Suddenly, Malaysians were informed that the current Chief Justice and the President of the Court of Appeal, even before their retirement, were made 'additional judges' of the Federal Court sometime in March by the previous Chief Justice? - and we were all not told about this at that time. Now, we read that the term of these 2 judges have been extended by 3 years and 2 years... We are all 'shocked' because this disclosure was made now....
THE ISSUE REALLY IS ABOUT RIGHT AND WRONG - not simply whether it is legal or illegal..
THE ISSUE REALLY IS ABOUT RIGHT AND WRONG - not simply whether it is legal or illegal..
Tan Sri Md Raus Sharif will remain as Chief Justice for a period of three years commencing August 4 this year after his appointment as an additional judge in the Federal Court from the date and for the same period....Tan Sri Zulkefli Ahmad Makinudin who was appointed as an additional judge for the Federal Court for a term of two years commencing from September 28, 2017 will continue to hold the position of the President of the Court of Appeal from the date and for the same period....On April 1, 2017, Md Raus, was appointed as the 14th Chief Justice of Malaysia, replacing Arifin who retired after reaching the age of 66 years and six months, on March 31, 2017, and Zulkefli had been appointed as Court of Appeal President to succeed Md Raus.
It must be pointed out that in Malaysia, the Prime Minister is the one that decides on who will be the Chief Justice of the Federal Court, the
President of the Court of Appeal and the Chief Judges of the High Courts and the other judges of the Federal Court, of the Court
of Appeal and of the High Courts - They may be appointed by the Yang di-Pertuan
Agong, acting on the advice of the Prime Minister....Clearly, the Yang di-Pertuan Agong must act upon the advice of the Prime Minister.
122B Appointment of judges of Federal Court, Court of Appeal and of High Courts
(1) The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122c) the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers.
What is the meaning of ' acting on the advice of the Prime Minister, etc ...'? Yang di-Pertuan Agong has no choice but to act as advised.
40 Yang di-Pertuan Agong to act on advice.(Federal Constitution)
(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di- Pertuan Agong shall accept and act in accordance with such advice.
HOWEVER, when it comes to 'additional judge' of the Federal Court, the Prime Minister seems to have no role or power "... the Yang di-Pertuan Agong acting on the advice of the Chief Justice of the Federal Court..." - it looks like here it is the Chief Justice of the Federal Court only who has the power...interesting.
(1A) Notwithstanding anything in this Constitution contained, the Yang di-Pertuan Agong acting on the advice of the Chief Justice of the Federal Court may appoint for such purposes or for such period of time as he may specify any person who has held high judicial office in Malaysia to be an additional judge of the Federal Court:...
Then, the question then would be - "Which Chief Justice...". Reasonably, it must be the present sitting Chief Justice...
WHEN - When should this advice be tendered and the appointment be made? Reasonably, it should be done just before the judge reaches his retirement age of 66, or if an extension of 6 months had been approved by the Yang Di Pertuan Agung - it should be just before the expiration of this extension of tenure...
Talking about the 6 months extension, it seems that this is that 'any other case mentioned in this Constitution'..., where the Yang Di Pertuan Agung is free to act in his discretion. There is no provision here for him to act in accordance of anyone - Prime Minister, Chief Justice or some other. But then the words, 'may approve' - so who really applied? Or maybe, this 'may approve' really means 'may decide'?
125 Tenure of office and remuneration of judges of Federal Court.
So, back to the question of 'additional judges' - where the power seems to vest only on the Chief Justice. Now, we here that the former Chief Justice alleges that he was the one that made that 'advice' on his last day of office - 30 March 2017. On 1 April, we had our new current Chief Justice.(1) Subject to the provisions of Clauses (2) to (5), 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...
So, should the Yang Di Pertuan Agung act on the advice of a former Chief Justice on his last days, when we already have a new Chief Justice.“The appointment of Tan Sri Md Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin as additional judges in the Federal Court after each of them reach the age of 66 years and six months is on the respectful suggestion and advice of the Chief Justice at the material time, Tun Arifin Zakaria to his Majesty the Yang di-Pertuan Agong on March 30, 2017 before Yang Amat Arif retired,” said the statement.
