NOVEMBER 15 ― Federal Court judge Datuk Mohamad Zabidin Mohd Diah has been appointed as the acting Chief Judge of Malaya (CJM).

The post of the CJM was left vacant following the retirement of Tan Sri Azahar Mohamed on October 27.

This is not the first time that the office has been left vacant following the retirement of the incumbent CJM. Azahar himself was appointed as the acting CJM following the retirement of Tan Sri Zaharah Ibrahim on May 16, 2019. He was only appointed to the office some three months later, on August 8.

The office of the CJM is established by Article 122AA(1) of the Federal Constitution. The CJM "shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers” ― Article 122B(1).

Before tendering his advice as to the appointment of the CJM, the prime minister (PM) shall consult the Chief Justice of the Federal Court, or more commonly referred to as the Chief Justice of Malaysia ― Article 122B(2).

Interestingly, before tendering his advice as to the appointment of the CJM, "the [PM] shall consult the [CJM]” ― Article 122B(3).

This suggests that there must be consultation with the incumbent CJM before he/she is out of office.

Interestingly also, the Constitution is silent on the appointment of an acting CJM or Chief Judge of Sabah and Sarawak (CJSS) for that matter.

However, Section 28(2) of the Eleventh Schedule of the Federal Constitution allows for the duty of the holder of an office to be performed by a person duly appointed to act for him.

Accordingly, Section 9(1B) of the Courts of Judicature Act 1964 (CJA) provides that whenever "during any period, owing to illness or absence from Malaysia or any other cause, the [CJM] is unable to exercise the powers or perform the duties of his office, the powers shall be had and may be exercised and the duties shall be performed by a Judge of the Federal Court designated for that purpose by the Chief Justice after consulting the Chief Judge of that High Court.”

Further, Section 9(3) CJA states that whenever the office of the CJM is vacant, the powers of the CJM "shall be had and may be exercised and his duties shall be performed by” a judge of the Federal Court "designated for that purpose by the Chief Justice.”

The constitutional scheme of things clearly provides for consultation with the incumbent CJM before he/she is out of office for the appointment of a successor.

Section 9(1B) and (3) CJA allows for appointment of an acting CJM "during any period, owing to illness or absence from Malaysia or any other cause” ― that is, under extenuating circumstances ― during which there is no office holder.

This could be seen in the appointment of Senior Federal Court judge Datuk Seri Mohd Zawawi Mohd Salleh who temporarily assumed the duties of the CJM when Azahar was reported to have been hospitalised in 2021.

A judge of the superior court (Federal Court, Court of Appeal and High Court) holds office "until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve” ― Article 125(1) read with clause (9).

Accordingly, the search for a new CJM must kick start before the office holder retires mandatorily under the constitution.

It must start with the PM. It is a constitutional imperative.

* This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.