Don’t leave Chief Judge position vacant

FEDERAL Court judge Datuk Mohamad Zabidin Mohd Diah has been appointed as the acting Chief Judge of Malaya (CJM), according to the Office of the Chief Registrar of the Federal Court (The Star ,Nov9; online at bit.ly/star_judge). The post was left vacant following the retirement of Tan Sri Azahar Mohamed on Oct 27.

This is not the first time that the office has been left vacant following a retirement. Azahar himself was appointed as the acting CJM following Tan Sri Zaharah Ibrahim’s retirement on May 16, 2019. He was only appointed to the office some three months later, in August.

The office of the CJM is established by Article 122AA(1) of the Federal Constitution. The CJM “shall be appointed by the Yang di-pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers”.

Before tendering his advice, the prime minister must consult the Chief Justice of the Federal Court, more commonly referred to as the Chief Justice of Malaysia (Article 122B(2)).

Interestingly, before tendering his advice, “the Prime Minister shall consult the [CJM]” (Article 122B(3)). This suggests that there must be consultation with the presiding CJM before he/she vacates the position.

Also interestingly, the Constitution is silent on the appointment of an acting CJM, or an acting Chief Judge of Sabah and Sarawak for that matter.

However, another section of the Federal Constitution allows for the duties of the officer-holder to be performed by a person appointed to act for him/her.

Accordingly, Section 9(1B) of the Courts of Judicature Act 1964 provides that whenever “during any period, owing to illness or absence from Malaysia or any other cause, the [CJM] is unable to exercise the powers or perform the duties of his office, the powers shall be had and may be exercised and the duties shall be performed by a Judge of the Federal Court designated for that purpose by the Chief Justice after consulting the Chief Judge of that High Court”.

The Constitutional scheme of things clearly provides for consultation with the presiding CJM before he/she is out of office.

A judge of the superior courts (Federal Court, Court of Appeal and High Court) holds office “until he attains the age of 66 years or such later time, not being later than six months after he attains that age, as the Yang di-pertuan Agong may approve”, says Article 125(1) read with clause (9).

Accordingly, the search for a new CJM must begin before the office-holder retires mandatorily. It should begin as soon as the incumbent’s tenure of office is extended for another six months after he turns 66 years old, if not earlier.

It must start with the PM. It is vital that the office of the CJM is not left vacant after the incumbent retires mandatorily.

HAFIZ HASSAN

Bukit Baru, Melaka