It was deeply disheartening to discover that confidential minutes of a Judicial Appointments Commission (JAC) meeting containing adverse remarks about a senior judge were leaked into the public domain.

What was more troubling, however, was the revelation that the judge concerned had been questioned by one or more members of the JAC – an act that violates settled constitutional norms.

There is no statutory provision that vests the JAC with authority to summon sitting judges for questioning.

The appropriate constitutional procedure for examining judicial conduct lies either in the complaint mechanism under the Judges’ Code of Ethics or via the tribunalisation process laid down in Article 125 of the Federal Constitution. Anything else is ultra vires.

Investigative agencies such as the MACC may intervene – but only in cases where there is credible evidence that criminal abuse of power has taken place.

This may include allegations of judges using their positions on statutory bodies like the JAC or the ethics committee to exercise their powers in a manner contrary to law.

In such situations, judicial immunity does not apply. Judges acting in their statutory capacities must be held to the same standards of scrutiny as any public officeholder.

There may also be situations where judges apply pressure on their counterparts to rule in a particular way – a bombshell dropped by former chief judge of Sabah and Sarawak Abdul Rahman Sebli in his retirement speech earlier this week.

Bar associations, if aware of such conduct, must report the matter to the appropriate investigative body.

Amid these troubling events, I was heartened to read the piercing observations of former law minister Zaid Ibrahim who laid bare the institutional dysfunction confronting the judiciary. Allow me to reproduce it in full:

“What concerns me deeply is corruption and bribery within the judiciary.

“While corruption among civil servants is, unfortunately, well-known, the public still expects and deserves a higher standard from judges.

“Yet the pressure on judges today is immense. Powerful business interests and wealthy individuals frequently appear before the courts.

“We have heard too many whispers, and sometimes even clear assertions, about attempts to influence judges through lawyers and other improper means. Too often, these revelations go uninvestigated and unpunished.

“My friend, Syed Ahmad Idid, had the courage to raise the alarm. He documented serious allegations of corruption involving senior judges. Instead of being protected, he was hounded out of office. I regret deeply that I was never able to offer him the support and compensation he deserved, unlike the five judges dismissed in 1988, whom I had the privilege of assisting.

“Then came the Lingam tape affair, where senior judges and businessmen were caught in scandalous collusion. Despite a royal commission of inquiry recommending action, nothing came of it.

“We cannot forget Justice Hamid Sultan Abu Backer, who submitted a detailed 64-page affidavit outlining serious judicial misconduct. Again, we were promised investigations, but again, nothing happened.”

Zaid’s words should not be taken lightly. They serve as a chronicle of missed reckonings and unkept promises.

Judicial hegemony, as I have repeatedly warned, remains a primary source of opacity, lack of accountability, and institutional erosion.

It manifests not only in internal dysfunction but also in the punitive use of outdated contempt doctrines, such as scandalising the court – an archaic principle rightly abolished in England but retained here to muzzle lawyers and academics.

Let us be clear. Lawyers, academics and civil society serve as natural auditors of judicial performance. Their critique is essential to the healthy functioning of constitutional democracy. The judiciary must not be insulated from intellectual scrutiny.

Much of this hegemonic drift began after the repeal of appeals to the Privy Council. Without external appellate oversight, an insular culture has taken hold, cloaking judicial authority in unquestioned finality.

It is time our Malay rulers, as the constitutional guardians and custodians of Islam, consider structural reform.

I propose the establishment of an Oversight Committee under their purview – comprising distinguished jurists, including retired English judges – empowered to advise the Yang di-Pertuan Agong on complaints involving judicial hegemony and misconduct. Such matters should be first referred to a parliamentary select committee and then channelled appropriately.

In the interim, I call upon the incoming chief justice to initiate internal checks and address three core facets of judicial hegemony:

• The misuse of constitutional liberalism, particularly via post-2018 interpretations of the constitution using the “basic structure” doctrine – an unprecedented expansion of judicial power untethered from constitutional text;
• The invalid punishment of third parties for contempt, particularly under common law principles not codified under Article 126 and incompatible with the freedom of expression prescribed by Article 10;
• The opacity and lack of procedural fairness in the conduct of judges acting within statutory bodies, such as the JAC and the ethics committee, whose decisions must be open to administrative review and, where warranted, investigation.

We must embrace constitutional dynamism, grounded in the oath of office jurisprudence. The test is simple: can the judiciary safeguard against arbitrariness – in legislative enactment, executive conduct and public administration – while ensuring social justice?

In my view, the leak of the JAC minutes demands immediate intervention by the chief justice, and the MACC must be tasked to investigate the matter without fear or favour. If abuse of power is found, those responsible must be held to account.

Anything less would be a betrayal of the constitution and a continued erosion of the public trust in our courts.

The views expressed are those of the writer and do not necessarily reflect those of FMT.