PETALING JAYA: Nine Federal Court judges, including three women, should be considered for the top judicial administrative posts when the current chief justice and Court of Appeal (COA) president retire, lawyers and a retired judge said.
They said it was inevitable that the Judicial Appointments Commission (JAC) would face a delicate situation as seven would retire gradually by May 2019 while another would retire in 2022.
They also said seven Federal Court judges, who are not holding any post, should also be considered for the appointment to the top posts. Of the nine, only Ahmad Maarop and Richard Malanjum are holding posts – the former is chief judge of Malaya (CJM) while the latter is chief judge of Sabah and Sarawak
They said this in response to the peculiar situation where apex court judges will gradually leave office soon, after the retirement of Chief Justice Raus Sharif on Aug 3 and COA president Zulkefli Ahmad Makinudin on Sept 27.
FMT understands that the JAC is now working on the selection process for submission to Prime Minister Najib Razak.
Under the Federal Constitution, the Yang di-Pertuan Agong makes the appointment on the advice of the prime minister after consultations with the Conference of Rulers.
Previoulsy, former chief justice Arifin Zakaria, Raus (COA president) and Zulkefli (chief judge of Malaya) held their positions for five and half years until March 31 this year.
Justice Hasan Lah will retire in March next year, Zainun Ali in April 2018, Ramly Ali in February 2019, Azahar Mohamed in April 2022, Zaharah Ibrahim in November 2018, Baliah Yusuf Wahi in September 2018 and Aziah Ali in May 2018.
The current Chief Judge of Malaya Ahmad Maarop will retire in May 2019 while the Chief Judge of Sabah and Sarawak Richard Malanjum will leave office in October next year.
Judges retire at age 66 and the king could give an extension of up to six months for them to remain in office.
Retired Federal Court judge Gopal Sri Ram said Hasan or Zainun could be considered for the top two positions after the retirement of Raus and Zulkefli.
He said in 1982, Salleh Abas, though junior to Hamid Omar and Wan Suleiman Pawanteh, was appointed chief judge of Malaya and later Lord President succeeding Raja Azlan Shah in 1984.
Again, he said, while Lamin Yunus was COA president, Mohamed Dzaiddin Abdullah who was Lamin’s junior and an ordinary Federal Court judge was appointed chief justice in 2000.
“So there is precedent. There is therefore no bar to either Hasan Lah or Zainun becoming chief justice as both are very capable and have a deep interest in the law,” he said.
Sri Ram said in the case of India, which is the closest constitutional kin to Malaysia, the senior most justice of the Supreme Court would be appointed chief justice even if he would hold office for a very short period.
“There have been cases where a chief justice held the post for only a few days. So the fact that a judge has only a short term to serve is not a good reason not to appoint him or her as chief justice,” he added.
“In that sense the appointments of Raus and Zulkefli, effective April, are correct, he said.
Echoing Sri Ram’s view, Malaysian Bar president George Varughese said there was no shortage of capable and worthy candidates among the current Federal Court judges.
“Malanjum and Ahmad could also succeed Raus and Zulkefli upon their impending retirements,” he added.
Ahmad was appointed CJM last month while Malanjum has been Chief Judge of Sabah and Sarawak since 2006.
Law expert Abdul Aziz Bari said as the nation celebrated its 60th year of independence, the JAC should propose names who would inspire confidence in the judiciary.
“Seniority and ability of judges should be considered and not personality,” he added.
Lawyer Mohamed Haniff Khatri Abdulla said any Federal Court judge must already have all the qualities to be eligible to be appointed as the chief justice.
“So qualification per se is a non issue. Then the proper criteria will be seniority and the balance of the period of service,” he added.
Haniff said the appointing authority should perhaps also consider a woman as top judge in order to create legal history.