Judges Formation And Why Their Independence Matters

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Much has been said about the importance of an independent judiciary.
The debate around judicial appointments and promotions has gained renewed urgency in Malaysia amid allegations of executive interference.
In our system, judicial independence is sacrosanct. Judges take an oath to uphold the Constitution. Our system must secure their independence.
But before we examine institutions and legal safeguards, we should begin with a more fundamental inquiry: How are judges formed? What qualities must they possess, and how do we cultivate individuals who are fit to hold this immense responsibility?
ADSThe making of a judge
Judges do not emerge fully formed from law school. Their development begins much earlier, often at home, rooted in values instilled by family and community. A sense of integrity, fairness, respect for others, and empathy - these are moral compasses developed long before one opens a legal textbook.
At school, students are exposed to knowledge that shapes their understanding of history, society, and humanity. Religious or ethical instruction, for many, forms an early foundation of justice and conscience. By the time they enter university, their intellectual focus narrows, but their moral compass should already be set.
Those who choose to read law are inducted into a tradition founded in the common law. Our justice system is adversarial in nature, where lawyers on both sides of the dispute argue their respective clients’ cases before an independent judge. This process is grounded in centuries of precedent.
Malaysia, adopting the English common law system, holds to the doctrine of stare decisis - that similar cases involving similar facts must be decided the same way. Decisions of higher courts bind the lower courts. Decisions from Commonwealth jurisdictions with similar statutory or common law frameworks are often persuasive. It is judicial reasoning that persuades, and it is judicial reasoning that is at the heart of the justice system.
As students progress through core subjects - contracts, torts, criminal law, evidence, procedure, and company law - they also develop analytical thinking, research skills, and advocacy. Good universities cultivate what we call the “legal mind”: the ability to dissect facts, identify issues, interpret statutes and judgments, and apply law to complex situations. Tutorials, moot courts, opinion writing, and case analysis all help sharpen these tools.
Graduates enter practice and are shaped by years of legal experience. Young lawyers cut their teeth on simpler cases. Over time, they tackle difficult issues, often in grey areas of law. They learn at the feet of senior counsel and judges. They gain insight not just into the law but into people - clients, judges, opponents -and into the human condition itself.
Those selected for judicial office are typically veterans of at least a decade in legal practice, though many have served far longer. Their legal knowledge must be profound. Their record must be unblemished. But they must also possess something more elusive: judicial temperament. The ability to listen patiently and observe closely. It is what happens in the courtroom that is important. Justice will be done in accordance with the evidence and the law.
As Lord Wright once noted:
“The duty of the judge is to do justice, but it is a justice according to law.”
That requires moral clarity and rigorous discipline.
The judicial vocation
ADSTo be a judge is to take an oath of office that demands total fidelity to the Constitution and the rule of law. A judge must rise above partisan politics, ethnic loyalties, or religious bias.
A judge cannot accept gifts from litigants. He must declare and recuse himself in any matter where a conflict exists. He must not merely avoid bias but avoid even the appearance of bias. In the words of Lord Hewart in R v Sussex Justices [1924]:
“It is not merely of some importance, but of fundamental importance, that justice should both be done and be manifestly seen to be done.”
Sometimes, the correct interpretation of the law or the decision to be reached from the evidence may not be to the liking of a judge, but he must proceed to make the right decision in accordance with the law and the evidence. Justice Antonin Scalia of the US Supreme Court put it bluntly:
“If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach.”
The law may at times compel decisions that are unpopular. Judges must possess the strength to decide according to principle, not preference.
This sentiment echoes in the wise words of Malaysia’s own Suffian Hashim, former lord president of the Federal Court, in a speech delivered in Singapore:
“In a multi-racial and multi-religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgment with our name deleted could with confidence identify our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot.”
This captures the heart of judicial neutrality and the inner discipline a judge must uphold in a plural society.
The life of a judge is one of discipline and hard work. He has to read voluminous documents. He has to listen patiently to witness testimony and lawyer submissions and, finally, decide on the matter before him, producing a well-researched, intensely analysed, reasoned judgment.
Both parties to the dispute must leave the courtroom satisfied that they had their day in court and that the judge was fair and impartial.
The reasoned judgment validates the process. It is the record of what was decided and the grounds for that decision. The judgment also enables the aggrieved party dissatisfied with the verdict to take his complaint with the judgment to the appellate court. Judges must accept that their decisions may be reversed on appeal. The reasoned judgment is the lifeblood of the judicial system.
The life of a judge is not an easy one. It is a vocation that demands integrity, discipline, and courage. It demands patience. Words must be measured. A judge also leads a solitary existence. Friendships must be very selective. He or she represents an institution that must be honoured and respected by all. Writing judgments is very hard work.
