Race to be next chief judge of Malaya wide open, says source

 

The three senior-most judges available to be appointed to the vacant post of chief judge of Malaya are (from left) Justices Nallini Pathmanathan, Zabariah Yusof and Hasnah Hashim.

PUTRAJAYA: The inability of the appointing authority to immediately fill the vacant post of chief judge of Malaya, the third highest position in the judicial hierarchy, suggests there is no prime candidate for the position, sources said.

Justice Zabidin Diah, appointed in January last year, went on mandatory retirement on Feb 29.

A source said the Judicial Appointments Commission (JAC) had initially sent the name of one candidate to the Prime Minister’s Department for consideration.

“Later, another two names were sent as allowed under the JAC Act 2009,” the source told FMT.

On Tuesday, Chief Justice Tengku Maimun Tuan Mat said Court of Appeal president Abang Iskandar Abang Hashim would perform the duties and functions of the chief judge of Malaya on an interim basis pending a permanent appointment to the position.

However, the source said the names of relatively junior judges were submitted. As a result, the appointment of the new chief judge of Malaya was not on the agenda at the recently concluded Conference of Rulers.

Under Section 26 of the JAC Act, the nine-member commission chaired by the chief justice is required to justify the selection and provide the prime minister with such other information as may be necessary for his consideration.

Further, Section 27 states that the prime minister can request the names of two additional candidates for his consideration.

“Now it appears that the post could go to any one of the Federal Court judges,” the source said.

Under Article 122B of the Federal Constitution, all appointments of judges to the top administrative positions in the judiciary are made by the Yang di-Pertuan Agong, acting on the advice of the prime minister, and after consultation with the Conference of Rulers.

Of the 11 apex court judges, Justice Nallini Pathmanathan is the most senior, having been elevated to the top court’s bench on Nov 26, 2018.

She was bypassed by Zabidin for the position of chief justice of Malaya, who was appointed a Federal Court judge on Feb 3, 2022.

Next on the seniority list behind Nallini, are Justices Zabariah Yusof and Hasnah Hashim, who were both promoted to the Federal Court on Dec 5, 2019.

Of the three, Zabariah will reach the mandatory retirement age in October 2025, Hasnah the following month, and Nalini in February 2026 – all on the basis that their appointments will be extended by a further six months when they reach age 66.

Justice Mary Lim is the next most senior but will leave the office in early May this year.

Of the remaining Federal Court judges, Justice Harmindar Singh Dhaliwal will retire in April next year, Justice Rhodzariah Bujang (May 2028), Justice Nordin Hassan (January 2030) Justice Abdul Karim Abdul Jalil (November 2025) and Justice Abu Bakar Jais (Dec 2028).

Rhodzariah, a Sarawakian, is unlikely to be considered for the post as she is poised to take over as Chief Judge of Sabah and Sarawak after Justice Abdul Rahman Sebli retires in July next year.

Lawyer Syed Iskandar Syed Jaafar said, all things being equal, the appointment of chief justice of Malaya should be decided based on seniority.

“It is disappointing that such an important position to govern the administration of justice in the peninsula was not filled immediately after Zabidin’s retirement,” he said.

Lawyer A Srimurugan said Abang Iskandar’s temporary assumption of duties is an appropriate stopgap measure.

“Since the situation is fluid, it will be quite embarrassing for a Federal Court judge to be made acting chief judge of Malaya only not to be appointed on a permanent basis later,” he said. - FMT