8/1/2021 Allowing judicial reforms to take root | The Star

Allowing judicial reforms to take root


By SHAD SALEEM FARUQI

REFLECTING ON THE LAW

Thursday, 08 Nov 2018 12:00 AM MYT

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. Privacy - Terms

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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.
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It will make post-retirement assignments, handed down by the executive, become unattractive. This will
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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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TAGS / KEYWORDS:

Opinion , Shad Faruqi , Reflecting On The Law , Judicial Reforms , Retirement Age

Shad Saleem Faruqi

TOPIC:

Reflecting On The Law

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