The Malaysian Bar refers to news reports that considerations are underway to extend the tenure of the Chief Justice of the Federal Court of Malaysia (“Chief Justice”), beyond the age of 66 years and 6 months. It is our considered view that such an extension, if it were to be carried out, would be unconstitutional.

Part IX of the Federal Constitution dealing with the Judiciary — ie Articles 121 to 131A — gives rise to the irresistible conclusion that, to be a member of the Federal Court (which includes the Chief Justice), it is a condition precedent that a judge must be no more than 66 years and 6 months in age.

Further, the Chief Justice cannot be appointed by way of an appointment as an “additional judge of the Federal Court” under Article 122(1A) of the Federal Constitution by the Yang di-Pertuan Agong acting on the advice of the Chief Justice. Any such appointment would be unconstitutional, and unprecedented.

Firstly, the word “additional” denotes a judge who is not currently a member of the Federal Court. A judge (including the Chief Justice) who is currently a judge of the Federal Court cannot be appointed as an “additional” judge.

Secondly, Article 122(1) of the Federal Constitution stipulates that “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 eleven other judges and such additional judges as may be appointed pursuant to Clause (1A)” [emphasis added]. This wording unequivocally indicates that the Chief Justice and any additional judge must be two distinct persons; they cannot be one and the same person.

The fact that from 1965 to 2017 — for over half a century — no head of the Judiciary was ever appointed on the basis of Article 122(1A) of the Federal Constitution, is consistent with this interpretation.

The status and stature of the office of the Chief Justice, being the highest office in the Judiciary, is made apparent by Article 125(10) of the Federal Constitution, which states that the President of the Court of Appeal and the two Chief Judges of the High Courts — ie the other three office bearers of the Judiciary — “shall be responsible to the Chief Justice of the Federal Court”. Accordingly, the weight and importance of the office of the Chief Justice, who serves as the head of the judicial branch of government, cannot be overemphasised. The legality of the appointment of a Chief Justice must always be beyond question or reproach.

If the Chief Justice’s tenure is extended in a questionable manner, it would give rise to the perception that there is no other suitable candidate among the current members of the Federal Court, for the office of the Chief Justice, which the Bar does not believe to be the case. Furthermore, such a perception would result in a general lack of public confidence in the Judiciary, and must be avoided.

The contributions that the current Chief Justice has made to the Judiciary are well known. It would not be fair to His Lordship, should the pinnacle of his illustrious career become embroiled in any form of controversy.

George Varughese
Malaysian Bar