Beware The Rise Of The Unaccountable Bench

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From Apandi Ali
The debate over judicial appointments in Malaysia has intensified recently with a few people, from legal scholars to legal practitioners, defending Chief Justice Tengku Maimun Tuan Mat’s call for greater insulation of the judiciary from executive oversight.
They suggest that the prime minister’s power to reject names recommended by the Judicial Appointments Commission (JAC) is antithetical to judicial independence, and that judges should be appointed based solely on merit, free from political preference.
While such views are often well-intentioned, they run the risk of enabling a new problem: the slow emergence of an unaccountable bench, a judiciary that answers to no one, yet wields the power to reshape public life through constitutional interpretation.
The call to entirely remove the prime minister’s role from judicial appointments would tilt the constitutional balance and, paradoxically, endanger the very accountability that protects democratic institutions from overreach.
Malaysia’s constitutional framework is clear. Under Article 122B of the Federal Constitution, judges of the superior courts are appointed by the Yang di-Pertuan Agong on the advice of the prime minister, after consultation with the chief justice and Conference of Rulers.
JAC, established by statute in 2009, plays a vital role in vetting and recommending candidates – but it is not, and never was, intended to displace the constitutional role of the executive.
To suggest that JAC’s recommendations must be binding – effectively removing the prime minister’s discretion – is to propose a judiciary accountable only to itself. This represents a shift from independence to isolationism.
As many constitutional scholars have warned, independence of the judiciary does not mean that judges are to be left in splendid isolation. This reflects a fundamental truth: no branch of government can be left completely unchecked.
The judiciary, by design, is unelected. It draws legitimacy not from the ballot box, but from its adherence to constitutional and legal norms.
The prime minister, on the other hand, is elected by the people and accountable to Parliament. His role in the judicial appointment process is the public’s only indirect influence over who interprets the laws they vote for.
To remove this role entirely is to cut off that connection, leaving judicial ideology to evolve within an echo chamber of legal insiders – potentially out of step with the cultural, social, and moral expectations of the nation.
Merit is essential, but merit must be evaluated in context, not in abstraction. Legal excellence alone is insufficient without the humility to serve in a system of shared powers and mutual accountability.
Supporters of judicial insulation often cite global examples, but executive involvement in judicial appointments is standard even in established democracies.
In Singapore, judges are appointed by the president on the advice of the prime minister. In the UK, the lord chancellor – a political office – still plays a formal role. In the US, federal judges are nominated by the president and confirmed by the Senate.
These models do not diminish judicial independence – they reinforce it through institutional checks, public trust, and shared responsibility.
Recent Malaysian court decisions have revived the controversial basic structure doctrine, allowing courts to invalidate laws that allegedly offend the “basic structure” of the constitution – a concept never explicitly codified.
This doctrine, borrowed from India, has led to increasing concerns about judicial supremacy in a system meant to be balanced by three co-equal branches.
India, where the phrase “tyranny of the unelected” was coined to describe judicial overreach, is already grappling with the consequences of an overly assertive bench.
Malaysia should take heed before walking the same path.
If judges can strike down laws based on unwritten principles – and also determine who joins their ranks – we risk creating an ideological monopoly within the judiciary, unmoored from public accountability.
These people’s support for judicial independence is understandable, but their proposal risks swinging the pendulum too far.
Instead of removing the prime minister’s role, we should focus on refining the appointment process: strengthen JAC, improve transparency, and require reasoned decisions where appropriate.
We cannot abandon the prime minister’s role entirely. The judiciary must be independent, yes – but it must also remain connected to the people’s mandate through a process of balanced, constitutional design.
We do not preserve the rule of law by sidelining democracy. We uphold it when each institution – judiciary, executive, and legislature – performs its role within the framework laid out by the constitution.
Independence without restraint is not strength. In time, it will be a threat to the very freedoms it seeks to protect. - FMT
Apandi Ali is a former attorney-general.
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.

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