Extension of CJ’s tenure: It’s happened before

Shafee-Abdullah-rausMuhammad Shafee Abdullah

Almost everyone thought Chief Justice Raus Sharif recommended himself and Zulkefli Ahmad Makinudin to be extended as “additional judges” under Article 122(1A) of the Federal Constitution (FC).

He did not. The former CJ, on the verge of retiring and in possibly one of his last official acts, recommended both judges to be appointed “additional judges”.

He may have been influenced by the fact that the two top judges after him would have had only four months and six months respectively to hold the top two posts.

With that sort of limited time frame, they would have hardly been able to warm their new seats, what more execute a plan of judicial policy.

The former CJ must have felt bad about this “flash in the pan” tenure as compared to his, which was more than six years. Moreover, he had a few months ago used the same article to bring back a recently retired Federal Court judge, Jefferey Tan, to the Federal Court, way after 66 years and six months of age, for an two additional years.

So this provision has been utilised twice before the current invocations, the first being for Federal Court judge Justice McIntyre in 1965. McIntyre was brought back as there was, and still is, a severe shortage of top judicial brains in the apex court.

Mind you, in 1965 when this article was brought in, we were hardly two years into Malaysia, and Singapore was still part of us. The wisdom of our legislators, obviously prompted by a strong view from the judiciary, then thought that with the sudden geographical expansion of our country came the expansion of administration and administration of justice.

Singapore and KL alone would overwhelm our tiny combined Federal Court which, due to a lack of competent numbers, used to sit as three-man corum, hardly satisfactory if you consider the larger corum in the House of Lords (now Supreme Court), US Supreme Court, Indian Supreme Court or Australian High Court.

Even Singapore unashamedly admitted this when they left us in 1965. They continued using our Federal Court to sit in Singapore over Singapore cases until late 1969 – what an unusual spectre! Most of the Commonwealth countries suffer this shortage of judicial brains to this day, and Malaysia is no exception.

To be a good apex judge, clinical intelligence and knowledge alone is not sufficient. One needs “emotional intelligence” as well, a rare combination of talents.

McIntyre was brought back due to his competence, Tan due to his competence and the lack of Chinese or non-Malay Federal Court candidates at that time.

I am sure the latest two have to do with their competence, experience and administrative skills. The “additional judges” concept was never meant to be merely temporary as some other Commonwealth constitutions suggest. Ours is for both purposes, for “a designated period” or “for a purpose”, the latter for ad hoc purposes as in a situation if all current Federal Court judges cannot hear a particular case and have to recuse themselves.

So ad hoc appointments can be made from outside sources to obviate such difficulties. These two, as the previous two, were appointed for a designated period, not a temporary appointment by a long shot, but long enough to amount to another respectable tenure.

So, the only question is: can additional judges continue seamlessly in their current positions? No provisions in the FC seem to prohibit it. Why not utilise the best legal brains for the top job?

By the way, for additional judges – and many do not know this – the prime minister has no role to play. It’s between the serving CJ and the Yang di-Pertuan Agong. The Yang di-Pertuan Agong, in this very rare instance as provided for in the constitution, need not consult or be advised by the prime minister. His only considerations are those that the serving CJ expressed to him in writing under Article 122(1A).

But for them to continue in their current posts beyond their retirement age, they have to be technically appointed as such by the Yang di-Pertuan Agung on the advice of the prime minister after consulting the Conference of Rulers under Article 122(B). Of course, the prime minister would have to consider the opinion of the Judicial Appointment Committee.

Muhammad Shafee Abdullah is a senior lawyer.

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