How we're helping Malaysia strengthen its judiciary

Working to strengthen the judiciary in Malaysia

Malaysia is the only nation that uses regional rulers to elect its head of state, called Yang di-Pertuan Agong (YDPA), which translates to He Who Is Made Lord. This constitutional monarch’s duties include, among other things, appointing and removing judges, and there have been accusations over the years that too often politics get in the way of that. There have been reform efforts, but the nation’s constitution doesn’t include a true separation of powers, and so calls for reform continue from time to time.

That helps explain why NCSC has been working on a recently released report that details how judges in Malaysia are appointed and how the country’s leaders can improve the process in order to strengthen its judiciary. The report also compares Malaysia’s process with Singapore’s, and it highlights England’s model, which includes a limited role for the monarchy.

“In recent years, Malaysia has implemented important reforms to have a more independent judicial selection and appointment process,” said NCSC Program Specialist Isabelle Schrank, who co-wrote the report with Senior Legal Counsel Timothy Hughes. “It was exciting to do a comparative analysis of international standards and Malaysia’s current practices. …We hope the analysis will help to build consensus on how to make the process there more transparent, and we hope to continue to work with the Malaysian judiciary to make that happen.”

The report includes these observations to improve the process:

• Limit YDPA’s authority to reject judicial nominations from the Judicial Appointments Commission (JAC), a nine-member group created in 2009 to strengthen judicial independence. YDPA should rarely reject the JAC’s recommendations and only for the most pressing reasons. And when the recommendations come from the chief justice, JAC should vet them. Also, YDPA, who appoints four members of the JAC, should relinquish that authority.
• Build transparency into the process, and that includes letting the public know who has been nominated for judgeships. Establishing clear-cut guidelines in the selection and appointment process would also enhance transparency and promote public trust in the judiciary.
• Give JAC the responsibility to advise YDPA when removing judges from office. YDPA has a lot of authority to do that now without guidance. Malaysia also could establish an independent judicial removal board, and it should enact a law that spells out actions that constitute a breach of judicial ethics and are subject to disciplinary measures.

NCSC’s work was funded by the U.S. State Department’s Bureau of International Narcotics and Law Enforcement Affairs.

COVID-19 vaccination rates are increasing rapidly across the country, increasing the likelihood of resuming or expanding in-person jury trials.  Judicial policymakers are now asking under what conditions, if any, courts may ask prospective jurors to disclose whether they have received a COVID-19 vaccine as well as how to use that information when summoning and qualifying jurors for service.  A new RRT document identifies questions that state courts should consider when developing policies related to the collection and use of information about the vaccine status of prospective jurors in the summoning, excusal, and in-court jury selection process. Download that considerations document here.