Press Release | There is an Urgent Need to Appoint a New Chief Judge of Malaya 19 Sep 2024 1:40 pm
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As
one of the key stakeholders in the administration of justice, the
Malaysian Bar is deeply concerned about the ongoing delay in the
appointment of the Chief Judge of Malaya (“CJM”), a post that has
remained vacant since the end of February this year.
We acknowledge and appreciate the commendable efforts of YAA Tan Sri Datuk Amar Abang Iskandar Abang Hashim, who has assumed the role of acting CJM,1 in addition to his role as President of the Court of Appeal. However, it is crucial to recognise that these two 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.
Moreover, we firmly believe 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.
The CJM holds many important functions pertaining to the administration of the High Court in Malaya. One of the main responsibilities of the CJM is the delegation of cases between the High Court Judges.2 Case law3 has determined that this power is a discretion of the CJM, and is thus not amenable to judicial review.
The CJM also has a role in the appointment of High Court Judges serving in Peninsular Malaysia. Before tendering advice to the Yang di-Pertuan Agong (“YDPA”) on the appointment of a High Court Judge, the Prime Minister is obliged to consult both the Chief Justice and the CJM.4 Even with the transfer of a Judge from one High Court to another, a recommendation may be made by the Chief Justice to the YDPA, after consulting both the CJM and the Chief Judge of Sabah and Sarawak.5
When it comes to regulating and prescribing the procedure in the Courts, the CJM also plays a central role. The CJM sits as one of the members of the Rules Committee, which is responsible for issuing the Rules of Court. The Rules of Court determine matters of procedure and are invaluable for the smooth and effective flow of litigation. Additionally, the CJM has the authority to issue practice directions on the interpretation and execution of the Rules of Court.6
The foregoing is merely a glance at the many responsibilities of the CJM. Although a senior judge may assume the role of acting CJM in the event of a vacancy, this should only be a stop-gap measure when the Office becomes immediately vacant. It should not be a permanent state of affairs. There is an urgent need to fill this vacancy, not only because of the importance of the CJM’s Office, but because allowing this vacancy to persist prevents the progression of judges within the system who have spent their entire careers honing their judicial skills and abilities. It would be a great disservice to the Judiciary to withhold the progression of these judges, as they will not be able to make use of their wisdom and skills for the betterment of the Malaysian justice system. This is especially pertinent, considering judges undergo compulsory retirement at the age of 66 years.7
Aside from delaying the progression of judges up the ranks, this stagnancy could also prevent the appointment of new Judicial Commissioners from either the Bar or the Judicial and Legal Services. There are many members of the legal profession who have dedicated their time and energy to becoming leading practitioners, often in niche areas of law, and are willing to further contribute to the development of the law by joining the Bench. Delays in appointing new Judicial Commissioners would result in frustration, and even deter some from applying to join the Judiciary. Such a situation would be to the detriment of our justice system.
In recognising the importance of the role
of the CJM in upholding the rule of law and ensuring continued public
confidence in our legal system, the Malaysian Bar urges the expedition
of the appointment of a new CJM. Any further delay risks undermining
the progress our Judiciary has made and could impede the effective
administration of justice.
Mohamad Ezri b Abdul Wahab
President
Malaysian Bar
19 September 2024
1 “Abang Iskandar appointed acting Chief Judge of Malaya”, New Straits Times, 6 March 2024.
2 Courts of Judicature Act 1964, section 20.
3 See, for instance, Mkini Dotcom Sdn Bhd & Ors v Chief Judge of Malaya & Ors [2016] 8 MLJ 357.
4 Federal Constitution, Article 122B.
5 Federal Constitution, Article 122C.
6 Rules of Court 2012, Order 92, Rule 3B.
7 Federal Constitution, Article 125, Clause 1.
Source: Malaysian Bar Website
See also:-
Chief Judge of Malaya - none since February 29? Why is Anwar delaying? Appoint NOW...
Art. 122B Federal Constitution 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.
