by Joshua Wu Kai-Ming | Dec 3, 2025 | Law
Article 125(1) of the Federal Constitution (“FC”), which governs the tenure of Federal Court judges and the extension of their tenure, provides the following:
“Subject to the provisions of Clauses (2) to (5), a judge of the Federal Court shall hold 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.” (Bold and underline mine)
A legal issue arises as to whether, under Article 125(1) of the FC, the Yang di-Pertuan Agong (“YDPA”) exercises the power to extend the tenure of Federal Court judges on advice or at his discretion.
Both positions are legally tenable, and can be reasonably argued:
(a) The YDPA’s power under Article 125(1) is exercisable “in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet”[1] [“Position 1”];
(b) The YDPA’s power under Article 125(1) of the FC is exercisable “in his discretion”[2] [“Position 2”].
Position 1
Some of the arguments in support of Position 1 are as follows:
(a) As a general rule, the YDPA acts on advice.[3] The limited exceptions are those found in Article 40(2) of the FC. Hence, the YDPA’s power under Article 125(1) of the FC should be exercised on advice except where expressly provided otherwise;
(b) The phrase “as the Yang di-Pertuan Agong may approve” in Article 125(1) of the FC is too vague, and does not fall within the exception of “in any other case mentioned in this Constitution” found in Article 40(2) of the FC; and
(c) The YDPA acts on the advice of the Prime Minister on the appointment of judges[4] and so it would be reasonable to imply/presume that it is the same case when it comes to the extension of the tenure of judges under Article 125(1) of the FC.
Historically, it is evident that the Executive has regarded Position 1 as the correct position.[5]
Position 2
Several arguments in support of Position 2 include:
(a) Article 125(1) of the FC is silent on the YDPA needing to act on advice, unlike the appointment of judges under Article 122B of the FC. Parliament could have, but did not, insert an express requirement for the YDPA to act on advice when exercising his power under Article 125(1) of the FC; and
(b) Parliament expressly used the phrase “as the Yang di-Pertuan Agong may approve” in Article 125(1) of the FC. This phrase does not appear anywhere else in the FC, and falls within the “in any other case mentioned in this Constitution” exception in Article 40(2) of the FC.
The late Karpal Singh s/o Ram Singh Deo, in a press statement on the tenure of Tun Ahmad Fairuz Sheikh Abdul Halim (the then Chief Justice) who was due to retire soon, was in effect of the view that Position 2 was correct in law.[6]
It will be interesting to see which position the Judiciary finds more persuasive in the event the matter is brought before the courts.
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by Joshua Wu Kai-Ming | Jun 30, 2025 | Law
According to the Judicial Appointments Commission (“JAC”)’s website, there are 2 vacancies for the post of “Judge of Federal Court”[1]:
The information on the JAC’s website is presumably accurate, at the time of its publication.
However, based on publicly available information, the number of vacancies in the Federal Court are expected to rise with the following judges who have either retired or are expected to retire in 2025:
Judge
(in order of seniority of position, followed by date of appointment) |
Initial Retirement Date
(if there is no extension) |
Extended? |
Extended Retirement Date
(if there is an extension) |
| Tun Tengku Maimun binti Tuan Mat (Chief Justice) |
1/7/25[2] |
Uncertain (as at the time of writing)[3] |
N/A |
| Tan Sri Datuk Amar Abang Iskandar bin Abang Hashim (President of the Court of Appeal) |
2/7/25[4] |
Uncertain (as at the time of writing)[5] |
N/A |
| Tan Sri Hasnah binti Dato’ Mohammed Hashim (Chief Judge of Malaya) |
14/5/25[6] |
Yes, for 6 months[7] |
14/11/25 |
| Tan Sri Dato’ Sri Abdul Rahman Sebli (Chief Judge of Sabah & Sarawak) |
24/1/25[8] |
Yes, for 6 months[9] |
24/7/25 |
| Tan Sri Datuk Nallini Pathmanathan |
22/8/25[10] |
Uncertain (as at the time of writing)[11] |
N/A |
| Dato’ Zabariah binti Mohd Yusof |
10/4/25[12] |
Yes, for 6 months[13] |
10/10/25 |
| Tan Sri Harmindar Singh Dhaliwal |
October 2024 |
Yes, for 6 months[14] |
22/4/25[15] |
| Datuk Abdul Karim Abdul Jalil |
10/4/25[16] |
Reportedly offered extension but refused the offer[17] |
N/A |
| Datuk Hanipah binti Farikullah |
22/5/25[18] |
Yes, for 6 months[19] |
22/11/25 |
Other than those mentioned above, six (6) Federal Court judges remain at the time of writing.[20]
Four (4) of the six (6) remaining Federal Court judges will likely be appointed to office bearer/holder positions of the Judiciary.
This would then result in a significant vacancy for the post of Judge of the Federal Court, with two judges remaining out of an ideal of eleven judges.
