Calls to extend judges’ judicial tenure: a shameless virtue?

 The discretion to grant extensions rests solely with the king and must be based on clear procedural compliance, not tarnished by external advocacy.

For the past few months, speculation has been rife as to whether the chief justice (CJ) and certain other Federal Court judges will receive a six-month extension to their tenures.

Several public interest groups and high-profile individuals have actively lobbied for such extensions, arguing they are necessary to maintain judicial stability.

However, these lobbying efforts contradict the incumbent CJ’s own assertion that third parties should refrain from interfering in judicial appointments—an argument that logically must cover tenure extensions as well.

The prime minister’s statement on May 22 that the government was reviewing the matter has only further intensified debate on the subject.

Constitutionally speaking, third-party advocacy for extending the tenure of Federal Court judges is nothing but a shameless virtue—-a superficially noble cause but one which, upon scrutiny, only serves to undermine both constitutional principles and judicial independence.

Constitutional basis and limits

The rule of law regarding judicial extensions originates from the Federal Constitution, specifically Article 125(1), which vests discretion in the Yang Di-Pertuan Agong.

The article reads:

“(1) Subject to the provisions of Clauses (2) to (5), a judge of the Federal Court shall hold 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.”

Crucially, Article 125(1) does not simply mandate a full and fixed six-month extension but also envisages the grant of a shorter period, suggesting that extensions should not be granted arbitrarily.

That being the case, it is clear that extensions to the tenure of judges—including the length of the term to be granted—is subject to constitutional discretion, which must be exercised judiciously, and only on valid grounds.

Given the discretion is ultimately vested in the king, it is not subject to judicial scrutiny.

The legal fraternity understands that tenure extensions must be rooted in the presence of compelling reasons, not mere procedural convention, and even less as a reward—irrespective of the capability and personality of the judge in question.

To date, third-party advocates have failed to present any substantive legal or operational justification beyond historical precedent—namely that previous judges have received extensions. While precedent has weight in legal discourse, it does not itself constitute a valid basis for exercising discretion under Article 125(1).

Wrong to advocate extensions on judges’ behalf

A fundamental concern in this debate is whether it is appropriate for external parties to advocate extensions on behalf of judges.

Judicial independence is a cornerstone of constitutional governance, ensuring that judges are free from political or social pressures in carrying out their duties. The act of third parties pushing for extensions risks eroding this independence, creating a dangerous precedent where judicial tenure becomes subject to external influence.

Judges, if they require an extension, must be the ones to initiate the request. Typically, a valid reason would be the need to finalise pending judgments or complete specific work-related tasks. To my mind, these would constitute objectively justifiable causes. However, even in such cases, a full six-month extension may not be warranted.

Established judicial procedures dictate that any judge seeking an extension must submit a formal request to the Judicial Appointments Commission (JAC). The JAC, in turn, would inform the prime minister, who would then facilitate the constitutional process with the king.

To date, the public has not been informed of any application on the part of a retiring judge for an extension of tenure, or that the JAC has made recommendations in that regard.

This lack of transparency raises concerns about whether third-party actors are genuinely advocating based on constitutional principles or exploiting an institutional gap.

That being the case, the public must be cautious when calls for judicial extensions do not originate from the judges themselves but from external groups, as their stand would be inconsistent with Article 125(1).

Walking the talk of upholding judicial integrity

Those who claim to uphold the rule of law must do more than advocate for constitutional supremacy—they must embody it in practice.

Judicial tenure, particularly the prescribed retirement age of 66 years, is a sacrosanct principle. Unless exceptional circumstances are present to justify an extension, it should not be granted.

Routine tenure extensions risk weakening constitutional safeguards and judicial independence, turning discretion into a dangerous norm.

If judges receive extensions primarily due to external lobbying, it sets a precedent where judicial tenure is no longer strictly a matter of constitutional governance but one susceptible to political manoeuvring. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.