lawyer.
The views expressed are those of the writer and do not necessarily reflect those of FMT.
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