The extension of the judicial tenure of the Chief Justice and the President of the Court of Appeal in Malaysia for six months is constitutionally valid under Article 125(1) of the Federal Constitution, contrary to the opinions of certain quarters, including a learned former judge.

Former Court of Appeal judge Datuk Hamid Sultan Abu Backer recently doubted the constitutionality of extending the judicial tenure of the Chief Justice under Article 125(1). This view, nonetheless, warrants detailed scrutiny and rebuttal.

Article 125(1) provides that: “… a judge of the Federal Court shall hold office until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve.”

According to Hamid Sultan Abu Backer, the absence of an explicit mention of the Chief Justice or other heads of the judiciary in Article 125(1) limits the provision to tenure extensions for Federal Court judges, but not for judges heading the judiciary, such as the Chief Justice.

This view, with due respect, is fundamentally erroneous.

First, the Chief Justice and other heads of the judiciary, including the President of the Court of Appeal and the Chief Judge of the High Court in Malaya, are necessarily Federal Court judges. They are first appointed as Federal Court judges, then as judicial office-holders as Chief Justice, President of the Court of Appeal, Chief Judge of Malaya and Chief Judge of Sabah and Sarawak. The ‘judicial office-holders’ of the Federal Court in Article 125(1) logically include the Chief Justice and other heads of the judiciary.

Second, the six-month extension of the Chief Justice in Malaysia is not unprecedented. The tenures of former Chief Justices Tun Abdul Hamid Mohamad, Tun Arifin Zakaria and Tun Richard Malanjum were all extended. They retired at sixty-six years and six months old.

This should not be confused with the extension of the tenure of the then Chief Justice Tun Mohamed Raus Sharif and the President of the Court of Appeal Tan Sri Zulkefli Ahmad Makinudin through their appointment as ‘additional judges’ under Article 122(1A) in 2017. This appointment was controversial as it completely bypassed the constitutional age limit imposed on them under Article 125(1).

Third, it seems curious that Hamid Sultan Abu Backer singled out the Chief Justice but did not question the validity of the readily granted extension of the judicial tenures of the Chief Judge of Malaya, Tan Sri Hasnah Mohammed Hashim and the Chief Judge of Sabah and Sarawak, Tan Sri Abdul Rahman Sebli. According to his logic, the six-month extension accorded under Article 125(1) also excludes CJM and CJSS. This exposes the self-contradictory nature of his argument.

The judicial extension of the Chief Justice Tun Tengku Maimun Tuan Mat is not only constitutionally valid, but also necessary in light of the prevailing institutional context.

Firstly, Chief Justice Tengku Maimun is also the chairperson of the Judicial Appointments Commission (JAC). With the imminent retirement of nine Federal Court judges, including her, there would be an institutional vacuum following the retirement of top judges in Malaysia. It is therefore crucial to extend her tenure to ensure a smooth transition of the institutional leadership of JAC, especially in the judicial appointments of successor judges, considering the quorum requirement in appointing judges under Section 24(4) of the JAC Act 2009.

Secondly, Tengku Maimun’s judicial leadership is valuable in preserving the institutional memory of the JAC in safeguarding judicial independence. It is widely accepted that under her judicial leadership, the Malaysian judiciary has gradually restored its judicial power and independence, especially since the notorious 1988 judicial crisis. A six-month extension would be pivotal for her to consolidate this upward trajectory.

Thirdly, as rightly pointed out by the National Human Rights Society of Malaysia (Hakam), it seems to suggest a selective approach in not having granted extension to the Chief Justice, the President of the Court of Appeal Tan Sri Abang Iskandar Abang Hashim and Federal Court judge Tan Sri Nallini Pathmanathan but to the other judges. All judges should be treated equally to avoid perceptions of preferential treatment by the executive to honour the principles of judicial independence and separation of powers.

With two weeks left until the Chief Justice and the President of the Court of Appeal’s mandatory retirement and around two months until Nallini’s, there is an urgent need for the government to respond to the JAC’s recommendation of the extension of their tenures. A prompt response is needed to avoid further legal uncertainty within the judiciary.

See Zheng Hong is a PhD in Law candidate (Tunku Abdul Rahman Scholar) at the University of Cambridge.