If yes, then Najib Tun Razak, our Prime Minister, before dissolving Parliament and calling for the next General Elections can simply 'advice' the Yang Di Pertuan Agung to appoint many judges, and the Yang Di Pertuan Agung will do so...? Remember that, once appointed, it is not easy to remove judges...Personally, the validity of any such 'advice' is no more after the Prime Minister or Chief Justice resigns, despite the fact that it was given before he left office...and the Yang Di Pertuan Agung is no longer bound by such advice...
Now, the current Chief Justice Tan Sri Md Raus Sharif had the power to advice the Yang Di Pertuan Agung to appoint additional judges beyond the age of retirements, and that means he too can 'extend' his own time in office. He can also extend Tan Sri Zulkefli Ahmad Makinudin's tenure and hence the term of the office he holds. Well, that is my reading of our current Constitutional provisions.
Is it right for Tan Sri Md Raus Sharif to extend his own 'tenure' and his own term as Chief Justice of the Federal Court? Well, personally, I would say that it is wrong ...
It is right for the Chief Justice to act to extend the tenure of other judges, beyond the retirement age? Again, I would say that it is wrong - save for very exceptional circumstances - like not wanting to lose a competent good judge but event that ....
It is wrong to extend the tenure of any any judge because it impacts on the 'independence of the judiciary', and one of the safeguards in place is 'security of tenure', and there must be certainty of the last day as a judge. Note, removing a sitting judges is very very difficult.
If the power to appoint additional judges(which, in fact extends tenure) to any one, be it the Chief Justice of the Federal Court (as it is) or the Prime Minister or Parliament or some other body... it will definitely have serious impact on the 'independence of the judiciary' - Would judges now be 'loyal' or listening to the 'instructions' of these persons with the power to extend their tenure or 'term in office'? They may not be, and may be still independent judges - but alas what will be the 'public perception' be?
As it is, there is already problems when it comes to appointment of judges and also their transfer/promotions/even decisions on who sits on the coram of the Court of Appeal and the Federal Court for particular cases. There is just too much power given to the Prime Minister (and in some cases the Chief Justice of the Federal Court as in the case of 'additional judges') -
In fact, I believe, that the people(rakyat Malaysia) should be involved in these decisions especially when it comes to choosing of Chief Justice of the Federal Court, President of the Court of Appeal, the Chief Judges of the 2 High Courts, and maybe even Court of Appeal and Federal Court Judges. Parliament should also have to give their approval. The proposed Independent Committee is also a good idea.
Security of Tenure is a key factor to safeguarding the Independence of the Judiciary
A judge, when appointed know that his tenure is secured until his retirement age, and he cannot be easily removed by the Prime Minister or anyone. He has no worries of being sacked, even if he makes decisions in court against the Prime Minister or the State/government or powerful people. That is why there must be a fixed retirement age - 66 years now.
As such, the provision that the term may be extended for a further 6 months, after he reaches 66 years, is problematic...Not a problem if the retirement age of the Federal Court judge was made 66 years and 6 months - but when some will be given and some not based on the approval of the Yang Di Pertuan Agung, problems arise. Remember the Prime Minister do have much influence on the decision of the king.
Now, the other problem that impacts 'security of tenure' is the appointment of 'additional judges' - so. will judges be 'friendly' or 'obedient' to the Chief Justice of the Federal Court in the hope tenure be extended?(1) Subject to the provisions of Clauses (2) to (5), 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.
Look at the recent happenings - 3 years for Raus, and 2 years for Zulkefli Ahmad Makinudin? Why the difference? Could it be 10 years? or 20 years? Was Raus a 'more complient' or 'more friendly' judge, compared to Zulkefli Ahmad Makinudin, to the Chief Justice of the Federal Court who advised the Yang Di Pertuan Agung? So, the possibility of extending tenure for any possible period also seems wrong?
'Short term contract Judges' - the Judicial Commissioners(JC) - this too is an affront to 'security of tenure', a safeguard to ensure independence of judges. If Judicial Commissioners are making decisions, not in favour of the powers that have a say in deciding whether these JCs will be confirmed as Judges. then maybe they may never be made Judges. JC - 'probationary judges'? Whilst many JCs may be good people who will uphold the cause of justice without fear or favour - there may be some who may be concerned about the impact of their judgement on their chances of becoming judges. This undermines the assurance required for an independent judge. Just appoint them as Judges - no more Judicial Commissioners.
