I. “If you can hear a warning bell, beware, beware, for an elephant cometh this way”: (old Tamil proverb cautioning of an approaching danger)

[1]. The exodus

This judicial exodus, epitomised by the government’s conspicuous silence regarding Chief Justice Tun Tengku Maimun Tuan Mat’s extension of tenure, signals a dangerous regression from the judicial renaissance that followed the constitutional crisis of 1988.

The statistics reveal the magnitude of this crisis with stark clarity. In 2024, the Federal Court processed 606 files among eleven judges, translating to approximately 55 cases per judge involving constitutional questions of profound national significance.

This workload, whilst manageable with experienced jurists possessing deep institutional knowledge, becomes catastrophic when such expertise evaporates through mass retirements.

Research on Czech judges found that, “judicial experience is considered essential for the proper functioning” of the judiciary, and that, “as judges become more experienced, ‘between-judge disparities’ reduce across all the outcomes considered”.¹ https://eprints.whiterose.ac.uk/182204/3/manuscript%20without%20author%20details%200.11%20accepted%20changes.pdf, p.3, p.22 .

[2]. The Constitutional Emergency: A Selective Approach During a Leadership Crisis

The government’s selective approach to the extension of judicial tenure reveals a troubling pattern. It is a pattern of behaviour that undermines constitutional conventions, the choice of judicial excellence, and, crucially, judicial independence.

Whilst other Federal Court judges have received customary six-month extensions under Article 125(1) of the Federal Constitution, three pillars of judicial excellence—Chief Justice Tengku Maimun, Court of Appeal President Tan Sri Abang Iskandar Abang Hashim, and Federal Court Judge Tan Sri Nallini Pathmanathan — remain in administrative limbo.²https://theedgemalaysia.com/node/756261

Their potential departure represents an incalculable loss to Malaysian jurisprudence, particularly when Chief Justice Tengku Maimun’s tenure has been described as, “transformative” with, “a notable elevation in the intellectual rigour and standing of the Malaysian judiciary, inspiring many observers to describe it as a judicial renaissance after the constitutional crisis of 1988”.³ https://theedgemalaysia.com/node/756261

The Malaysian Bar has described these three judges as, “exemplifying the critical qualities essential for appellate and apex court positions: unwavering judicial independence and integrity; upholding the Rule of Law without fear or favour; administrative competence; public credibility; and a deep commitment to constitutional principles and human rights”.⁴ https://www.malaysianbar.org.my/article/news/press-statements/press-statements/press-release-judicial-extensions-promotions-and-appointments-the-nation-awaits

What the Bar Council did not mention was the deep legal scholarship that the nation is now set to lose. The simple expedient of a six-month extension would have resolved the issue, enabling, in that time, the selection of experienced judges for elevation.

II. The Problems

[1]. The Retirement Age Imperative: Beyond Conventional Wisdom

The current mandatory retirement age of 66, with a possible six-month extension to 66, represents a catastrophic waste of judicial talent at its peak. Whilst the Malaysian Bar has proposed increasing this to 70, international best practice and the exigencies of Malaysia’s current crisis demand a more ambitious approach—extending retirement to between 72 and 75 years.⁵ https://international.astroawani.com/malaysia-news/increase-judges-retirement-age-70-malaysian-bar-401034

This proposal transcends the Bar Council’s recommendation for compelling reasons. Judicial wisdom peaks in life’s seventh and eighth decades. Here, profound legal knowledge marries lived experience. The union births judgments of enduring constitutional weight.

Consider Lord Atkin—perhaps the Commonwealth’s greatest judicial mind. At 73, he penned his immortal dissent in Liversidge v Anderson [1941].⁶[1942] AC 206 or [1941] UKHL 1

Death claimed him at 76, still robed in service. Lord Denning departed the bench at 83.⁷There are other examples: Lord Hoffmann’s greatest House of Lords decisions came after age 65; while Justice Scalia’s most influential Supreme Court opinions emerged in his seventies.

Age refines judgment. Experience distills wisdom. Time transforms good judges into great ones.