According to a media report dated 1/8/2024, the Chief Justice (CJ) Tengku Maimun Tuan Mat had already tendered the name/s of persons to be appointed as the Chief Judge of Malaya (“CJM”),
"We see in the past few years, there have been changes and appointments in the judiciary, but I haven’t interfered with a single appointment. I follow the Judicial Appointments Commission’s process and then the Chief Justice will forward (a name) and I will accept it,” he[Prime Minister Datuk Seri Anwar Ibrahim] said during the ‘Special Narrative with the Prime Minister’ interview on Radio Televisyen Malaysia (RTM) tonight. -- BERNAMA, Sinar Daily, 7/1/2023
See also the Judicial Appointments Commission Act 2009
PART IV SELECTION TO THE OFFICE OF THE CHIEF JUSTICE OF THE FEDERAL COURT, THE PRESIDENT OF THE COURT OF APPEAL, THE CHIEF JUDGES OF THE HIGH COURTS, JUDGES O...
...26 Report on recommendation
(1) After making its selection, the Commission shall submit to the Prime Minister a report which shall-
(a) state who has been selected by the Commission to be recommended for the appointment to the office concerned;
(b) state the reasons for such selection; and
(c) contain any other information the Commission deems necessary to bring to the knowledge of the Prime Minister.
(2) After submitting the report, the Commission shall provide any further information as may be required by the Prime Minister.
27 Request for further selection by the Prime Minister
The Prime Minister may, after receiving the report under section 26, request for two more names to be selected and recommended for his consideration with respect to any vacancy to the office of the Chief Justice of the Federal Court, the President of the Court of Appeal, the Chief Judge of the High Court in Malaya, the Chief Judge of the High Court in Sabah and Sarawak, judges of the Federal Court and the Court of Appeal, and the Commission shall, as soon as may be practicable, comply with the request in accordance with the selection process as prescribed in the regulations made under this Act.
28 Tender of advice
Where the Prime Minister has accepted any of the persons recommended by the Commission, he may proceed to tender his advice in accordance with Article 122B of the Federal Constitution.
What is happening to the amendment of the Judicial Appointment Commission Act, as proposed by the Conference of Rulers?
Just a week after Anwar was sworn in as prime minister, the Conference of Rulers had called for curtailing the prime minister's powers in the appointment of judges.
The Rulers made this clear when they proposed that the prime minister be stripped of the power to appoint five representatives to the Judicial Appointments Commission (JAC), a nine-member body that nominates candidates for appointment to the superior courts.
Four of the nine members of JAC are senior judges, while the remaining five are appointed by the prime minister.
"To ensure the independence of JAC in carrying out its responsibilities, I propose that the appointment of its five members should not be made by the prime minister.
"Instead it should be given to other institutions such as the Malaysian Bar Council, the Sabah Law Society, the Sarawak Bar Association and the Parliamentary Select Committee," Negeri Sembilan ruler Tuanku Muhriz Tuanku Munawir had said at the time.
Now, another problem that arises is the fact that Chief Judge of Malaya is mandatory member of the Judicial Appointment Commission - without the Chief Judge in Malaya, that JAC will have 8 members only, with 5 being appointed by the Prime Minister personally.
5 Constitution of the Commission[ JUDICIAL APPOINTMENTS COMMISSION ACT 2009]
(1) The Commission shall consist of the following members:
(a) the Chief Justice of the Federal Court who shall be the Chairman;
(b) the President of the Court of Appeal;
(c) the Chief Judge of the High Court in Malaya;
(d) the Chief Judge of the High Court in Sabah and Sarawak;
(e) a Federal Court judge to be appointed by the Prime Minister; and
(f) four eminent persons, who are not members of the executive or other public service, appointed by the Prime Minister after consulting the Bar Council of Malaysia, the Sabah Law Association, the Advocates Association of Sarawak, the Attorney General of the Federation, the Attorney General of a State legal service or any other relevant bodies.
WHY THE DELAY? Please EXPLAIN
Source: Terrirudin not on list given by CJ to PM for new Chief Judge of Malaya
Speculation that the attorney-general is poised for promotion to the Federal Court evokes fears of executive meddling in the judiciary.
A storm is brewing in legal and judicial circles over Anwar Ibrahim's plan to appoint Attorney-General Ahmad Terrirudin Salleh as a judge of the Federal Court and Chief Judge of Malaya, raising similar concerns that the Conference of Rulers expressed not long ago about the prime minister's powers to appoint senior judges.
MalaysiaNow can now reveal, based on reliable sources, that Terrirudin's name is not among those recommended by Chief Justice (CJ) Tengku Maimun Tuan Mat to Anwar to fill the position of Chief Judge of Malaya.
The position has been vacant since Zabidin Diah retired on Feb 29
Tengku Maimun is understood to have recommended a list of names to Anwar, in accordance with Article 122B of the Federal Constitution, which states that the appointment of judges to top judicial positions other than that of chief justice shall be made in consultation with the CJ.