Independence of the Malaysian judiciary suffered especially after the 1987-88 Judicial Crisis. Subsequent amendments to the Constitution and new laws has attempted to undermine the Judiciary, as a necessary third branch of the Judiciary serving as a check and balance against the Executive and/or the Legislature.
Much reforms are needed, and now this 'questionable' extension of the tenure of the Chief Justice of the Federal Court and the President of the Court of Appeal only may make matters worse.
The best option, is maybe for Tan Sri Md Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin to simply resign now, or on their reaching 66 years (or 66 years and 6 month). They should best announce this right now...
PM Najib Razak and the current government has been plagued by many issues, including matters concerning 1MDB, etc - one cannot help but wonder as to whether this issue, concerning the heads of the Malaysian judiciary, when the next General Elections is just round the corner, may be simply an attempt to distract Malaysians ...Maybe yes..maybe not?(2) A judge of the Federal Court may at any time resign his office by writing under his hand addressed to the Yang di-Pertuan Agong...
It is very sad that good men like Tan Sri Md Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin may now are made into 'targets' of public attention which may result in tarnishing their good name...
Some may say, why don't we just leave it to the courts to decide - well, in this case involving the Chief Justice of the Federal Court and the President of the Court of Appeal, one wonders whether too much pressure will be on judges...and whether justice will prevail...
See below the provisions of our Federal Constitution concerning the Judiciary.. (best if you could also look at the Constitution itself, just in case there may be some inadvertent mistakes below
____
Side matter - we know when 'advised', the Yang Di Pertuan Agung must follow that advice, what about when there provision about 'consult'...The quote from a court judgment, explains this matter succinctly
So in the matter of the appointment of judges, when the Yang di-Pertuan Agong consults the Conference of Rulers, he does not seek its "consent". He merely consults. So when the Conference of Rulers gives its advice, opinion or views, the question is, is the Yang di-Pertuan Agong bound to accept. Clearly he is not. He may consider the advice or opinion given but he is not bound by it.So in the matter of the appointment of judges, when the Yang di-Pertuan Agong consults the Conference of Rulers, he does not seek its "consent". He merely consults. So when the Conference of Rulers gives its advice, opinion or views, the question is, is the Yang di-Pertuan Agong bound to accept. Clearly he is not. He may consider the advice or opinion given but he is not bound by it.
PMO confirms Raus Sharif to stay Chief Justice for three more years
KUALA LUMPUR, July 7 ― Tan Sri Md Raus Sharif will remain as Chief Justice for a period of three years commencing August 4 this year after his appointment as an additional judge in the Federal Court from the date and for the same period.
The Prime Minister’s Office in a statement today said Tan Sri Zulkefli Ahmad Makinudin who was appointed as an additional judge for the Federal Court for a term of two years commencing from September 28, 2017 will continue to hold the position of the President of the Court of Appeal from the date and for the same period.
The statement said the appointment of the Chief Justice and the President of Court of Appeal, who are appointees as additional judges in the Federal Court, is pursuant to Article 122(1A) of the Federal Constitution.
It said pursuant to Article 122B(1) of the Federal Constitution, His Majesty the Yang di-Pertuan Agong, on the advice of the Prime Minister and after consultation with the Conference of Rulers convened on May 24 and 25 this year, is pleased to announce both appointments.
“The appointment of Tan Sri Md Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin as additional judges in the Federal Court after each of them reach the age of 66 years and six months is on the respectful suggestion and advice of the Chief Justice at the material time, Tun Arifin Zakaria to his Majesty the Yang di-Pertuan Agong on March 30, 2017 before Yang Amat Arif retired,” said the statement.
The statement said the proposal and advice were accepted by the yang di-Pertuan Agong in accordance with Article 122(1A) of the Federal Constitution.
The statement also said the above decisions and procedure were consonant with the provisions of the Federal Constitution now.
“The Malaysian Government is however contemplating tabling a proposal in the Parliament for the amendment of Article 125 of the Federal Constitution to raise the retirement age of Apex Court judges to 70 years. This is consonant with the Commonwealth and international practice and jurisprudence,” said the statement.