Selection and promotion of judges
We are past the point where the issue was the extension of six months for former chief justice Tengku Maimun Tuan Mat and two others and the appointment of successors to the top three positions in the judiciary.
Former chief justice Tengku Maimun Tuan MatThe time is past for extensions. And appointments to the top three positions have been made. We wish the new appointees well and trust that they will live up to the oaths they take and to the demands of their chosen vocation.
Our concern is for the future. It may be useful to examine the historical context for the establishment of the Judicial Appointments Commission (JAC) and to examine its effectiveness in ensuring that only the best candidates are selected for judgeship and for promotion to high office.
1. Constitutional framework
Under Article 122B of the Federal Constitution, judges of the High Court, Court of Appeal, and Federal Court - including the chief justice - are appointed by the Yang di-Pertuan Agong on the advice of the prime minister, who must consult key judicial figures. Article 123 requires that a judge be a Malaysian citizen with 10 years’ experience as an advocate or in legal service.
The Constitution is silent, however, on selection procedures or criteria. The JAC fills this void.
2. The role and structure of the JAC
The JAC consists of nine members: the top four judges, and five others appointed by the prime minister - one Federal Court judge and four “eminent persons”. The JAC screens candidates based on detailed criteria, including:
Integrity, impartiality, and moral character
Legal knowledge and writing ability
Judicial temperament (e.g. not arrogant or impatient)
Diligence, industry, and case management
Physical and mental health
They are also subject to background checks.
JAC recommendations are made by secret ballot and forwarded to the prime minister. However, the prime minister is not bound to accept these recommendations and may request additional names. Ultimately, it is the prime minister’s advice to the King that determines appointments.
As recently stated by Minister in the Prime Minister’s Department (Law and Institutional Reform), Azalina Othman Said, the Judicial Appointments Commission Act 2009 does not carry binding authority in the appointment of judges. This underscores the extent to which executive discretion remains intact despite the establishment of a screening body and published selection criteria.
Minister in the Prime Minister’s Department (Law and Institutional Reform), Azalina Othman SaidThis loophole or gap in the law weakens the independence of the system. Not only does the prime minister control the composition of the JAC, he can also ignore their recommendations.
It would be useful to quote a former chief justice on the subject. Sultan Azlan Shah is quoted as saying:
“The judges are independent of all - the Executive, Parliament, and from within themselves - and are free to act in an independent and unbiased manner. No member of the government, no member of Parliament, and no official of any government department has any right whatsoever to direct or influence the decision of any of the judges. It is the sure knowledge of this that gives the public confidence in the judges. The judges are not beholden politically to any government.”
- “The Right to Know”, 1986 public lecture, Universiti Sains Malaysia, Penang; reproduced in “Constitutional Monarchy, Rule of Law and Good Governance: Selected Essays and Speeches by HRH Sultan Azlan Shah” (2004), p59.
Judicial independence, in other words, cannot be reconciled with unchecked executive power over appointments.
3. Reform proposals
For that reason, there are growing calls - from the Bar and civil society - to reform the JAC. Proposals include:
Making the JAC fully independent, with no PM-appointed members
Transferring appointment powers to a parliamentary select committee
Mandating the PM to accept JAC recommendations unless specific objections are disclosed
Providing statutory criteria for judicial promotion
In fact, similar proposals to amend the JAC to reduce or remove executive influence were made in the 2018 Pakatan Harapan election manifesto. These reform commitments reflected public demand for greater transparency and insulation of judicial appointments from political control.
Why judicial independence matters
An independent judiciary is the final bastion of democracy. As Lord Denning wrote:
“Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’”
Judges are not born impartial - they are trained, shaped, tested, and chosen. Their formation is a matter of character and education. Their selection is a matter of national integrity. Their conduct is a matter of institutional survival.
In a constitutional democracy governed by the rule of law, we need judges who serve only justice, who hold their allegiance to the Constitution, the people, and the truth.
Their task is not easy. Judicial independence is not judicial tyranny, as some would maintain. The system must ensure that the judges who are selected are the best in head and heart and can be trusted to uphold the Constitution, the rule of law, and to see that justice is done, without fear or favour.
In the words of Lord Atkin, in his famous dissent in Liversidge v Anderson [1942] AC 206:
“In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty, for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.”
These are powerful words underlining the role of judges in ensuring adherence to the rule of law and of holding the balance between the rights of the individual and the power of the state. - Mkini
DAVID DASS is a lawyer, Malaysiakini subscriber, and commentator.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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