The Federal Court under her watch was the most progressive apex court in our 67-year legal history.
Among other pristine contributions, she nurtured the seeds of constitutional jurisprudence that had been planted by such distinguished former judges as Justice Raja Azlan Shah (as His Royal Highness was then), Datuk Seri Mohd Hishamuddin Yunus, Datuk Seri Gopal Sri Ram, Tan Sri Zainun Ali, Datuk Mah Weng Kwai, Tan Sri David Dak Wah Wong, and her immediate predecessor, Tun Ric-hard Malanjum.
Along with her learned colleagues, Tan Sri Nalini Pathmanathan and Tan Sri Abang Iskandar Abang Hashim, Tengku Maimun did much to strengthen our basic law and restore it to the high pedestal on which it was placed when Malaya began its tryst with destiny.
> Previously, the Malaysian judiciary was steeped in the tradition of English parliamentary supremacy. During her tenure, much to the displeasure of the executive and the “deep state”, constitutional review of legislation and executive action became an important justiciable issue.
> Article 4(1) on constitutional supremacy and Article 121(1) on “the judicial power of the Federation” were treated as generic, interconnected, and overarching.
> In contrast with the narrow, literal, grammatical interpretation of the Constitution in earlier years, in the “Maimun years” the Constitution was subjected to a purposive, holistic, and “constructive interpretation” by the apex court. The constitutional concepts of “life”, “liberty”, “law”, and “property” were interpreted prismatically.
> Separation of powers and independence of the judiciary were guarded against legislation that trespassed on judicial shores.
> The basic structure doctrine was revived that a constitutional amendment cannot destroy the foundational principles of the Constitution.
> Human rights were interpreted prismatically and as an interconnected whole. Laws conferring absolute discretion were read as a violation of equality under Article 8(1).
> Article 121(1A) on the independence of the Syariah Courts was reinterpreted to permit judicial review of the Syariah authorities if they act unconstitutionally and beyond the powers allocated to them by Schedule 9, List II.
> The Attorney General’s absolute powers under Article 145(3) to prosecute or not to prosecute were tamed in the case of Sundra Rajoo (2021).
> In some recent cases, constitutional guarantees may apply to private law situations.
> Administrative law issues (like natural justice) were constitutionalised. This is a remarkable development because in the past, in cases like Aliran, constitutional review cases were demoted to issues of statutory review.
> Ouster clauses in legislation were declared to be unconstitutional.
> Laws to combat subversion, previously given a free rein, were subjected to the limits prescribed in Article 149.
In brief, during Tengku Maimun’s tenure, constitutional and administrative law blossomed like never before.
Tributes have arrived from around the world. For example, Chief Justice Sundaresh Menon of Singapore has noted that apart from her adjudicatory work, Tengku Maimun contributed reforms in other areas like civil procedure, modernisation and digitalisation of the courts, and tech-driven initiatives to enhance the accessibility of the courts.
Mobile courts, initiated by her immediate predecessor, were extended to include urban areas.
With these sterling contributions and international accolades earned by Malaysia during her tenure, it is difficult to understand and accept why she and two of her learned colleagues were not given the six months extension that is permissible under Article 125(1) of the Constitution, even though four other judges of the Federal Court were extended. Such an extension is, of course, not a right but a discretion of the Yang di-Pertuan Agong on the advice of the prime minister.
I understand that nine out of 15 apex court judges have reached or are reaching the retirement age of 66. Some have been given the six-month extension, others not. A significant change in the apex court’s leadership and composition is around the corner.
The PM’s wide power to reject the Judicial Appointments Com-mission’s recommendations and to submit his own nominees to the Yang di-Pertuan Agong is coming under serious scrutiny.
While it cannot be denied that the PM has the ultimate power to choose the list of nominees, it must be borne in mind that the Yang di-Pertuan Agong, though a constitutional monarch, is entitled to advise, caution, warn, and delay.
Under Article 40(1), even in relation to his non-discretionary powers, His Majesty is entitled at his request to any information concerning the government that is available to the Cabinet.
Further, the King is required under Article 122B to consult the Conference of Rulers. Consultation does not require consent. How-ever, the Conference, under Article 38(2), may deliberate on questions of national policy and “any other matter that it thinks fit”.
In the past, the Conference’s wise counsel to the King has often influenced the choice of appointments. I am hoping, therefore, that the Yang di-Pertuan Agong and the Conference will ensure that high standards will be maintained in the choice of CJ and other holders of judicial office.
Tengku Maimun’s retirement and her non-extension have also exposed some amazing succession and administrative issues.
Her retirement on July 2 left a vacancy in the post of CJ.
Under the law, if the post falls vacant, the president of the Court of Appeal takes over temporarily till a new CJ is appointed.
The remarkable coincidence in this case was that the day after Tengku Maimun retired, Tan Sri Abang Iskandar Abang Hashim, president of the Court of Appeal, also reached 66 and his term was not extended.
So there was a vacancy not only in the CJ’s office but also in the office of the president of the Court of Appeal. Questions are being asked about why a succession plan was not already in place.
On July 3, the Chief Judge of the High Court of Malaya, Tan Sri Hasnah Mohamed Hashim, was appointed as acting CJ. This means that she is both acting CJ of the Federal Court as well as the Chief Judge of the High Court.
This may be legally permissible but is surely impractical and needs a relook at the law.
Further, Hasnah, as acting CJ, used her power under section 9(3) of the Courts of Judicature Act 1964 to appoint Datuk Zabariah Mohd Yusof as acting president of the Court of Appeal.
Temporarily, the two vacancies have now been filled.
The question remains unanswered as to why a succession plan was not already worked out and made known.
Coming back to the Constitution, its resurgence had given many of us much hope.
However, a period of uncertainty now faces us.
My hope is that the Constitution – our document of destiny, our chart and compass, our sail and anchor, our armour of defence against the passions, prejudices and vicissitudes of politics, the guardian of our rights and the source of our freedoms – will remain strong and its imperatives will one day become the aspirations of the people.
Emeritus Prof Datuk Dr Shad Saleem Faruqi is Principal Research Fellow at Universiti Malaya. The views expressed here are entirely the writer’s own.
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