On April 1, 2017, Md Raus, was appointed as the 14th Chief Justice of Malaysia, replacing Arifin who retired after reaching the age of 66 years and six months, on March 31, 2017, and Zulkefli had been appointed as Court of Appeal President to succeed Md Raus.
The retirement age for judges is 66.
As a background, the services of Arifin as Chief Justice, Md Raus as Court of Appeal President and Zulkefli as Chief Judge of Malaya had earlier been extended for six months.
Md Raus' service in the judiciary has been extended from February 4 to August 3 this year, while Zulkefli’s from March 28 until Sept 27 this year. ― Bernama - Malay Mail, 7/7/2017
FEDERAL CONSTITUTION PROVISIONS ABOUT JUDICIARY
121 Judicial
power of the Federation.
(1) There shall be two High Courts of co-ordinate
jurisdiction and status, namely -
(a) one in the States of Malaya, which
shall be known as the High Court in Malaya and shall have its principal
registry at such place in the States of Malaya as the Yang di-Pertuan Agong may
determine; and[Am. Act A1260]
(b) one in the States of Sabah and
Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall
have its principal registry at such place in the States of Sabah and Sarawak as
the Yang di- Pertuan Agong may determine;
(c)(Repealed),
and such inferior courts as may be provided by
federal law and the High Courts and inferior courts shall have such
jurisdiction and powers as may be conferred by or under federal law.
(1A) The courts referred to in Clause (1) shall
have no jurisdiction in respect of any matter within the jurisdiction of the
Syariah courts.
(1B) There shall be a court which shall be known
as the Mahkamah Rayuan (Court of Appeal) and shall have its principal registry
at such place as the Yang di-Pertuan Agong may determine, and the Court of
Appeal shall have the following jurisdiction, that is to say:[Am. Act A1260]
(a) jurisdiction to determine appeals from
decisions of a High Court or a judge thereof (except decisions of a High Court
given by a registrar or other officer of the Court and appealable under federal
law to a judge of the Court); and
(b) such other jurisdiction as may be
conferred by or under federal law.
(2) There shall be a court which shall be known
as the Mahkamah Persekutuan (Federal Court) and shall have its principal
registry at such place as the Yang di-Pertuan Agong may determine, and the
Federal Court shall have the following jurisdiction, that is to say:[Am. Act 1260]
(a) jurisdiction to determine appeals from
decisions of the Court of Appeal, of the High Court or a judge thereof;
(b) such original or consultative
jurisdiction as is specified in Articles 128 and 130; and
(c) such other jurisdiction as may be
conferred by or under federal law.
(3) Subject to any limitations imposed by or
under federal law, any order, decree, judgment or process of the courts
referred to in Clause (1) or of any judge thereof shall (so far as its nature
permits) have full force and effect according to its tenor throughout the
Federation, and may be executed or enforced in any part of the Federation
accordingly; and federal law may provide for courts in one part of the
Federation or their officers to act in aid of courts in another part.
(4) In determining where the principal registry
of the High Court in Sabah and Sarawak is to be, the Yang di-Pertuan Agong
shall act on the advice of the Prime Minister, who shall consult the Chief
Ministers of the States of Sabah and Sarawak and the Chief Judge of the High
Court.
122 Constitution
of Federal Court.
(1) The Federal Court shall consist of a
president of the Court (to be styled "the Chief Justice of the Federal
Court"), of the President of the Court of Appeal, of the Chief Judges of
the High Courts and, until the Yang di-Pertuan Agong by order otherwise
provides, of * four other judges and such additional judges as may be appointed
pursuant to Clause (1A).
(1A) Notwithstanding anything in this Constitution
contained, the Yang di-Pertuan Agong acting on the advice of the Chief Justice
of the Federal Court may appoint for such purposes or for such period of time
as he may specify any person who has held high judicial office in Malaysia to
be an additional judge of the Federal Court:
Provided that no such additional judge shall be
ineligible to hold office by reason of having attained the age of sixty-six
years.[Am. Act A1239]
(2) A judge of the Court of Appeal other than the
President of the Court of Appeal may sit as a judge of the Federal Court where
the Chief Justice considers that the interests of justice so require, and the
judge shall be nominated for the purpose (as occasion requires) by the Chief
Justice.
