Hitam Putih is one year old! 🤩 And man, what a whirlwind year it has been.
From courtroom dramas that captivated the nation to political manoeuvres that left us questioning our democracy, Malaysia's legal and political landscape has been anything but dull. The past year has truly tested our nation's commitment to the Rule of Law —our safeguard against arbitrariness — exposing cracks in our institutions and underscoring the delicate balance needed to uphold justice and democracy.
Pardon Me... An Addendum?!
Najib's partial pardon split the nation. There are those who feel that it is deserving (because of his past "contributions"), there are those who feel that he should not be pardoned (because he is not at all remorseful), and there are those who think that the partial pardon is not enough (because Bossku).
Regardless of the sentiments, the decision to halve Najib's prison sentence and reduce his fine was legal and constitutional. It was discussed in the Pardons Board, albeit not entirely transparent as the Pardons Board is not required to give reasons for their decisions. We thought that it was bad enough and wrote about it previously.
Without reasons, scrutiny is impossible, and without scrutiny, the Rule of Law risks being supplanted by arbitrariness.
When the saga seemed over, an unprecedented twist rocked the nation — an “addendum” fell from the Heavens and threw Malaysia’s constitutional framework into uncharted waters. This has never happened before in the history of the world, let alone in Malaysia.
The addendum order was made by the former King, reportedly outside of the Pardons Board meeting, purportedly to allow Najib to serve the rest of his sentence in his home sweet home.
In the coming months, the High Court will have to decide whether the King has the unfettered discretion or prerogative to make an addendum order just like that, or must it be discussed in the Pardons Board meeting first?
The constitutionality of this "addendum" now hangs in the balance.
We have previously written about how Emeritus Professor Datuk Dr. Shad Saleem Faruqi argued that the power of clemency is not a personal prerogative of the King, and he is bound by the advice of the Pardons Board under the Constitution.
If this interpretation holds, the royal addendum could be deemed unconstitutional, as it bypasses the required process. Any such arbitrary use of clemency powers would not only undermine the Rule of Law but also set a dangerous precedent for future executive overreach.
The High Court is now tasked with determining whether the former King acted within his constitutional authority (tough one... we know). This decision will have far-reaching implications for Malaysia’s legal and political future:
Will the judiciary affirm the Rule of Law and strike down arbitrariness?
Will the AGC even mount a robust challenge to uphold constitutional principles, or will they let the addendum stand unchallenged, as has happened before?
We can't stress how crucial the determination of this matter is to the integrity of Malaysia’s constitutional democracy. As the nation watches, the Court and the AGC must rise to the occasion, lest we inch closer to a system where power is wielded without accountability.
Executive Overreach on Judicial Appointments
For over eight months, the position of the Chief Judge of Malaya (CJM) remained conspicuously vacant. Despite the Judicial Appointments Commission (JAC), which consists of representatives from across the legal fraternity, promptly submitting its recommendations following the former CJM’s retirement, PM Anwar was dissatisfied and requested for two more names to be submitted.
Months passed with no apparent progress, leaving the judiciary in a limbo. Then, in September 2024, as the terms of more than half of the JAC members quietly ended, a sudden development emerged... the Attorney General, Ahmad Terriruddin was tipped for elevation to the Federal Court, and the CJM role.
However, as half of the JAC was no more and the vacancies were not immediately filled by the PM, the JAC did not have quorum to convene their monthly meeting to make any decisions. This created a vacuum that, intentionally or otherwise, paved the way for Executive manoeuvring.
It seemed as though it was a deliberate move so that certain appointments could be made without going through the JAC. Strictly speaking, judicial appointments under the Federal Constitution are made by the King on the advice of the Prime Minister, with no explicit mention of the JAC’s role. This loophole allows the PM significant discretion to appoint according to his whims and fancies.
And true enough, the former AG was soon elevated to the Federal Court. Was his elevation through the newly reconstituted JAC (vacancies filled merely one day prior)? We don't know and it certainly does not appear so, since they were only scheduled to convene the following month.
The creation of the JAC under the Judicial Appointments Commission Act 2009 was hailed as a reform to reduce executive control over the judiciary. However, as this episode demonstrates, the Act lacks the robustness required to truly insulate the judiciary from political interference.
We saw first-hand what looked like an Executive attempt to sidestep or abuse the judicial appointments process.