The United Kingdom’s consultation on judicial mandatory retirement age specifically considers raising the age to 75, recognising that, “judicial office holders would choose to stay in office” at these ages given their accumulated expertise.⁸ https://consult.justice.gov.uk/digital-communications/judicial-mandatory-retirement-age/supporting_documents/judicialmandatoryretirementageconsultation.pdf, p.20

Second, international practice supports extended tenure. Singapore permits judicial service until 65 with presidential extensions, whilst Canada mandates retirement at 75, providing crucial institutional stability.⁹ http://judiciariesworldwide.fjc.gov/country-profile/singapore  The European Court of Human Rights requires judges to serve until 70, recognising that complex constitutional reasoning improves with experience.¹⁰ https://core.ac.uk/download/pdf/235244095.pdf, p.4

The lifetime tenure of US Supreme Court judges, again, rests on continuity while maintaining the separation of powers and judicial independence.

However, fixed terms until 72 and 75 provide a balance—sufficient tenure for judicial independence whilst ensuring periodic renewal of constitutional interpretation.

[2]. Comparative Judicial Remuneration: Malaysia’s Shameful Inadequacy

Malaysia’s judicial remuneration reveals a shocking disregard for the importance of the judicial office.

Current Federal Court judges receive RM28,500 monthly (approximately USD 6,300), whilst the Chief Justice receives RM36,000 monthly (approximately USD 8,000).¹¹ https://tcclaw.com.my/wp-content/uploads/2020/12/Judges_-Rumuneration-Act-1971.pdf, p.32

These figures, last revised in 2015, demonstrate Malaysia’s failure to maintain competitive judicial compensation.

Table 1: Comparative Judicial Salaries (2024 figures, converted to USD)

These figures, adjusted for purchasing power parity, reveal Malaysia’s judicial salaries to be approximately 70% below regional standards. The Commonwealth (Latimer House) Principles explicitly propose that, “appropriate salaries and benefits are essential to the proper functioning of the judiciary,” and that, “judicial salaries and benefits should be set by an independent body and their value maintained”.¹² https://www.malaysianbar.org.my/cms/upload_files/document/C. Judiciary and Judicial Appointments Commission – ILRC Submission.pdf, p.8

The Malaysian Bar’s proposal for a statutory Judges’ Remuneration Tribunal deserves immediate implementation. Such tribunals operate successfully in Canada, the United Kingdom, and Australia, ensuring judicial compensation remains competitive without political interference.¹³ https://www.malaysianbar.org.my/article/news/press-statements/press-statements/press-release-judicial-remuneration-upholding-principle-and-preserving-the-integrity-of-the-judiciary

The demand placed upon our judges is not commensurate with the work they do.

And there is no good reason for paying our judges a pittance and then expecting them to burn the candle at both ends and complete thousands of cases a year.

[3]. The Attorney-General’s Chambers Monopoly: a system that excludes private practitioners

Malaysia’s judicial appointment system suffers from a fundamental distortion—the overwhelming dominance of Attorney-General’s Chambers personnel in judicial selection.

Approximately 900 legal officers from the AGC compete for judicial positions, whilst 23,000 advocates and solicitors from Peninsular Malaysia and 3,000 from Sabah and Sarawak remain largely excluded from consideration. This represents a catastrophic waste of legal talent.

This system of ‘selective selection’ perpetuates a narrow prosecutorial mindset within the judiciary.

The AGC’s institutional culture fosters ‘an expectation’ that legal officers possess an ‘inherent right’ to judicial promotion upon reaching retirement age.

This entitlement mentality ignores the fundamental principle that judicial appointments must be based purely on merit, not administrative convenience.

As a former Court of Appeal Judge observed, the current ‘AGC system’ provides AGC officers with diverse career opportunities—“state legal advisor, ministry legal advisor, registrar of companies, senior federal counsel, Directors of Public Prosecution (DPPs), registrar of societies, public trustee”—whilst judicial officers face limited advancement prospects.¹⁴ https://www.malaymail.com/news/malaysia/2016/08/10/ex-judge-maintain-judicial-legal-services-system-to-allow-career-growth/1180029

However, this ‘administrative convenience’ cannot justify the systematic exclusion of private practitioners who possess superior advocacy skills, broader legal experience, and independence from executive  (‘government’) influence.

