CJ’s tenure extension: a constitutional blunder?

 There is no provision in the Federal Constitution that explicitly allows the chief justice’s tenure to be extended.

Recently, the tenure of the Chief Justice (CJ) has become a focal point of legal and political discourse, particularly as regards the constitutional validity of extending judicial terms.

The debate hinges on the interpretation of Articles 125(1) and 122B(1) of the Federal Constitution, which govern judicial tenure and appointments.

While Federal Court judges may receive an extension of up to six months under Article 125(1), the same provision does not explicitly allow for the extension of a CJ’s tenure.

That means even if the tenure of a sitting CJ is extended, it can only be as an apex court judge and not as holder of the top post itself.

This raises a fundamental question: Is the call for the current CJ’s tenure to be extended a constitutional blunder?

The constitutional framework

Article 125(1) of the Federal Constitution states:

“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.”

This provision clearly allows for an extension of tenure for Federal Court judges, but it does not explicitly mention the CJ or other heads of the judiciary.

The appointment of the CJ, along with other senior judicial figures, falls under Article 122B(1), which reads:

“The chief justice of the Federal Court, the president of the Court of Appeal, the chief judge of the High Court in Malaya, and the chief judge of the High Court in Sabah and Sarawak shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the prime minister, after consulting the conference of rulers.”

This provision governs the appointment process but does not provide a mechanism for extending the tenure of the CJ beyond the prescribed retirement age.

The absence of explicit language allowing an extension for the CJ suggests that any attempt to prolong the tenure beyond the constitutional limit may be legally questionable.

Offer and extension letters

Recent reports indicate that no offer letter has been received by judges regarding tenure extensions. This is unsurprising, as the Federal Constitution does not provide for the issuance of offer letters in such cases.

Instead, the correct procedure should involve an extension letter, which is distinct from an offer letter. The legal fraternity must recognise this distinction to ensure compliance with constitutional provisions.

If the government has been erroneously issuing offer letters instead of extension letters, this practice must be rectified.

The issuance of offer letters implies a discretionary appointment process, whereas extension letters are strictly governed by constitutional provisions. The government must clarify whether past extensions were granted correctly or if they inadvertently breached constitutional limits.

Judicial independence

Recently, the National Human Rights Society of Malaysia raised concerns about selective practices in granting judicial extensions. While some Federal Court judges have received six-month extensions, others—including Chief Justice Tengku Maimun Tuan Mat—have not. They claim this inconsistency undermines public confidence in the judiciary and raises questions about transparency in judicial appointments.

Judicial independence is a cornerstone of constitutional governance. Any attempt to extend the CJ’s tenure beyond the prescribed limits must be scrutinised to ensure that it does not compromise the integrity of the judiciary. Calls for tenure extensions must be based on constitutional merit, not political expediency.

Constitutional pundits, judicial review

Given the ambiguity surrounding judicial extensions, constitutional scholars and legal experts must deliberate on the issue. If the government has been misinterpreting Articles 125(1) and 122B(1), corrective measures must be taken to align judicial practices with constitutional mandates.

A public-spirited litigant may seek judicial review to challenge any unconstitutional extensions. The courts must uphold the sacrosanct provisions of the Federal Constitution and ensure that judicial tenure remains within the prescribed limits. Constitutional blunders must be avoided at all costs, as they threaten the foundational principles of the rule of law.

The extension of judicial tenure, particularly for the CJ, must be approached with constitutional precision. Article 125(1) provides a mechanism for extending the tenure of Federal Court judges, but it does not explicitly allow for the extension of the CJ’s appointment. The issuance of offer letters instead of extension letters further complicates the matter, raising concerns about procedural correctness.

The government must clarify its stance on judicial extensions and ensure that past practices align with constitutional provisions. Legal experts and constitutional pundits must engage in rigorous discourse to prevent any constitutional blunders. If necessary, judicial review should be pursued to uphold the integrity of Malaysia’s legal framework.

The rule of law must remain sacrosanct, and those involved in the legal industry must safeguard the constitutional provisions that govern judicial tenure. Transparency, consistency, and adherence to constitutional principles are essential to maintaining public confidence in the judiciary. - FMT

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