The events surrounding the CJM appointment underscore the urgent need for stronger protections. The JAC Act 2009 is not enough. By failing to embed the JAC’s processes and principles into the Constitution, the door is left wide open for the Executive to exert undue influence over judicial appointments.
We say it once again, at the risk of repetition: the JAC must be embedded into the Constitution to guarantee transparency, accountability, and genuine independence in judicial appointments.
The Judiciary has made significant strides in recent years, but moments like this threaten to reverse that progress. The sooner we strengthen it, the better we safeguard Justice for all.
Of Political Prosecutions and DNAAs
Going back to our first ever blog post... It's crazy how things have gotten so much more unbelievable since. Back in 2023, when DPM Zahid Hamidi’s charges were dropped by the prosecution, the nation was left reeling. Shortly afterwards, the same prosecution pursued Syed Saddiq with unparalleled determination, securing a conviction against him.
Why did the AGC wield an iron fist against the small fish while letting the big fish slip away? The answer, unfortunately, lies in politics. This is why the separation of the Public Prosecutor and the Attorney General must be expedited.
In 2024, Najib was also granted a DNAA in a lesser-known corruption matter. Not long after, former first lady Rosmah Mansor was acquitted of corruption charges. Her acquittal was attributed to what was described as a “rushed and flawed” prosecution initiated during Tun Mahathir’s second term as Prime Minister.
Even PM Anwar described prosecutions during Tun M's tenure as being carried out “with such venom and enmity,” driven by “political vengeance by those in power at the time.”
We could not have said it better than the PM himself. Yet, has this supposed era of “venom and enmity” truly ended? Or has it merely changed hands to the current administration? Somebody, give this man a mirror!
Take, for instance, the case of the late Tun Daim Zainuddin. The ex-finance minister under Tun M's first term who faced charges filed by Anwar’s AGC, just ten months before his passing in November 2024. Merits aside, he was extremely frail when he attended Court. These charges were subsequently dropped after his death, leaving a sour taste about their timing and intent.
Anwar also had a Royal Commission of Inquiry (RCI) formed to investigate Tun M's decision to withdraw from the International Court of Justice (ICJ) Pulau Batu Puteh matter against Singapore. The RCI's conclusion was that Tun M should be investigated under the Penal Code for cheating.
Tun M has raised doubts towards the partiality of the RCI, and rightly so. Merits aside, the public perception appeared to be this: the suggestion that Tun M, known for his historically contentious relationship with Singapore, would betray Malaysia for Singapore's benefit, stretches credibility.
These cases highlight a disturbing trend: the selective use of prosecutorial power and investigations seemingly targeted at political adversaries. Whether it’s retribution or manipulation, the result is the same — the erosion of public confidence in the mechanisms of Justice.
It left us wondering, have the mechanisms of Justice and the Rule of Law been twisted and weaponised by the Executive?
What's Next for 2025?
If you had the privilege of listening to (or reading, like us) the Chief Justice's powerful speech at the Opening of the Legal Year 2025, you will find that we are merely echoing and amplifying the spirit of her speech.
One portion of Her Ladyship's speech, on the role of judges, is particularly instructive of how all branches of Government should act, without regard to personal interest:
A case, no matter its size, no matter the litigant, no matter the external circumstances, no matter the price, no matter the interest and certainly no matter your personal view, is ancillary to what the law and facts demand.
Even as young lawyers, we have been and are constantly reminded by the giants (or oldies) in the fraternity of the dark days for Rule of Law and the Judiciary — where the course of justice was tainted with political interference, corruption, and behind-the-scenes hanky-panky. We cannot go back again.
When decisions are made behind closed doors, when the powerful escape accountability, or when the Constitution is treated as malleable, the very fabric of justice unravels.
The events of the past year have underscored one undeniable truth: complacency is the greatest threat to the Rule of Law.
As the saying goes, the price of freedom is eternal vigilance. To all members of the Bar, we believe the Chief Justice's speech is a wake-up call, especially for younger members who will lead the Bar in the coming years. How the course of justice will run after the retirement of the ‘Iron Lady’ Chief Justice may not be entirely within our control — but we can influence it for the better if we do not tolerate injustice and call it out, like how the Bar has done so in the past, consistently.
So, what's next for 2025? Same as always!
Here's to another year of remaining watchful, scrutinising those in power and demanding integrity in every corner of governance. It is only through relentless vigilance and an unwavering commitment to justice that we can ensure that the Rule of Law prevails — not just in principle, but in practice.
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