The current system produces judges with prosecutorial backgrounds ill-suited to the strong constitutional adjudication required at appellate levels.

[4]. The Senior Practitioner Paradox: Wasted Excellence

Malaysia’s judicial appointment system creates a perverse incentive structure that discourages the nation’s most accomplished lawyers from seeking judicial office.

Senior practitioners, having invested decades building successful practices and commanding substantial fees, face appointment to the High Court in the twilight of their careers. They serve briefly—often brilliantly—before mandatory retirement extinguishes their accumulated wisdom.

This “flickering candle” phenomenon wastes extraordinary legal talent. Senior practitioners appointed at 60 serve merely six years before retirement, providing insufficient time for elevation to the Court of Appeal or Federal Court. It is at the Court of Appeal and Federal Court that their expertise, skill, scholarship, specialisation, analytical and writing abilities would prove the most valuable.

The current system offers no incentive for accomplished advocates to sacrifice lucrative practices for a brief, ‘flash-in-the pan-judicial service’ that too at subordinate levels.

The solution requires fundamental restructuring.

First, extend retirement ages to 72 or 75, providing sufficient tenure to justify a career transition.

Second, create fast-track elevation procedures for exceptional appointees, enabling rapid progression to appellate courts.

Third, establish competitive remuneration packages that acknowledge the financial sacrifice inherent in judicial service.

Singapore’s system provides an instructive comparison. Judicial Commissioners serve alongside permanent judges, enabling assessment of suitability before permanent appointment.¹⁵ http://judiciariesworldwide.fjc.gov/country-profile/singapore This flexibility, combined with competitive remuneration and extended tenure, attracts Singapore’s finest legal minds to judicial service.

III. INTERNATIONAL BEST PRACTICES: LESSONS FOR TRANSFORMATION

[1]. British Commonwealth Innovation: The JAC Model

The United Kingdom’s Judicial Appointments Commission, established under the Constitutional Reform Act 2005, demonstrates how independent appointment processes enhance judicial quality.

The UK’s JAC selects candidates, “on merit, through fair and open competition from the widest range of eligible candidates”, eliminating the, “secret soundings” and, “taps on the shoulder” that previously characterised British judicial appointments.¹⁶ https://www.lawteacher.net/free-law-essays/constitutional-law/analysis-of-the-judiciary-selection-process-law-essay.php

The JAC’s composition ensures independence whilst maintaining stakeholder representation. Fifteen commissioners include judicial members, legal professionals, and lay representatives, preventing capture by any single interest group.

Crucially, the Lord Chancellor possesses only limited rejection powers, unable to substitute personal preferences for merit-based selection.

[2]. Canadian Wisdom: Security of Tenure and Independent Remuneration

Canada’s judicial system provides exemplary models for both tenure and remuneration. Federal judges serve until 75, providing crucial institutional stability while preserving institutional memory.¹⁷ https://core.ac.uk/download/pdf/235244095.pdf, p.4

The Canadian Judicial Council maintains professional standards whilst insulating appointments from political interference.

Canada’s Judicial Compensation and Benefits Commission operates independently, ensuring judicial remuneration remains competitive without political manipulation. This model prevents the degradation of judicial salaries that undermines independence and deters qualified candidates.

[1]. Nordic Excellence: The Danish Model

Denmark consistently ranks first in the European Union Justice Scoreboard for perceived judicial independence.¹⁸ https://portal.research.lu.se/files/101288961/Sunnqvist2021_Chapter_TheChangingRoleOfNordicCourts.pdf, p.167

This success stems from rigorous appointment processes, adequate security of tenure, and meaningful judicial self-governance. The Danish Domstolsstyrelsen operates independently of government, ensuring appointments reflect merit rather than political convenience.