Article 122B also states that it is only after this process that the prime minister may advise the Yang di-Pertuan Agong, who in turn consults with the Conference of Rulers.
An official at the Prime Minister's Department declined to comment on the matter, saying only that the government was not obliged to accept the CJ's candidates.
This is a far cry from Anwar's own promise to stay out of the appointment of judges, just months after becoming PM.
"We see in the past few years, there have been changes and appointments in the judiciary, but I haven’t interfered with a single appointment. I follow the Judicial Appointments Commission’s process and then the CJ will forward (a name) and I will accept it," he was quoted as saying in an interview with RTM in January 2023.
The argument that the prime minister is not bound by the advice of the CJ does not go down well with senior judges, many of whom are still struggling to move on after a long history of government interference in the judiciary in recent decades.
"We had to learn the bitter lesson that whilst the independence of the judiciary can be destroyed in an instant, rebuilding and reestablishing its independence can take decades," warned a joint letter signed by past presidents of the Malaysian Bar recently.
"That is the crux of the current concern. There is a fear of renewed executive interference in the judiciary," said a judicial source privy to the matter, who spoke to MalaysiaNow on strict condition of anonymity.
"It is glaring that not a single name put forward by her was accepted. This defeats the constitutional requirement for consultations," the source added.
The plan to appoint Teriruddin as a Federal Court judge and then CJM has been criticised by the legal fraternity, including the former deputy minister in charge of law and institutional reforms, Ramkarpal Singh.
"Appointing an outsider to one of the country’s most senior judicial posts would certainly be a step backward and would reflect poorly on the government’s commitment to judicial reforms," said Ramkarpal, who was not reappointed to his post following the Cabinet reshuffle late last year.
Concerns of Malay rulers echoed
Just a week after Anwar was sworn in as prime minister, the Conference of Rulers had called for curtailing the prime minister's powers in the appointment of judges.
The Rulers made this clear when they proposed that the prime minister be stripped of the power to appoint five representatives to the Judicial Appointments Commission (JAC), a nine-member body that nominates candidates for appointment to the superior courts.
Four of the nine members of JAC are senior judges, while the remaining five are appointed by the prime minister.
"To ensure the independence of JAC in carrying out its responsibilities, I propose that the appointment of its five members should not be made by the prime minister.
"Instead it should be given to other institutions such as the Malaysian Bar Council, the Sabah Law Society, the Sarawak Bar Association and the Parliamentary Select Committee," Negeri Sembilan ruler Tuanku Muhriz Tuanku Munawir had said at the time.
A few months later, Anwar vowed to protect the independence of the judiciary.
"As prime minister, not only have I not encroached upon even a single inch of the sacred terrain of the judiciary, but I shall defend, at all costs,the independence of the judiciary," he said at the Asean Law Conference last year.
Restoring public confidence in the judiciary has been almost a permanent feature of Pakatan Harapan (PH) election manifestos throughout the decades.
In 2018, it pledged to ensure the appointment of judges based on merit and experience and to remove the prime minister's power to influence the appointment of judges.
"The appointment of the chief justice and the president of the Court of Appeal through the backdoor as practised by Umno and Barisan Nasional will be stopped immediately," said the PH manifesto ahead of the 14th general election.
A similar promise was made during the last general election.
"Harapan will continue to protect the integrity of Malaysia’s
administration by limiting the power of the executive, ensuring the
freedom of our judiciary, and reorganising the political structures of
the country," the coalition said. - Malaysia Now, 1/8/2024
Anwar gives clear signal that judiciary is free to carry out duties based on facts
This was important to provide a clear signal to Malaysians that there is seperation of powers between the legislative, executive and judiciary in conducting their duties in accordance to their respective capacities.
He noted that there were assumptions that the judiciary, which had long been held as an institution of irrefutable and unquestionable high standing, had been compromised by executive dominance.
According to Anwar, even the Bar Council of Malaysia and the International Commission of Jurists (ICJ) were of the view that defects and weaknessses existed within the present judiciary.
"We see in the past few years, there have been changes and appointments in the judiciary, but I haven’t interfered with a single appointment. I follow the Judicial Appointments Commission’s process and then the Chief Justice will forward (a name) and I will accept it,” he said during the ‘Special Narrative with the Prime Minister’ interview on Radio Televisyen Malaysia (RTM) tonight. -- BERNAMA, Sinar Daily
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