KUALA LUMPUR (Oct 16): With Chief Judge of Sabah and Sarawak (CJSS) Tan Sri Abdul Rahman Sebli reaching the age of 66 in three months’ time, there is a possibility of two top judicial posts in the country being left vacant and yet to be filled by early next year.

This follows the vacuum left in the Chief Judge of Malaya (CJM) post, which has yet to be filled since February this year, after the retirement of Tan Sri Mohamad Zabidin Mohd Diah, who had attained the age of 66 last year and had been given an extension of six months.

Currently, the duty of the CJM is being undertaken by Court of Appeal president Tan Sri Abang Iskandar Abang Hashim, the No.2 in the judiciary.

Judges face constitutionally compulsory retirement at the age of 66, and their tenure can be extended only for another six months, as stipulated under Article 125 (1) of the Federal Constitution.

Abdul Rahman, who is the No.3 in the judiciary and who hails from Sibu, Sarawak, was born on Jan 25, 1959, and as such, will reach retirement age in slightly over three months unless an extension is given.

This also leads to questions of Abdul Rahman’s successor for the post when he retires. At the moment, the only Federal Court judge who is from Sabah or Sarawak is Datuk Rhodzhariah Bujang.

The top-four positions in the judiciary must come from within the Federal Court lineup.

Another predicament faced by the judiciary — as checks by The Edge with the Judicial Appointments Commission (JAC), which oversees the appointment and recommendation of senior judges from the High Court show — is that there are vacancies of five members of the JAC, out of a total nine members, resulting in a lack of quorum to hold meetings to discuss these vital vacancy issues.

To form a quorum, there must be at least five JAC members sitting in a meeting.

The JAC is supposed to hold meetings every month to discuss issues affecting the judiciary, and to consider appointments of judicial commissioners and positions that fall vacant at the High Court, Court of Appeal, and Federal Court.

But, since there are fewer than five members in the JAC at the moment, and thus no quorum can be formed, there has been no JAC meeting since last month.

JAC members are appointed following the recommendation of the prime minister. The posts of five members have been left vacant since Sept 4 this year.

The five vacancies have come from Mohamad Zabidin’s retirement in February, and the Sept 4 JAC term expiry of former chief justice Tun Md Raus Sharif, Federal Court judge Tan Sri Suriyadi Halim Omar, Sarawak Attorney General Datuk Abdul Razak Tready, and law lecturer Professor Datuk Dr Shamrahayu Ab Aziz.

The present JAC members include Chief Justice Tun Tengku Maimun Tuan Mat, Abang Iskandar, Abdul Rahman, and Federal Court judge Tan Sri Nallini Pathmanathan. 

Malaysian Bar president Mohd Ezri Abdul Wahab had raised the Bar’s concern last month, over the delay in the appointment of a new CJM, in which he noted the vacancy of the post since February, and which was being temporarily filled by Abang Iskandar.

“It is crucial to recognise that these two (Court of Appeal president and CJM) positions were designed to be distinct, each with its own responsibilities, focusing on different tiers of the court system. The fact that these positions have historically been held by different individuals also underscores the importance of maintaining the separation of these critical judicial functions.

“The Malaysian Bar has closely followed public discourse on this issue. We share the public’s concern that the continued vacancy in this key position could undermine the perception of stability and leadership within the judiciary. The role of the CJM is not merely symbolic but is essential in overseeing the judiciary, ensuring the smooth administration of justice, and safeguarding the independence of the courts,” Mohd Ezri added.

The Bar, he said, “firmly believes that the Malaysian judiciary is composed of capable, experienced, and highly qualified judges who are more than prepared to assume the role of CJM.

“Without a doubt, our judges would have spent years in the legal profession and on the bench, developing both the legal and managerial acumen necessary to lead the judiciary. Hence, there seems to be no good reason for the delay in appointing a new CJM,” he said.

While arguments are made to the CJM post being long left vacant, similar questions can be posed if the CJSS post is not filled and succession plans are not in place to ensure continuity in the administration of justice.

Prime Minister Datuk Seri Anwar Ibrahim, during his speech at last weekend’s Lawasia Conference, said that while he may be critical about lawyers and judges, one thing he had emphasised and maintained is that the Rule of Law must prevail.

“The independence of the judiciary must also remain paramount in upholding and administering justice without fear or favour,” he said at the conference.

Read also:
Malaysian Bar calls for appointment of new chief judge to be expedited after seven-month vacancy 
Abang Iskandar appointed as COA president, Zabidin made CJ of Malaya, Abdul Rahman CJ of Sabah and Sarawak 
Anwar: Judicial independence must prevail