122A Constitution
of Court of Appeal.
(1) The Court of Appeal shall consist of a
chairman (to be styled the "President of the Court of Appeal") and,
until the Yang di-Pertuan Agong by order otherwise provides, of ten other
judges.
(2) A judge of a High Court may sit as a judge of
the Court of Appeal where the President of the Court of Appeal considers that
the interests of justice so require, and the judge shall be nominated for the
purpose (as occasion requires) by the President of the Court of Appeal after
consulting the Chief Judge of that High Court.
122AA Constitution
of the High Courts.
(1) Each of the High Courts shall consist of a
Chief Judge and not less than four other judges; but the number of other judges
shall not, until the Yang di-Pertuan Agong by order otherwise provides, exceed
-
(a) in the High Court in Malaya,
forty-seven; and
(b) in the High Court in Sabah and
Sarawak, ten.
(2) Any person qualified for appointment as a
judge of a High Court may sit as a judge of that Court if designated for the
purpose (as occasion requires) in accordance with Article 122B.
122AB Appointment
of judicial commissioner.
(1) For the despatch of business of the
High Court in Malaya and the High Court in Sabah and Sarawak, the Yang
di-Pertuan Agong acting on the advice of the Prime Minister, after consulting
the Chief Justice of the Federal Court, may by order appoint to be judicial
commissioner for such period or such purpose as may be specified in the order
any person qualified for appointment as a judge of a High Court; and the person
so appointed shall have power to perform such functions of a judge of the High
Court as appear to him to require to be performed; and anything done by him
when acting in accordance with his appointment shall have the same validity and
effect as if done by a judge of that Court, and in respect thereof he shall
have the same powers and enjoy the same immunities as if he had been a judge of
that Court.
(2) The provisions of Clauses (2) and (5) of
Article 124 shall apply to a judicial commissioner as they apply to a judge of
a High Court.
122B Appointment
of judges of Federal Court, Court of Appeal and of High Courts.
(1) The Chief Justice of the Federal Court, the
President of the Court of Appeal and the Chief Judges of the High Courts and
(subject to Article 122c) the other judges of the Federal Court, of the Court
of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan
Agong, acting on the advice of the Prime Minister, after consulting the
Conference of Rulers.
(2) Before tendering his advice as to the
appointment under Clause (1) of a judge other than the Chief Justice of the
Federal Court, the Prime Minister shall consult the Chief Justice.
(3) Before tendering his advice as to the
appointment under Clause (1) of the Chief Judge of a High Court, the Prime
Minister shall consult the Chief Judge of each of the High Courts and, if the
appointment is to the High Court in Sabah and Sarawak, the Chief Minister of
each of the States of Sabah and Sarawak.
(4) Before tendering his advice as to the
appointment under Clause (1) of a judge other than the Chief Justice, President
or a Chief Judge, the Prime Minister shall consult, if the appointment is to
the Federal Court, the Chief Justice of the Federal Court, if the appointment
is to the Court of Appeal, the President of the Court of Appeal and, if the
appointment is to one of the High Courts, the Chief Judge of that Court.
(5) This Article shall apply to the designation
of a person to sit as judge of a High Court under Clause (2) of Article 122AA
as it applies to the appointment of a judge of that court other than the Chief
Judge
.
(6) Notwithstanding the dates of their respective
appointments as judges of the Federal Court, of the Court of Appeal or of the
High Courts, the Yang di-Pertuan Agong, acting on the advice of the Prime
Minister given after consulting the Chief Justice, may determine the order of
precedence of the judges among themselves.
122C Transfer
of judge of one High Court to another.
Article 122B shall not
apply to the transfer to a High Court, otherwise than as Chief Judge, of a
judge of another High Court other than the Chief Judge; and such a transfer may
be made by the Yang di-Pertuan Agong, on the recommendation of the Chief
Justice of the Federal Court, after consulting the Chief Judges of the two High
Courts.
123 Qualifications
of judges of Federal Court, Court of Appeal and of High Courts.
