MALIK Imtiaz Sarwar’s recent commentary on the Federal Court appointment process suffers from a fatal blend of selective history, doctrinal confusion, and strategic omission. It purports to defend “judicial independence” but instead pushes a revisionist view that subtly undermines constitutional supremacy, particularly the deliberate role reserved for the Prime Minister under Article 122B of the Federal Constitution.

Let us be clear: the Malaysian Constitution vests judicial appointment power in the Yang di-Pertuan Agong, acting on the advice of the Prime Minister — not the Judicial Appointments Commission (JAC). The JAC is a creature of statute, not of the Constitution. Parliament cannot, through legislation, displace or fetter constitutional discretion. That is a first-year constitutional law principle. Malik’s attempt to elevate the JAC Act to quasi-constitutional status is both incorrect and dangerous.

1. Mischaracterising delay and discretion

Malik criticises the delay in appointing the Chief Judge of Malaya without acknowledging that the Prime Minister is under no legal obligation to accept JAC recommendations wholesale or within an arbitrary timeline. Article 122B does not prescribe a statutory deadline, nor does it elevate administrative convenience over constitutional discretion. Decisions of this gravity warrant careful consideration — not public appeasement through rubber-stamp appointments.

2. Romanticising the JAC

The article glorifies the JAC Act 2009 as a sacred instrument of judicial independence. But Malik omits the fact that even under the JAC, the Prime Minister retains constitutional primacy. The Commission only recommends; it does not appoint. Section 27 of the Act affirms this. Furthermore, how can a body chaired by the Chief Justice (who stands to influence or benefit from succession decisions) be considered a neutral gatekeeper? The conflict of interest is institutional, not hypothetical.

The same Malik who invokes Raja Azlan Shah’s warning against untrammelled discretion ignores his corollary point: judicial power must remain within constitutional limits. When an unelected body created by statute begins to function as a de facto constitutional checkpoint, it is not safeguarding the Constitution — it is subverting it.

3. Judicial Independence ≠ JAC Supremacy

Malik erroneously conflates judicial independence with statutory formalism. Independence is a structural safeguard, not a rigid bureaucratic mechanism. The true safeguard lies in transparent constitutional accountability, not insulation from executive scrutiny. The Prime Minister’s duty is not to serve the JAC but to uphold the Constitution. Judicial independence does not mean judicial monopoly over appointments.

The Prime Minister has the legal right — and political responsibility — to reject unsuitable candidates, especially where institutional neutrality is in question. The idea that “objective criteria” alone can guarantee independence is naïve. Integrity, like merit, is ultimately a judgment call.

4. 1988 as a misused crutch

Malik, like many JAC defenders, invokes the 1988 judicial crisis as justification for perpetual insulation of judicial appointments. But this ignores the fact that the current Federal Constitution — post-1994 amendments — already codifies judicial powers under Article 121(1). The assertion that every executive role equals interference is a slippery slope to judicial absolutism.

His argument, if accepted, would justify judicial input into Cabinet appointments “to ensure independence.” The Constitution envisages checks and balances, not judicial autarky.

5. On the appointment of TS Ahmad Terrirudin

Malik Imtiaz’s innuendo-laden criticism of Tan Sri Ahmad Terrirudin Mohd Salleh’s appointment to the Federal Court is unfounded both in law and principle. Article 122B(1) of the Federal Constitution does not impose any requirement that an appointee to the Federal Court must have previously served as a judge of the High Court or the Court of Appeal. The only express qualification for judicial appointment under Article 123 is that the candidate be a Malaysian citizen of high moral character and has been an advocate and solicitor of the High Court for at least 10 years — or has served in the judicial and legal service for that period.

Tan Sri Terrirudin, having served as Solicitor-General and then Attorney General, not only meets but far exceeds these constitutional prerequisites. His experience spans the full spectrum of constitutional litigation, criminal law, public administration, and institutional reform. It would be regressive and intellectually dishonest to claim that such experience — simply because it occurred outside the robes of the judiciary — is inferior to that of career judges. The Federal Court bench should reflect a plurality of perspectives, including those from the highest legal office in the land.

Moreover, the Federal Constitution expressly allows for such direct appointments. The notion that only judges promoted through the courts can ascend to the apex bench is a judicial caste fiction, not constitutional fact.

Malik’s suggestion that the appointment was made in circumvention of more “deserving” judges is speculative, disrespectful, and dangerous. It implies a right to promotion within the judiciary. Judicial appointments are not a matter of seniority or tenure — they are about suitability, institutional needs, and constitutional judgment. No judge has a vested entitlement to ascend to the Federal Court.

The further insinuation that Terrirudin’s appointment somehow “preceded” that of another judge (Datuk Seri Hasnah) is a classic case of speculative sequencing — factually unverified and legally irrelevant. The Prime Minister is entitled to evaluate judicial appointments individually, on their respective merits and policy implications. Malik’s criticism effectively suggests that appointments must follow an internal pecking order — yet there is no such constitutional or legal doctrine.

Finally, the idea that the appointment undermines public confidence is not supported by any empirical basis. In fact, it is Malik’s own commentary — saturated with insinuation and framed to provoke doubt — that does more to undermine confidence in the judiciary than any lawful appointment ever could.

6. The real danger: Judicial overreach in disguise

Malik ends with a moralistic tone, calling for reform, transparency, and judicial empowerment. But behind this liberal rhetoric is a clear ideological agenda: to elevate a statutory commission over the constitutional role of an elected executive. That, in truth, is the gravest threat to democracy and judicial independence.

This government must not be cowed by Bar-room theories that mistake constitutional loyalty for executive subservience. Reform must be based on constitutional fidelity, not elite anxieties about “perceptions.” The Constitution does not yield to public sentiment or media narratives — it governs them.

*The author is an experienced legal practitioner who frequently engages in legal discourse.