.jpg)
As one of the key stakeholders in the administration of justice, the Malaysian Bar is deeply concerned about the ongoing delay in the appointment of the Chief Judge of Malaya (“CJM”), a post that has remained vacant since the end of February this year.
We acknowledge and appreciate the commendable efforts of YAA Tan Sri Datuk Amar Abang Iskandar Abang Hashim, who has assumed the role of acting CJM,1 in addition to his role as President of the Court of Appeal. However, it is crucial to recognise that these two positions were designed to be distinct: each with its own responsibilities, focusing on different tiers of the Court system. The fact that these positions have historically been held by different individuals also underscores the importance of maintaining the separation of these critical judicial functions.
The Malaysian Bar has closely followed public discourse on this issue. We share the public’s concern that the continued vacancy in this key position could undermine the perception of stability and leadership within the Judiciary. The role of the CJM is not merely symbolic but is essential in overseeing the Judiciary, ensuring the smooth administration of justice, and safeguarding the independence of the courts.
Moreover, we firmly believe that the Malaysian Judiciary is composed of capable, experienced, and highly qualified judges who are more than prepared to assume the role of CJM. Without a doubt, our judges would have spent years in the legal profession and on the Bench developing both the legal and managerial acumen necessary to lead the Judiciary. Hence, there seems to be no good reason for the delay in appointing a new CJM.
The CJM holds many important functions pertaining to the administration of the High Court in Malaya. One of the main responsibilities of the CJM is the delegation of cases between the High Court Judges.2 Case law3 has determined that this power is a discretion of the CJM, and is thus not amenable to judicial review.
The CJM also has a role in the appointment of High Court Judges serving in Peninsular Malaysia. Before tendering advice to the Yang di-Pertuan Agong (“YDPA”) on the appointment of a High Court Judge, the Prime Minister is obliged to consult both the Chief Justice and the CJM.4 Even with the transfer of a Judge from one High Court to another, a recommendation may be made by the Chief Justice to the YDPA, after consulting both the CJM and the Chief Judge of Sabah and Sarawak.5
When it comes to regulating and prescribing the procedure in the Courts, the CJM also plays a central role. The CJM sits as one of the members of the Rules Committee, which is responsible for issuing the Rules of Court. The Rules of Court determine matters of procedure and are invaluable for the smooth and effective flow of litigation. Additionally, the CJM has the authority to issue practice directions on the interpretation and execution of the Rules of Court.6
The foregoing is merely a glance at the many responsibilities of the CJM. Although a senior judge may assume the role of acting CJM in the event of a vacancy, this should only be a stop-gap measure when the Office becomes immediately vacant. It should not be a permanent state of affairs. There is an urgent need to fill this vacancy, not only because of the importance of the CJM’s Office, but because allowing this vacancy to persist prevents the progression of judges within the system who have spent their entire careers honing their judicial skills and abilities. It would be a great disservice to the Judiciary to withhold the progression of these judges, as they will not be able to make use of their wisdom and skills for the betterment of the Malaysian justice system. This is especially pertinent, considering judges undergo compulsory retirement at the age of 66 years.7
Aside from delaying the progression of judges up the ranks, this stagnancy could also prevent the appointment of new Judicial Commissioners from either the Bar or the Judicial and Legal Services. There are many members of the legal profession who have dedicated their time and energy to becoming leading practitioners, often in niche areas of law, and are willing to further contribute to the development of the law by joining the Bench. Delays in appointing new Judicial Commissioners would result in frustration, and even deter some from applying to join the Judiciary. Such a situation would be to the detriment of our justice system.
In recognising the importance of the role of the CJM in upholding the rule of law and ensuring continued public confidence in our legal system, the Malaysian Bar urges the expedition of the appointment of a new CJM. Any further delay risks undermining the progress our Judiciary has made and could impede the effective administration of justice.
Mohamad Ezri b Abdul Wahab
President
Malaysian Bar
19 September 2024
1 “Abang Iskandar appointed acting Chief Judge of Malaya”, New Straits Times, 6 March 2024.
2 Courts of Judicature Act 1964, section 20.
3 See, for instance, Mkini Dotcom Sdn Bhd & Ors v Chief Judge of Malaya & Ors [2016] 8 MLJ 357.
4 Federal Constitution, Article 122B.
5 Federal Constitution, Article 122C.
6 Rules of Court 2012, Order 92, Rule 3B.
7 Federal Constitution, Article 125, Clause 1.