Anwar Seeks to Put Ally on Malaysia’s Highest Court
Critics point in alarm to bad old days under Mahathir, Najib
Malaysia’s legal community is up in arms over what is widely believed to be a bid by Prime Minister Anwar Ibrahim to bypass their recommendations to appoint a political ally, the current attorney general, the 56-year-old Ahmad Terrirudin Salleh, to a vacancy on the nation’s highest court, rekindling concerns over the independence of the country’s judiciary that had been assuaged over the past several years by an independent commission to make recommendations on appointments.
Somewhere, being quietly milled by the wheels of justice – or not – are cases involving Anwar’s indispensable ally Deputy Prime Minister Ahmad Zahid Hamidi, who faces scores of corruption charges; former Prime Minister Najib Razak, a political heavyweight and continuing kingmaker now serving a (reduced) 12-year sentence for corruption in one of the biggest largest money-laundering scandals in history and expected to be tried for more offenses; his wife, Rosmah Mansor, convicted but free on appeal of corruption charges; former youth and sports minister Syed Saddiq Abdul Rahman, on trial for alleged criminal breach of trust and misappropriation of funds belonging to his former party, Parti Pribumi Bersatu Malaysia; former finance minister Daim Zainuddin, a close ally of former Prime Minister Mahathir Mohamad, on an array of corruption charges, and a bunch of court cases involving whether the religious courts or the civil ones take primacy.
Any or all have the potential to upset Anwar’s political applecart, in addition to cases involving garden variety corruption from contracting allocation favoritism. Any or all could use a guiding hand on the nation’s highest court.
The prime minister hasn’t announced an appointment. However, he has rejected several nominations of members of the appellate bench, and associates say he wants Terrirudin, whom he appointed the country’s chief law enforcement official less than a year ago after being named solicitor general before that. After naming Terrirudin to the Federal Court, the critics say, Anwar is angling to replace Justice Zabidin Diah, who retired on February 29, with him as chief justice.
“There is no objectively cogent or compelling rationale for this unusual step when there are in fact several eminently qualified judges of the Federal Court who are more senior and experienced, any one of whom could have been immediately appointed to the position of Chief Justice in February, when it became vacant,” said eight former presidents of the Malaysian Bar in an open letter to the press printed on July 15. “The adverse effect on their morale and the institution of the judiciary as a whole, by virtue of this continuing delay to appoint from within, cannot be overstated.”
Terriruddin, the authors wrote, has no experience as a judge in either the high court or the appellate courts, adding that the appointment “would be a clear display of recklessness and hypocrisy by this government.” Anwar’s own political party Pakatan Harapan, “for decades has pressed for transparency, accountability, non-interference in the appointment of judges, and an independent judiciary — if it is indeed taking steps that may well undermine such principles.”
Behind the concerns of the bar and a range of other critics is a 36-year history of political mayhem committed on Malaysia’s judiciary starting in the 1980s by former premier Mahathir Mohamad, who fired the entire supreme court in 1988 after a series of rulings against his decisions and installed his own court. Interestingly, when Tunku Abdul Rahman, was quoted objecting to Mahathir’s action in a New York Times article, the then Education Minister, Anwar Ibrahim, called the Tunku “a grand old man who has done his bit.” Ironically, Anwar has complained bitterly that he was jailed twice in trials called trumped up by international rights organizations because he said judges were subservient to Mahathir and Najib.
“I think Terrirudin’s savvy enough, Anwar just wants a pliable chief justice,” said a source who asked not to be named. He pointed out that when Mahathir declared war on the courts in the 1980s, his two closest advisers were his key ally, Daim Zainuddin, and Anwar. “Anwar was happy to go along with it then, and he’s happy to go along with it now. He wants a compliant chief judge. Terri is a likeable AG, according to most lawyers. But his total lack of experience and Anwar’s interference is what they think is wrong.”
During his 23-year reign, Mahathir repeatedly with the courts, at one point calling the judiciary a “black sheep who want to be fiercely independent,” and accusing them of playing to public opinion. Several high court judges were reassigned to different divisions. After the notorious 1987 Operation Lalang in 1987, in which the government made a wholesale arrest of 119 people including political activists, opposition politicians, intellectuals, students, artists, scientists, and others without trial under the draconian Internal Security Act, the High Court ordered lawyer and Democratic Action Party leader Karpal Singh freed from detention. A tribunal later removed Tun Salleh from his office, although three judges were later reinstated. In the end, Mahathir wiped out the high court and bent the lower courts to his will.
“Since that action, recognized as a watershed event in Malaysia’s constitutional history, the judiciary has been viewed as deferential to the executive,” wrote Bjorn Dressel, an associate professor at the Crawford School of Public Policy, The Australian National University, in February 2021, in the East Asian Review. “Former prime minister Abdullah Badawi made an effort to move past the 1988 constitutional crisis and strengthen the independence and autonomy of the courts by creating an independent judicial appointments commission in 2009 but with limited effect.”
But, Dresse wrote, “Our recent empirical study of the Federal Court in 102 high-profile political cases between 1957–2008 offers considerable evidence that ethnicity, appointment after 1988 and the appointing prime minister were closely associated with the direction of voting in ‘mega-political’ cases. The study lends support to widely held public concerns that nonjudicial factors shape Federal Court decisions, particularly since 1988. It also raises uncomfortable questions about what the growing involvement of courts in politics might mean for Malaysia’s future.”
Since the Pakatan Harapan coalition came to power in 2022, the system has been given generally high marks for its judicial appointments. “A highly competent, robust, and independent judiciary is an indicator of whether a nation is truly built on democracy and the rule of law,” the former Bar leaders said in their open letter.
“Malaysia is indeed fortunate that it has recovered from the 1988 judicial crisis and currently enjoys the distinction of having a courageous and independent judiciary. It has taken the country more than 30 years to arrive at this position. It was also not too long ago that we had a Royal Commission of Inquiry into the controversy concerning appointments of and interference with judges. The result is the enactment of the Judicial Appointments Commission Act 2009. We had to learn the bitter lesson that while the independence of the judiciary can be destroyed in an instant, rebuilding and reestablishing its independence can take decades.”