PUTRAJAYA (July 4): Federal Court judge Datuk Zabariah Mohd Yusof will assume the task and responsibility of the Number Two in the judiciary, that is that of the President of the Court of Appeal, effective on Thursday, July 3.
Chief Judge of Malaya Tan Sri Hasnah Mohamed Hashim, who had assumed the post, task, and responsibility of the Chief Justice, made the appointment in a letter dated July 3.
Hasnah said she has appointed Zabariah to assume the responsibility and have the power as the President of the Court of Appeal effective July 3.
“The appointment is made in line with Section 9(3)(a) of the Courts of Judicature Act 1964, until the post has been physically filled,” Hasnah said in a letter sighted by The Edge.
Copies of the letter were sent to Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli, Federal Court registrar Datuk Zamri Bakar, and Court of Appeal registrar Jumirah Marjuki.
The vacancy of the post follows the retirement of Tan Sri Abang Iskandar Abang Hashim on Wednesday.
On Thursday, Hasnah had assumed the task and responsibility of the Chief Justice following the retirement of Tun Tengku Maimun Tuan Mat on Tuesday.
Zabariah is also a member of the Judicial Appointments Commission (JAC).
Hasnah and Zabariah, who have both turned 66 this year, are already in their six-month extension period and are due to compulsorily retire in November and October respectively.
Both Tengku Maimun and Abang Iskandar retired following the government not giving them six-month extensions. With their retirement, Tengku Maimun and Abang Iskandar’s positions in the nine-member JAC had also ceased.
Vacancy and appointment raise questions
Never in the history of the country have the top-two judicial posts been left vacant without a proper successor, and then to be filled by the government with judges who are of lesser rank than those who had exited the posts.
Normally, senior judges would assume posts left vacant by junior judges.
For example, when the post of the Chief Judge of Malaya fell vacant in February last year following the retirement of Tan Sri Mohd Zabidin Mohd Diah, Abang Iskandar, as the President of the Court of Appeal, was announced by Tengku Maimun to take the responsibility and task of the Chief Judge of Malaya before Hasnah was appointed.
However, Section 9(3)(c) of the Courts of Judicature Act 1964 does allow for it, as any of the positions may be filled “by a judge of the Federal Court nominated for that purpose by the Yang di-Pertuan Agong” if none of the other more senior and ranked judges are able to do so.
Lawyer Syed Iskandar Syed Jaafar commented that this strange situation (the unconventional solution) may raise issues of conflict of interest in holding those posts as well as holding the post in the JAC.
Syed Iskandar questioned why Hasnah as the Chief Judge of Malaya is given a task higher than her original, newly appointed post, and similarly with Zabariah.
“Their posts are supposed to be a bit inferior to the Chief Justice and President of the Court of Appeal. It is weird. The question remains, whether they can be regarded as validly holding the post has yet to be tested.
“It doesn't matter if their appointment comes from the prime minister with the assent given by the Yang di-Pertuan Agong. Perhaps those who advised Prime Minister Datuk Seri Anwar Ibrahim on legal matters should be examined thoroughly on whether there are elements of negligence or ulterior interest in light of the allegations of judicial interference,” he said.
Syed Iskandar said for this reason, the Malaysian Bar would be holding an extraordinary general meeting on July 26, with one sole agenda.
A circular issued by the Bar itemises the need to discuss these matters, and if deemed fit, to pass one or more resolution with regard to the vacancies in the judiciary, its office bearers’ position and the appointment process, continuity of leadership of the judiciary, and the independence of the judiciary in general.
On Thursday, Tengku Maimun at her book launch said she and her fellow judges had done all they could in her six years as the Chief Justice to restore the independence of the judiciary, and that the eyes of the public, and hers, would focus on the government and her successor to ensure this.