Can additional judges hold the Chief Justice and PCA positions?

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Additional Judges Cannot Hold the Chief Justice and PCA Positions

The Malaysian Bar contends that the appointments of the current Chief Justice and the President of the Court of Appeal as additional judges are unconstitutional and unprecedented. This position is based on the interpretation that Article 122(1A) of the Federal Constitution, which allows for the appointment of additional Federal Court judges, does not permit these individuals to simultaneously hold the substantive roles of Chief Justice and President of the Court of Appeal. The Bar argues that the constitutional framework clearly delineates these as distinct positions, with Article 122(1) stipulating that the Federal Court comprises a Chief Justice, a President of the Court of Appeal, and other judges, implying they must be separate individuals.
Article 122(1A) Does Not Permit Extension of Substantive Roles

The Malaysian Bar's primary argument is that Article 122(1A) of the Federal Constitution, while enabling the appointment of additional judges to the Federal Court, does not provide a mechanism for these additional appointments to extend the tenure of the Chief Justice or the President of the Court of Appeal. The provision specifies that the Yang di-Pertuan Agong, acting on the advice of the Chief Justice, may appoint individuals who have held high judicial office as additional judges for specific purposes or periods. The Bar asserts that this article clearly does not allow for additional judges to be appointed to continue in the substantive roles of Chief Justice and President of the Court of Appeal under Article 122B(1).
Constitutional Framework Distinguishes Chief Justice and Additional Judges

Further substantiating their claim, the Malaysian Bar points to Article 122(1) of the Federal Constitution. This article outlines the composition of the Federal Court, stating it shall consist of a Chief Justice, the President of the Court of Appeal, the Chief Judges of the High Courts, and other judges. The phrasing of this article unequivocally indicates that the Chief Justice and any additional judge are intended to be distinct persons, not one and the same. The same principle, according to the Bar, applies to the position of the President of the Court of Appeal.
Advice on Appointments Post-Retirement is Unconstitutional

A further contention raised by the Malaysian Bar concerns the advice given for these appointments. The advice for the appointments of the current Chief Justice and President of the Court of Appeal as additional judges was purportedly given by the former Chief Justice on March 30, 2017, a day before his retirement. The Bar argues that Article 122(1A) does not permit a former Chief Justice to advise on appointments of additional judges that are to take effect after he has ceased to hold office. Such an action, they contend, oversteps the Chief Justice's constitutional role and encroaches upon the duties of the incumbent Chief Justice.
Appointments Undermine Judicial Integrity and Public Confidence

The Malaysian Bar expresses concern that these appointments, being both unconstitutional and unprecedented, could lead to a severe erosion of public confidence in the Judiciary and its independence. They believe that circumventing the established constitutional process for appointments raises questions about the selection of candidates and potentially deprives deserving judges of opportunities for promotion. The Bar emphasizes the importance of upholding the Federal Constitution to avoid a constitutional crisis, referencing the repercussions of the 1988 judicial crisis.

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Can additional judges hold the Chief Justice and PCA positions?

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