A person is qualified for appointment under
Article 122B as a judge of the Federal Court, as a judge of the Court of Appeal
or as a judge of any of the High Courts if -
(a) he is a citizen; and
(b) for the ten years preceding his
appointment he has been an advocate of those courts or any of them or a member
of the judicial and legal service of the Federation or of the legal service of
a State, or sometimes one and sometimes another.
124 Oath
of office of judges.
(1) The Chief Justice of the Federal Court shall
before exercising the functions of his office take and subscribe the oath of
office and allegiance set out in the Sixth Schedule, and shall do so in the
presence of the Yang di-Pertuan Agong.
(2) A judge of the Federal Court, the Court of
Appeal or a High Court, other than the Chief Justice of the Federal Court,
shall before exercising the functions of a judge take and subscribe the oath of
office and allegiance set out in the Sixth Schedule in relation to his judicial
duties in whatever office.
(2A) A person taking the oath on becoming the
President of the Court of Appeal shall do so in the presence of the senior
judge available of the Court of Appeal.[Ins. Act A1260]
(3) A person taking the oath on becoming Chief
Judge of a High Court shall do so in the presence of the senior judge available
of that High Court.
(4) A person taking the oath on becoming a judge
of the Federal Court shall do so in the presence of the Chief Justice or, in
his absence, the next senior judge available of the Federal Court.[Am. Act A1260]
(4A) A person taking the oath on becoming a judge
of the Court of Appeal shall do so in the presence of the President of the
Court of Appeal or, in his absence, the next senior judge available of the
Court of Appeal.[Ins. Act A1260]
(5) A person taking the oath on becoming a judge
of a High Court (but not Chief Judge) shall do so in the presence of the Chief
Judge of that Court or, in his absence, the next senior judge available of that
Court.[Am. Act A1260]
125 Tenure
of office and remuneration of judges of Federal Court.
(1) Subject to the provisions of Clauses (2) to
(5), 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.[Am. Act A1239]
(2) A judge of the Federal Court may at any time
resign his office by writing under his hand addressed to the Yang di-Pertuan
Agong but shall not be removed from office except in accordance with the
following provisions of this Article.
(3) If the Prime Minister, or the Chief Justice
after consulting the Prime Minister, represents to the Yang di-Pertuan Agong
that a judge of the Federal Court ought to be removed on the ground of any
breach of any provision of the code of ethics prescribed under Clause (3B) or
on the ground of inability, from infirmity of body or mind or any other cause,
properly to discharge the functions of his office, the Yang di-Pertuan Agong
shall appoint a tribunal in accordance with Clause (4) and refer the
representation to it; and may on the recommendation of the tribunal remove the
judge from office.[Am. Act A1260]
(3A) Where a judge has committed a breach of
any provisions of the code of ethics prescribed under Clause (3B) but the Chief
Justice is of the opinion that the breach does not warrant the judge being
referred to a tribunal appointed under Clause (4), the Chief Justice may refer
the judge to a body constituted under federal law to deal with such breach.[Ins. Act A1260]
(3B) The Yang di-Pertuan Agong on the
recommendation of the Chief Justice, the President of the Court of Appeal and
the Chief Judges of the High Courts may, after consulting the Prime Minister,
prescribe in writing a code of ethics which shall also include provisions on
the procedure to be followed and sanctions which can be imposed other than the
removal of a judge from office under Clause (3), in relation to a breach of any
provision of the code of ethics.[Ins. Act A1260]
(3C)
The code of ethics prescribed under Clause (3B) shall be observed by
every judge of the Federal Court and every judicial commissioner.[Ins. Act A1260]
(4)
The tribunal appointed under Clause (3) shall consist of not less than
five persons who hold or have held office as judge of the Federal Court,
the Court of Appeal or a High Court or, if it appears to the Yang
di-Pertuan Agong expedient to make such appointment, persons who hold or
have held equivalent office in any other part of the Commonwealth, and
shall be presided over by the member first in the following order,
namely, the Chief Justice of the Federal Court, the President and the
Chief Judges according to their precedence among themselves, and other
members according to the order of their appointment to an office
qualifying them for membership (the older coming before the younger of
two members with appointments of the same date).[Am. Act A1260]
(6) Parliament shall by law provide for the remuneration of the judges of the Federal Court, and the remuneration so provided shall be charged on the Consolidated Fund.
