THE Malaysian judiciary is very much in the news. On the positive side, the legal community applauds the recent, courageous decisions of the executive to appoint judges of integrity and independence to the post of Chief Justice, president of the Court of Appeal and the Chief Judges of the High Courts.
The voluntary resignation of two additional judges has resolved the constitutional dilemmas created by these controversial appointments.
On the negative side, several flaws in the laws have been highlighted. Many other dangers lurk in the shadows. For example, serious reports have emerged of past incidents of interference by senior judges in the process of decision-making by their juniors. This requires thorough internal and external investigations.
There is evidence that past Chief Justices (CJs) have occasionally chosen panels to hear cases without due regard for the appearance of impartiality.
In one case, a High Court judge was unconstitutionally asked to sit on the Federal Court.
Cases involving inter-religious disputes or minority rights or the special position of Sabah and Sarawak are often heard with no judge representing these communities.
This leads to the perception that these panels are constituted to produce particular outcomes. Public confidence in the impartiality of the judiciary suffers as a result.
Our lineup of superior court judges shows serious ethnic, religious, gender and regional disparities.
There is blatant disregard of seniority and integrity in the promotion of judges.
Reform of the composition of the Judicial Appointments Commission is needed to reduce the overwhelming power of the CJ and his senior brother judges on the Commission.
There are allegations of abuse of power by past CJs in recommending the transfer of judges.
There is a need to curb the CJ’s power of patronage to recommend judges for the awarding of titles by the Yang di-Pertuan Agong.
It is recommended that, as in the United Kingdom, where all High Court judges are knighted, here too the honour of a federal Datukship should be bestowed as a matter of convention on all High Court judges.
Court of Appeal and Federal Court judges should be given the Tan Sri title and the Chief Justice should be elevated to a Tun.
Some bizarre judicial decisions need to be reviewed or revised. There are allegations of corruption within the judiciary and unholy alliances between top lawyers and some judges.
Some procedural reforms for case management are needed to reduce cost and time.
The new Chief Justice is confronting some of these allegations head-on. He has proposed a collective leadership and announced reforms to the empaneling process and to the system of case management.
Unfortunately, reforms need time to formulate and implement. The problem is that much of the post GE14 judicial leadership is on the verge of mandatory retirement.
CJ Tan Sri Richard Malanjum retires on Oct 13 and is eligible for extension for another six months only. The president of the Court of Appeal Tan Sri Ahmad Maarop reaches retirement age on May 25 next year.
Chief Judge of Malaya Tan Sri Zaharah Ibrahim retires on Nov 17 this year. Chief Judge of Sabah and Sarawak Datuk David Wong Dak Wah reaches retirement age on Aug 20 next year.
Many other senior and capable Federal Court and Court of Appeal judges also meet their retirement age at the end of this year or next year.
In the circumstances of the post GE14 era, the provision of the Federal Constitution’s Articles 125(1) on retirement age (66 years plus six months of possible extension) seriously hinders the ongoing internal effort to reform the judiciary.
It is therefore recommended that in line with many other countries, the age of retirement of our superior court judges should be extended. The most extreme case is the US Supreme Court, where the appointment is for life. Canada imposes the age of 75. The United Kingdom, Australia, Holland, South Africa, the Philippines and Indonesia observe the age of 70.
Singapore maintains age 65 but the president has the power to extend the age.
In some countries, like the United States, the age of retirement differs at the apex and other appellate courts.
It is recommended that Malaysia too should extend the judicial retirement age. If need be, this can be done progressively over a period of time, by considering one of the following variations:
• By giving to the top four judges (the Chief Justice of the Federal Court, president of the Court of Appeal, Chief Judge of Malaya, and Chief Judge of Sabah and Sarawak) a minimum of three years in the office they are holding irrespective of the age of retirement in Article 125(1). This will give the present top judges some time to set necessary reforms into motion;
• By extending the age of retirement of all Federal Court judges from 66 to 68; and
• By extending the age of retirement of all superior court judges from 66 to 68.
The necessary amendments to Article 125 will require a two-thirds majority in the Dewan Rakyat and Dewan Negara. This special majority is attainable with the support of Sabah and Sarawak MPs and some elements within Barisan Nasional. It is notable that last year, the then Barisan government had announced its intention of extending the age of judicial retirement.
The issue of judicial reform is urgent. Reform requires legal backing as well as the right leadership. Systems are as good as the people who administer them.
Given the scandals suffered by the judiciary in the last 30 years since the Tun Mohamed Salleh Abbas episode, it is apparent that there is no time to waste. The time is opportune and the right people are in place.
Emeritus Professor Datuk Dr Shad Saleem Faruqi is a holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are entirely the writer’s own.