IV. Urgent Reforms: A Blueprint for Renaissance

[1]. Constitutional Amendment for Extended Tenure

Parliament must immediately amend Article 125 to extend mandatory retirement from 66 to 72, with discretionary extension to 75 for exceptional judges. This reform would preserve institutional memory during the current crisis whilst aligning Malaysia with international best practice. The amendment should include staggered retirement provisions, preventing mass departures—no more than two Federal Court judges retiring annually.

[2].  JAC Transformation for True Independence

The Malaysian JAC Act 2009 requires a comprehensive overhaul to eliminate executive (‘government’)  dominance.

The ‘reformed’ Commission should comprise 11 members: the Chief Justice as Chairman, two Federal Court judges elected by their peers, two Court of Appeal judges elected by their peers, two High Court judges elected by their peers, the Malaysian Bar President, a member each of Sabah and Sarawak Law Societies and two lay members appointed by Parliament following public consultation.

The Prime Minister’s role should be eliminated entirely, with the Yang di-Pertuan Agong appointing judges on JAC recommendation alone: see here.

[3]. Independent Remuneration Framework

A statutory Judges’ Remuneration Tribunal should determine judicial salaries independently, conducting triennial reviews to maintain competitiveness.

Federal Court judges should receive compensation comparable to senior partners in leading law firms, acknowledging their sacrifice of private practice earnings for public service.

The tribunal should comprise retired judges, senior advocates, and economic experts, ensuring decisions reflect both legal expertise and economic reality.

[4]. Expanded Judicial Capacity and Specialisation

The Federal Court should expand from 14 to 21 judges, reducing individual caseloads whilst enabling constitutional specialisation.

Additional Court of Appeal judges are equally essential, with current numbers proving wholly inadequate for modern demands.

Specialised Constitutional Benches should handle fundamental rights cases, ensuring consistent jurisprudential development.

[5]. Merit-Based Selection

The reformed JAC must actively recruit from private practice, academia, and the broader legal profession.

Advertisement of judicial vacancies should be mandatory, with transparent selection criteria emphasising intellectual capacity, judicial temperament, and proven professional excellence: see here.

The current AGC monopoly must end, replaced by genuine competition among Malaysia’s finest legal minds.

V. Conclusion: The Choice Before Malaysia, and its PM

Malaysia’s Judiciary stands at a crossroads between institutional collapse and the continuing development of a strong judiciary.

The current crisis, whilst threatening, presents an unprecedented opportunity for fundamental reform. By implementing these recommendations—extended retirement ages, independent appointment processes, competitive remuneration, and genuine merit-based selection—Malaysia can build a judicial system worthy of its constitutional aspirations.

It should be a self-sustaining institution with clear systemic guidelines that cannot be buffeted by every wayward political wind. The System should be insulated from executive excesses or expedience.

Malaysia’s political leadership must choose between short-term convenience and long-term constitutional stability. History will judge harshly those who chose expedience over excellence, politics over principle, and personal advantage over public good.

The time for half-measures has passed. Only comprehensive reform can save Malaysia’s judiciary from institutional collapse and restore its rightful place as guardian of constitutional democracy.

The choice is stark: reform now, or watch Malaysia’s judicial system crumble under the weight of its own contradictions—not always of its own making.

The independence of the Judiciary, as so lucidly pointed out by Justice Christopher Chin in the Harris Salleh case [2023] — is that it ensures the legitimacy of any government in power.¹⁹ Harris bin Mohd Salleh v Chief Secretary, Government of Malaysia & Ors [2023] 10 MLJ 520, at paragraph [59]

These are his words:

“Legitimacy of the Government in the eyes of the populace is critical as the public must recognise the law and the Government as legitimate, failing which, the public will not believe in, and follow, the rule of law. ….”

We shall do well to remember that it serves the government to have an independent judiciary—for the one draws its legitimacy from the other.

∞§∞

The author thanks UK Menon’s timely assistance, for his standards are so very high; G. Naidu for answering at the drop of a hat; my colleagues KN Geetha, TP Vaani, JN Lheela and Lydia Jaynthi –  whose sedulous labours often go unpublished – but not unacknowledged.

Acknowledgements: The image is from Gabor Szuts, Unsplash

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