Allowing judicial reforms to take root

UPON coming to power, the post GE-14 government undertook a number of institutional reforms. From the outset it was realised that structural changes are not enough. Institutions are as good as the people who administer them. Good leadership is crucial.

How effective the reforms will turn out to be remains to be seen. However, in one area, positive changes are quite discernible and that is the administration of the superior courts.

To improve the appearance of impartiality and dispel notions of court rigging, the new Chief Justice has ruled that the empanelling of a bench to hear a case will henceforth not be done at the discretion of the Chief Justice or the Registry but by a system of balloting.

In all important constitutional law cases before the Federal Court, a quorum of nine judges, including the top four, will sit to hear those cases. Cases of public importance will be deliberated by a seven-member bench. Ordinary cases will have a bench of five.

To promote judicial independence and individual scholarship, the Chief Justice has encouraged his brethren to give dissenting judgements whenever their conscience requires them to break ranks with their peers.

A series of democratic, consultative processes has been initiated. There will be collegiate decision making amongst the top four judges. A committee consisting of the judiciary, the Attorney General’s Chamber and the three Bars will meet monthly to iron out any creases in the administration of justice.

The Bar will be consulted on all appointments of judicial commissioners even though the Judicial Appointments Commission Act does not require such consultation with the Bar.

Case management will be done online and this will save the lawyers much time. The rigid policy on postponements will be reviewed to balance efficiency with justice and compassion.

The computerisation of judicial processes will be reviewed with a view to improvement. The social welfare of the lower rungs of the judicial staff will be looked into.

To make public interest decisions accessible and comprehensible to the public, a case summary will be made available in the public domain. All judges, including magistrates, have been instructed to give brief reasons for their decisions. PR experts are being consulted to improve public perception of the administration of justice.

Heartening though the above reforms are, there is one serious problem. The entire leadership of the superior courts is scheduled to retire in about nine months due to the mandatory retirement age of 66 years (plus a possible extension of six months) as laid down in Article 125(1) of the Federal Constitution.

All four top judges retire in 2019. Chief Justice Tan Sri Richard Malanjum ends his six-month extension on April 13. Court of Appeal president Tan Sri Ahmad Maarop retires on May 25 unless extended. Chief Judge of Malaya Tan Sri Zaharah Ibrahim ends her term on May 17 after a six-month extension. Chief Judge of Sabah and Sarawak Datuk David Wong retires on Aug 20 unless extended.

Of the other nine judges of the Federal Court, Tan Sri Hassan Lah, Tan Sri Zainun Ali and Tan Sri Aziah Ali retired in 2018. Datuk Seri Balia Yusof (whose term was extended by six months) retires on March 26, 2019. Tan Sri Ramly Ali turns 66 on Feb 2, 2019, while Datuk Alizatul Khair reaches the mandatory age on April 22 next year.

The rest of Federal Court judges, who continue beyond 2019, are Tan Sri Azahar Mohamed (who turns 66 on April 27, 2022), Datuk Rohana Yusuf (who reaches mandatory age on May 5, 2022); and Datuk Setia Haji Mohd Zawawi (who reaches 66 on January 16, 2022). They will be joined by three recent appointees.

To maintain and sustain judicial reforms, it is necessary that the age of retirement for superior court judges be extended from 66 to 68 or 70. If there is reluctance to extend the retirement age of all superior court judges, a beginning can be made with the Federal Court. It is not uncommon for apex courts to have a higher retirement age.

In the Supreme Court of the United States and in constitutional courts in Austria and Greece, judges are appointed for life.

In Canada, the retirement age is 75. In Belgium, Denmark, Ireland, the Netherlands, Norway and Australia, the age is 70 years. In Germany it is 68.

Increasing the retirement age has many advantages. It will bring the Malaysian judiciary in line with the norm worldwide. It will permit continuation of a strong talent pool of experienced judges. Judicial reforms, recently introduced, will have time to get entrenched.

It will make post-retirement assignments, handed down by the executive, become unattractive. This will improve independence of the judiciary and strengthen the rule of law, both of which are crucial to sustain democracy.

Critics of this proposal may, however, point out that any law that extends the retirement age will benefit not only the judges with integrity and conscience but also those who in the past allowed their judicial duties to be subordinated to political, ethnic and other considerations.

If there is sustainable evidence of such judicial misbehaviour, it should be investigated, even if the judges concerned have retired. If there are perverse judicial decisions dictated by extra-legal considerations, they should be reopened. The Federal Court does have such an exceptional power.

Finally, any constitutional amendment to increase the retirement age of judges will require a two-thirds majority in both the Dewan Rakyat and the Dewan Negara – something that is challenging but not impossible to attain in the present fluid circumstances. Serious and immediate consideration beyond partisan politics must be given to it.

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.

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