(6A) Subject to the provisions of this Article, Parliament may by law provide for the terms of office of the judges of the Federal Court other than their remuneration.
(7) The remuneration and other terms of office (including pension rights) of a judge of the Federal Court shall not be altered to his disadvantage after his appointment.
(8) Notwithstanding Clause (1), the validity of anything done by a judge of the Federal Court shall not be questioned on the ground that he had attained the age at which he was required to retire.
(9) This Article shall apply to a judge of the Court of Appeal and to a judge of a High Court as it applies to a judge of the Federal Court, except that the Yang di-Pertuan Agong before suspending under Clause (5) a judge of the Court of Appeal or a judge of a High Court other than the President of the Court of Appeal or the Chief Judge of a High Court shall consult the President of the Court of Appeal or the Chief Judge of that High Court instead of the Chief Justice of the Federal Court.
(10) The President of the Court of Appeal and the Chief Judges of the High Courts shall be responsible to the Chief Justice of the Federal Court.
125A Exercise
of powers by judges.
(1) Notwithstanding anything contained in this
Constitution, it is hereby declared that -
(a) the Chief Justice of the Federal Court
and a judge of the Federal Court may exercise all or any of the powers of a
judge of the Court of Appeal and of a judge of a High Court;
(aa) the President of the Court of Appeal
and a judge of the Court of Appeal may exercise all or any of the powers of a
judge of a High Court; and
(b) a judge of the High Court in Malaya
may exercise all or any of the powers of a judge of the High Court in Sabah and
Sarawak, and vice versa.
(2) The provisions of this Article shall be
deemed to have been an integral part of this Constitution as from Malaysia Day.
126 Power
to punish for contempt.
The Federal Court, the
Court of Appeal or a High Court shall have power to punish any contempt of
itself.
127 Restriction
on Parliamentary discussion of conduct of judge.
The conduct of a judge of
the Federal Court, the Court of Appeal or a High Court shall not be discussed
in either House of Parliament except on a substantive motion of which notice
has been given by not less than one quarter of the total number of members of
that House, and shall not be discussed in the Legislative Assembly of any State.
128 Jurisdiction
of Federal Court.
(1) The Federal Court shall, to the exclusion of
any other court, have jurisdiction to determine in accordance with any rules of
court regulating the exercise of such jurisdiction -
(a) any question whether a law made by
Parliament or by the Legislature of a State is invalid on the ground that it
makes provision with respect to a matter with respect to which Parliament or,
as the case may be, the Legislature of the State has no power to make laws; and
(b) disputes on any other question between
States or between the Federation and any State.
(2) Without prejudice to any appellate
jurisdiction of the Federal Court, where in any proceedings before another
court a question arises as to the effect of any provision of this Constitution,
the Federal Court shall have jurisdiction (subject to any rules of court
regulating the exercise of that jurisdiction) to determine the question and
remit the case to the other court to be disposed of in accordance with the determination.
(3) The jurisdiction of the Federal Court to
determine appeals from the Court of Appeal, a High Court or a judge thereof
shall be such as may be provided by federal law.
129 (Special
jurisdiction of Supreme Court as to the interpretation of Constitution -
Repealed).
130 Advisory
jurisdiction of Federal Court.
The Yang di-Pertuan Agong
may refer to the Federal Court for its opinion any question as to the effect of
any provision of this Constitution which has arisen or appears to him likely to
arise, and the Federal Court shall pronounce in open court its opinion on any
question so referred to it.
131 (Appeals from
Federal Court - Repealed).
131A Provision
for incapacity, etc. of Chief Justice, President or Chief Judge.
(1) Any provision made by federal law for the
functions of the Chief Justice of the Federal Court or the President of the
Court of Appeal or the Chief Judge of a High Court to be performed, in the
event of a vacancy in the office or of his inability to act, by another judge of
the Federal Court may extend to his functions under this Constitution.
(2) Any provision made by federal law for the
functions of the President of the Court of Appeal or the Chief Judge of a High
Court to be performed, in the event of a vacancy in the office or of his
inability to act, by another judge of the Court of Appeal or the High Court, as
the case may be, may extend to his functions under this Constitution other than
functions as judge of the Federal Court.
