LAGI BERKENAAN LANJUTAN KONTRAK KETUA HAKIM NEGARA

 is for bro RW ...

AMENDED VERSION WITH CORRECTIONS

I saw the announcement this morning at 5 am and had a quick look at the law. Almost everyone thought Raus recommended himself and Zulkifli 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 possibly one of his last official act 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 only 4 months and 6 months respectively to hold the two top posts. With that sort of limited time frame they would hardly warm up their new seats whatmore to 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 6 years. Moreover he had a few months ago used the same Article to bring back a recently retired Federal Court judge, Tan Sri Jefferey Tan to the Federal Court way after 66 1/2 years of age for 2 additional years. So this provision has been utilised twice before the current invocations, the first being for Federal Court Judge Justice Mc Intyre in 1965.

McIntyre was brought back as there was and is 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 Legislator , obviously prompted by a strong view from the Judiciary , then thought that with the sudden geographical expansion of our country came with it the expansion of administration and administration of justice. Singapore and KL alone would overwhelm our tiny combined Federal Court which due to lack of competent numbers used to sit as 3 men 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 spectare! Most of the Commonwealth countries suffer this judicial brains shortage to this day, Malaysia is no exception.

To be a good Apex judge clinical intelligence and knowledge alone is not sufficient . One would need "emotional intelligence" as well, a rare combination of talents. McIntyre was brought back due to his competence, Jefferey due to his competence and to the lack of Chinese or non Malay Federal Court candidate at that time.I am sure, the latest two have to do with their competence and  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 difficulty.These two as the previous other 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? It is good to have additional judge concept to support "dead wood " policy. If we insist judges retire at 66 , it's a natural way of getting rid of dead woods and yet by additional judges appointment you retain or bring back real performers!

By the way, for additional judges, and many do not know this, the PM has no role to play, it's between the then serving CJ and the Seri Paduka Yang Di Pertuan Agung. Seri Paduka Yang Di Pertuan Agung , in this very rare instance as provided in the Constitution need not consult or be advised by the PM . 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 Seri Paduka Yang DiPertuan Agung on the advice of the PM after consulting The Conference of Rulers under Article 122(B). Of course the PM would have to consider the opinion of JAC , the Judicial Appointment Committee.

On a side note, I would expect no less than a vigorous and robust  debate , minus the whips, in Parliament, when the Government suggests an amendment to raising Apex Court judges retirement age to 70 consonant with Commonwealth and International jurisprudence and practice as there are pros and cons considering "dead wood" principle and the fact that medical advancement has lengthened human lives meaningfully and, forgive the expression, judges ( and lawyers) are like wines, they get better with age, but they should not be
overstaying when they get to be vinegarish or "nyanyuk".

Sorry , a bit too long, but you deserve to know fully!

Muhammad Shafee Abdullah 8/7/2017