Unconstitutional To Extend Cj S Tenure By Parliamentary Vote Say Lawyers

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Chief Justice Tengku Maimun Tuan Mat will retire in July unless the Yang Di-Pertuan Agong grants her a six-month extension of tenure.
PETALING JAYA: Three lawyers have rejected former law minister Zaid Ibrahim’s call for opposition leader Hamzah Zainudin to move a parliamentary motion seeking the extension of the current chief justice’s tenure by five years.
Constitutional lawyer Bastian Pius Vendargon said the proposal contradicts the mandatory retirement age of 66 years for Federal Court judges set out in Article 125 of the Federal Constitution.
The provision allows the Yang di-Pertuan Agong to extend a retiring judge’s tenure by up to six months.
Vendargon said Zaid’s proposal was untenable as it bypasses the roles of the king and the prime minister in the appointment of judges.
“⁠The move would therefore be unconstitutional and open to legal challenge under public law,” he told FMT.
In an X post on Tuesday, Zaid had called for Tengku Maimun’s tenure to be extended, citing a need to preserve the independence of the judiciary and ensure that judges were appointed based on merit.
Zaid also noted that nine former Malaysian Bar presidents had recently expressed concern over government interference in the appointment of judges.
Tengku Maimun will reach the mandatory retirement age of 66 in July this year.
Former Malaysian Bar president Salim Bashir said the constitution provides that a judge’s tenure can only be extended by up to six months. That power is vested in the king, he added.
“The prerogative of approving an extension of tenure of judges is best left to the wisdom of the king,” said Salim, adding that Parliament has no role in the process.
Lawyer Philip Koh acknowledged a precedent where a judge had his tenure extended after reaching the mandatory retirement age, but said the move was widely criticised by members of the legal fraternity at the time.
“Even though the constitution does not expressly prohibit extensions by contract after the compulsory retirement age, it is not a condition envisaged by the constitution’s (drafters),” he said.
Koh, an adjunct professor at Universiti Malaya, said any discussions on a proposed extension of a judge’s tenure should focus on its broader implications on the judicial institution, not the personalities involved or political preferences.
Former chief justice Raus Shariff was due to retire on Aug 3, 2017, but had his tenure as the top judge extended by three years. However, he resigned on July 31, 2018 after the constitutionality of his extended tenure was called into question.
Vendargon said discussions about the appointment of judges and the extension of their tenure should ideally be conducted by the Judicial Appointments Commission and recommended to the king.
“These matters should be taken out of the hands of the executive branch, including the procedure of the prime minister’s advice to the king,” he said. - FMT

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