KUALA LUMPUR, June 28 ― Federal Court judge Tan Sri Azahar Mohamed could be Malaysia's next Chief Justice if the selection is only from among the pool of existing Federal Court judges.
Just how likely is it?
While three Federal Court judges have been mentioned as suitable candidates to be the country's next Chief Justice, their age and the resulting short tenure ― between about two months to 16 months ― could make this unlikely.
At least half of the 11 Federal Court judges without additional positions are already heading towards the retirement age of 66 years old or towards their Constitutional age limit of 66 years and six months, based on reports of their age.
Previous news reports have placed Tan Sri Hasan Lah, Tan Sri Aziah Ali, Tan Sri Zainun Ali as respectively retiring at age 66 this March 3, April 4, May 21 respectively, but it is believed all three received the permitted six-month extension.
Datuk Seri Balia Yusof Wahi, Tan Sri Zaharah Ibrahim will reportedly hit retirement age on September 25 and November 16 this year, while Tan Sri Ramly Ali will reportedly retire next February 23 and Datuk Alizatul Khair Osman Khairuddin was already aged 64 when appointed on September 23, 2017.
While Azahar has three Federal Court colleagues who are relatively young (Datuk David Wong Dak Wah, Datuk Mohd Zawawi Salleh, Datuk Rohana Yusuf at reported ages of 64, 62 and 61 as of April 27, 2018), they are too junior in terms of experience as they were appointed only two months ago.
So among his peers in the Federal Court, Azahar at the age of 62 has the advantage in terms of age where he can serve for a longer term if picked as Chief Justice and also relatively more experienced.
But that is assuming that the new Pakatan Harapan government does not amend the Federal Constitution ― which will need a two-thirds approval in Parliament ― to increase the Constitutional age limit for judges to 70 years old, as a former judge has suggested.
It becomes even harder to be sure when one considers that the Judicial Appointments Commission (JAC) will be free to select and recommend candidates to the prime minister for the next CJ from beyond the pool of Federal Court judges.
In fact, the JAC will be able to choose from any Malaysian who in the past 10 years was a lawyer, or served in the country's judicial and legal service or in a state's legal service, and also fulfilled the necessary requirements.
For the record, the Federal Court is currently composed of the Chief Justice of Malaysia and the President of the Court of Appeal (currently Tun Md Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin who will be resigning July 31), the Chief Judge of Malaya (now Tan Sri Ahmad Maarop), the Chief Judge of Sabah and Sarawak (now Tan Sri Richard Malanjum), 11 other Federal Court judges and any additional judges (Tan Sri Jeffrey Tan Kok Wha whose two-year term will end this month).
So who is Azahar?
Johor-born Azahar, 62, is a Federal Court judge who has close to 40 years’ legal experience that was only briefly interrupted by further studies.
Azahar, who is an alumnus of Universiti Malaya and London School of Economics and Political Science, started his legal career just a few weeks before turning 24 in 1980 as a senior assistant registrar in the High Court in Johor Bahru.
He has worn various hats in his career, including as a deputy public prosecutor, senior federal counsel and as a judge at all levels of the judiciary ― Magistrates' Court, Sessions Court, High Court, Court of Appeal and now Federal Court.
He was even the head of the Attorney-General's Chambers' (AGC) prosecution division from June 1997 to 2000, and head of the AGC's civil division from February 2000 to 2004.
He then became a judicial commissioner in August 2004, before being confirmed as a High Court judge in July 2006, and promoted to be a Court of Appeal judge on May 11, 2011 and Federal Court judge on September 12, 2014.
Highlights of legal career
Azahar was on the prosecution team against former deputy prime minister Datuk Seri Anwar Ibrahim in the latter's corruption case and first sodomy case in the 1990s.
Azahar has sat on the panel of judges for many high-profile and landmark cases, including a court case tied to the 2009 Perak constitutional crisis.
In September 2009, Azahar as a High Court judge dismissed DAP's former Perak Speaker V. Sivakumar's lawsuit over the latter's forced physical removal from the state assembly and appointment of Barisan Nasional's R. Ganesan as his successor. Sivakumar had sued for alleged assault and false imprisonment during the May 7, 2009 state assembly sitting.
Azahar was on the panel of Court of Appeal judges which had on May 30, 2013 upheld former Selangor Mentri Besar Dr Mohamad Khir Toyo's conviction and one-year jail sentence in a corruption case over two plots of land and a bungalow. The Federal Court in September 2015 upheld the conviction and one-year jail term.
On January 21, 2015, Azahar was on the Federal Court's five-man panel that unanimously decided against allowing the hearing of the Catholic Church's final bid to challenge the Home Ministry's ban of the word “Allah” in the internal weekly paper Herald's Bahasa Malaysia section.
On October 8, 2015, the Federal Court's five-man panel including Azahar set aside a previous landmark court ruling in a case involving three transgenders. The previous Court of Appeal ruling had found a Negri Sembilan Shariah law which criminalises cross-dressing to be unconstitutional and invalid.
In February 2016, Azahar was on the Federal Court panel that controversially decided to split the custody of two children after asking them which parent they wanted to follow, resulting in heartbreak for Hindu mother S. Deepa after the judges decided that the son would be given to the Muslim convert ex-husband who had abducted him.
In March 2016, the Federal Court in a 3-2 decision reversed an earlier landmark decision that allowed non-Muslim Victoria Jayaseele Martin to practise as a Shariah lawyer in the Federal Territories. Azahar was one of the three judges in the majority ruling who ruled against Victoria.
In April 2016, Azahar was on the Federal Court panel that ordered the Inspector-General of Police to arrest Hindu mother M. Indira Gandhi's Muslim convert ex-husband for failure to comply with a court order to return her child. The ex-husband and the child has yet to be tracked down.
In July 2017, the Federal Court's three-man panel including Azahar refused to grant leave for appeal to the Malaysian Bar and two others who wanted to initiate their challenge to quash then Attorney-General Tan Sri Mohamed Apandi Ali's decision to close investigations on and absolve Datuk Seri Najib Razak of wrongdoing over a RM2.6 billion donation in the latter's bank account.
In November 2017, Azahar was one of four Federal Court judges who ruled in a 4-1 decision that the families of those who died in police custody would not be entitled to claim for exemplary damages, reducing their rights for compensation. The three cases ruled on included that of A. Kugan, who died in 2009 under police custody.
Other key positions
Azahar and four others were appointed by then Prime Minister Datuk Seri Najib Razak to the nine-member Judicial Appointments Commission (JAC), with their two-year term running from April 17, 2017 to April 16 next year.
If Azahar does become a candidate for either the Chief Justice or President of Court of Appeal positions that will go vacant from July 31, he will be disqualified from the JAC's selection meeting that will vet through and recommend candidates to the prime minister who will be advising the country's ruler on the new appointments. The JAC's selection meeting will have enough quorum with at least seven members.
According to the Judicial and Legal Services Commission's website, Azahar is listed as one of six current members of the commission.
The commission's Constitutional function is to appoint, confirm, transfer, promote or carry out disciplinary control over legal and judicial officers ― which include prosecutors, magistrates and session court judges.