SALARY, ALLOWANCES AND BENEFITS OF MALAYSIAN JUDGES
FIRST SCHEDULE
[Subsection
2(1)]
(1)
Judges
|
(2)
Salary (pensionable)
|
(3)
Effective date
|
|
1.
|
Chief Justice
|
RM36,000.00
per month
|
1-7-2015
|
2.
|
President of the Court of Appeal
|
RM31,500.00
per month
|
1-7-2015
|
3.
|
Chief Judge of the High Court in
Malaya
|
RM30,500.00
per month
|
1-7-2015
|
4.
|
Chief Judge of the High Court in
Sabah and Sarawak
|
RM30,000.00
per month
|
1-7-2015
|
5.
|
Judges of the Federal Court
|
RM28,500.00
per month
|
1-7-2015
|
6.
|
Judges of the Court of Appeal
|
RM27,500.00
per month
|
1-7-2015
|
7.
|
Judges of the High Courts in
Malaya and Sabah and Sarawak
|
RM26,500.00
per month
|
1-7-2015
|
ALLOWANCES AND OTHER BENEFITS- all in Schedule 2 - There is a lot, but let us look at some samples
SPECIAL JUDICIAL ALLOWANCE:
1. Chief Justice - RM15,000.00 per month
2. President of the Court of Appeal -
RM12,000.00 per month
3. Chief Judges of the High Court in
Malaya - RM10,000.00 per month
4. Chief Judges of the High Court in
Sabah and Sarawak - RM10,000.00 per
month
5. Judges of the Federal Court - RM8,000.00
per month
6. Judges of the Court of Appeal - RM7,000.00
per month
7. Judges of the High Courts in
Malaya and Sabah and Sarawak RM6,000.00 per month
There are many different allowances
for judges. Below we just look at the Chief Justices, but all other judges also
do receive in slightly lesser amounts
SECOND SCHEDULE [Subsection 2(2)]
ACCOMMODATION:
1. Chief Justice- (i) free fully furnished
institutional quarters which (including the compound) shall be maintained free
of charge, or in lieu thereof a house rent subsidy of RM 5,000.00 per month;
(ii) a provision of RM 3,000.00 per
month for domestic help; and
(iii) a provision of RM 4,100.00 per
annum for house and garden upkeep. …
ENTERTAINMENT ALLOWANCE:
Chief Justice - RM6,000.00 per month
Other allowances and benefits include Regional Allowance, Disturbance Allowance, Moving Allowance, Annual Leave, Medical Benefits, Car, Clothing Allowance, Lodging Expenses, Subsistence Allowance, Utility Bills(paid for), Internet/Communication Reimbursements, sports and recreational club membership, overseas travel...(look these up yourself...as there are a lot)
Notes from past posts
Notes from past posts
a) Judges pay & pensions
There really is a need to increase the monthly wages of judges - and to re-look at the pension scheme. The current pension scheme for judges is really bad - for not only does a Judge lose all his 'allowances' and benefits, but he also not even assured of 50% of his last drawn salary. WHY? Because judge's pensions are determined and calculated by a odd formula that looks at the number of months that the judge has sat on the Bench. Hence, the worry about the future ...how will I survive after my retirement?...
b) Get rid of that 'contract Judge system' or probation judge system - the Judicial Commissioners. Just appoint them straight as judges...so they enjoy all that as been put in place to ensure independence. Remember security of tenure is one such safeguard....PR Nizar -v- BN Zambry : Many expected that decision...and that is BAD
...Judges should NEVER join law firms and/or Private Companies immediately after retirement. They should also not be accepting offers from the Government to become Chairpersons and/or sit in some Commissions and/or Government bodies/agencies. Is the government "rewarding" 'good' judges who "listened" and/or who "behaved"? We must not forget that the Government is also many a time made a party in suits before the court - and JUDGES who sit and hear these cases must never (and also never be seen to be) Pro-Government and/or Anti-Government but must mete out Justice as an INDEPENDENT JUDGE.
Judges must be independent - be seen to be independent when they are sitting on the bench and therefore what they do after retirement also matters.... - Post-retirement conduct of judges will affect public perception on the independence of judiciary
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