How Judges Are Appointed (and Removed) in Malaysia

Each time a new Chief Justice takes the oath of office, an old question resurfaces: who actually chooses that person, and who can remove them? In Malaysia, the answer involves two separate stages, two different legal documents, and an unresolved debate over where that power ought to lie.

Who appoints judges in Malaysia?

The formal appointment of superior court judges — of the Federal Court, the Court of Appeal, and the two High Courts — is made by the Yang di-Pertuan Agong under Article 122B of the Federal Constitution. He acts on the advice of the Prime Minister, and for the highest posts such as Chief Justice and President of the Court of Appeal, after consulting the Conference of Rulers.

But before that constitutional stage begins, a screening process takes place under the Judicial Appointments Commission Act 2009 (Act 695). The Commission’s official portal explains that the process under Act 695 is one that precedes the appointment process under Article 122B — it does not replace it. This is the “two-stage” structure that has characterised the Malaysian system since 2009.

What is the role of the Judicial Appointments Commission?

Act 695 establishes the Judicial Appointments Commission (JAC) to make the process of nominating and promoting judges more transparent and thorough. Section 2 of the Act also states that the Prime Minister “must uphold the continued independence of the judiciary”.

Section 5 sets out the nine-member composition:

Member	How the position is obtained
Chief Justice (Chairperson)	By virtue of office
President of the Court of Appeal	By virtue of office
Chief Judge of the High Court of Malaya	By virtue of office
Chief Judge of the High Court of Sabah and Sarawak	By virtue of office
A Federal Court judge	Appointed by the Prime Minister
Four “eminent persons” (not members of the executive or public service)	Appointed by the Prime Minister after consulting the Bar Council, the Sabah Law Association, the Sarawak Law Association and others

This arrangement means that five of the nine members are judges, while five members (a Federal Court judge and four eminent persons) are appointed by the Prime Minister — a feature frequently cited in discussions of the Commission’s independence.

How does the judge selection process work?

The JAC’s internal process is governed by Part IV of Act 695. In brief, it runs as follows:

1. Screening of candidates. The JAC receives or proposes names to fill vacancies. According to the explanation published by Malay Mail, candidates are vetted by several government agencies including the police, the MACC, the Companies Commission, the Insolvency Department and the Inland Revenue Board.
2. Eligibility criteria. Under section 23, a candidate must meet the requirements of Article 123 of the Constitution, and the JAC assesses, among other things, integrity, competency, experience, timely decisions, and physical and mental health.
3. Selection meeting. Section 24 sets a quorum of seven persons, and any vote must be made by secret ballot and by majority decision.
4. Number of names. Section 22 directs the JAC to select not fewer than three persons for each High Court vacancy, and not fewer than two persons for other superior court posts.
5. Report to the Prime Minister. Under section 26, the JAC submits a report stating the recommended candidates and the reasons for the selection.
6. Additional request. Section 27 allows the Prime Minister to request two additional names for senior posts such as Chief Justice, President of the Court of Appeal, Chief Judge, and judges of the Federal Court and the Court of Appeal.

After this stage, the Prime Minister gives his advice to the Yang di-Pertuan Agong under Article 122B, and the formal appointment is made.

How can a judge be removed?

Once appointed, superior court judges are protected by security of tenure. Article 125 of the Federal Constitution governs a judge’s tenure of office. According to the current text of the Constitution, a judge holds office until the mandatory retirement age, and may be granted a short extension before ending their duties. The current retirement age is 66 years, with the possibility of an extension of up to six months; this figure was reported by The Edge Malaysia in its coverage of the retirement and tenure extensions of senior judges in 2025. (Note: some older copies of the constitutional text still display the age “65”; the current figure of 66 should be verified against the official text of Article 125(1) on the Malaysian Legislation Portal.)

A judge cannot be removed merely at the will of the government. Article 125 permits removal only on limited grounds — a breach of a provision of the code of ethics prescribed under Article 125, or an inability, from infirmity of body or mind or any other cause, to properly discharge the functions of office.

The process, too, is strict. A representation regarding removal is submitted to the Yang di-Pertuan Agong — by the Prime Minister, or by the Chief Justice after consulting the Prime Minister. He then establishes a tribunal which, under Article 125, is composed of not fewer than five persons who hold or have held office as a judge of a superior court (or an equivalent office in another Commonwealth country). The tribunal investigates and makes a recommendation, and the Yang di-Pertuan Agong may act on that recommendation. For lighter ethical breaches that do not rise to the level of removal, the Constitution also provides for other mechanisms such as a judges’ ethics committee.

Why has this process become a focus of debate?

This two-stage arrangement has long been a focus of public discussion, and the issue rose to prominence again in 2025. Various parties have raised differing views; the following is a neutral summary of the main positions.

Concerns about executive discretion. Some analysts, including the ISEAS Perspective writing by Prof. Shad Saleem Faruqi, argue that the Prime Minister is not absolutely bound by the JAC’s recommendations, may request alternative names, and holds the power to appoint five of the Commission’s nine members. They propose reforms such as transferring the power to appoint JAC members to the Yang di-Pertuan Agong on the advice of the Chief Justice. The Conference of Rulers was also reported to have proposed on 30 November 2022 that the Prime Minister’s power to appoint JAC members be reviewed.

The position that emphasises the Prime Minister’s constitutional role. Conversely, there is a view that Article 122B does place the responsibility of advising the Yang di-Pertuan Agong on the Prime Minister, and that this role is part of the constitutional framework. Indeed, a legal challenge was once brought questioning whether the JAC Act interferes with the Prime Minister’s constitutional duty under Article 122B.

The events of 2025. In mid-2025, delays in filling vacancies and deciding on the tenure extensions of several senior judges — including the then Chief Justice, who reached retirement age in early July 2025 — drew public attention. According to The Edge Malaysia, the JAC was reported to have recommended the extensions earlier, but an official decision had not been announced at the time. These events triggered wide-ranging discussion about transparency and the separation of powers.

It should be stressed that this article presents facts and a range of views without taking sides. There is no single position that can be regarded as the “official answer” in this ongoing debate.

What comes next

Several reform proposals remain under public discussion and could change this picture in the future — among them proposals to raise the judicial retirement age, to review the composition of the JAC, and to strengthen the legal protections for judicial independence. Readers who wish to explore this further can refer to the full text of Act 695 and Articles 122B and 125 of the Federal Constitution, the official portal of the Judicial Appointments Commission, and further reports on the 2025 developments. This article is an AI-generated draft and requires expert review before publication.