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by Joshua Wu Kai-Ming | May 7, 2025 | Law
The civil courts have consistently recognised that the superior civil courts (namely the High Court, the Court of Appeal, and the Federal Court) are creatures of statute.
On the High Court being a creature of statute, the Federal Court in Gan Boon Aun v Public Prosecutor [2016] 4 MLJ 265 held the following:
“It is our considered view that the High Court, being a creature of statute, has no power to enlarge its jurisdiction under ss 30(2) and 84(1) of the CJA.”[1] (Emphasis mine)
As for the Court of Appeal being a creature of statute, this was acknowledged by the Federal Court in Dr Koay Cheng Boon v Majlis Perubatan Malaysia [2012] 3 MLJ 173:
“Being a creature of statute, the Court of Appeal has no power to enlarge its jurisdiction.”[2] (Emphasis mine)
The Federal Courts have accepted that even they are creatures of statute.
In Auto Dunia Sdn Bhd v Wong Sai Fatt & Ors [1995] 2 MLJ 549, Edgar Joseph Jr FCJ was of the following view:
“It is an elementary proposition that this court is a creature of statute and that equally a right of appeal is also a creature of statute, so that unless an aggrieved party can bring himself within the terms of a statutory provision enabling him to appeal, no appeal lies.”[3] (Emphasis mine)
Similarly, the Federal Court in Megat Najmuddin bin Dato Seri (Dr) Megat Khas v Bank Bumiputera (M) Bhd [2002] 1 MLJ 385 held as follows:
“The view expressed by his Lordship is but a mere reflection of the intention of Parliament. The Federal Court is a creature of statute. So is the right of appeal. This means that unless an aggrieved party can bring himself within the parameters of s 96(a) of the CJA, no appeal lies.”[4] (Emphasis mine)
In Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101, the Federal Court clarified that “statutes” included the Federal Constitution:
“The point to note here is that both courts, civil and shariah, are creatures of statutes. Both owe their existence to statutes, the Federal Constitution, the Acts of Parliament and the State Enactments. Both get their jurisdictions from statutes ie Constitution, federal law or state law, as the case may be.”[5] (Emphasis ours)
The very existence and constitution of the superior civil courts are established by virtue of Part IX of the Federal Constitution.[6]
Notably, certain aspects of the jurisdictions of the Court of Appeal and the Federal Court are explicitly provided for in the Federal Constitution.[7]
Notwithstanding that, the Federal Constitution provides that the following are “as may be conferred by or under federal law” or “as may be provided by federal law”:
(a) The jurisdiction and powers of the High Court;[8]
(b) The other (read: additional/further) jurisdiction(s) of the Court of Appeal;[9] and
(c) The other (read: additional/further) jurisdiction(s) of the Federal Court.[10]
The Courts of Judicature Act 1964, an ordinary statute, is one such federal law.
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by Joshua Wu Kai-Ming | Apr 2, 2025 | Law
In Ayer Molek Rubber Co Bhd v Insas Bhd & Anor [1995] 2 MLJ 734 (“Ayer Molek”), the Court of Appeal had made certain remarks against the High Court judge, the applicants, and the applicants’ counsel in its written grounds of judgment.[1]
On the appeal to the Federal Court in Insas Bhd. & Anor v. Ayer Molek Rubber Co. Bhd. & Ors [1995] 2 MLJ 833 (“Insas Bhd”), and on the application of the applicants, the Court of Appeal’s remarks were expunged:
“The objectionable and wholly offensive remarks made against a court of law, the plaintiffs and their solicitors, and the learned High Court judge, all of whom had had no opportunity to defend themselves in the face of such unwarranted and unjustified criticisms, ought to be expunged from the judgment of the Court of Appeal, as it has a tendency to bring the whole administration of law and order in the courts into disrepute. It is judicially recognized that judicial pronouncements should be judicial in nature and not depart from sobriety, moderation, and reserve.” (Emphasis mine)
The Supreme Court of India in The State of Uttar Pradesh vs Mohammad Naim AIR 1964 SC 703 (“Mohammad Naim”) laid down the following instructive test when considering whether to expunge remarks made in written grounds of judgment:
“It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider: (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself: (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.”[2] (Emphasis mine)
The test in Mohammad Naim did not feature in Insas Bhd even though Mohammad Naim was decided 30 years prior.[3]
Having said that, the factors taken into account by the Federal Court in Insas Bhd appear to mirror the considerations laid out in Mohammad Naim.
The test in Mohammad Naim, interestingly, was adopted and then added to by the Federal Court in Metramac Corporation Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (interveners) [2007] 5 MLJ 501:
“In State of Uttar Pradesh v Mohd. Naim, SK Das J, delivering the judgment of the court said that in such cases ‘it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct’.
I agree that the sensible approach for this court to take is first to consider whether the statements, on the face of it, are offensive, objectionable, disparaging, unjust, unjustified and so on. If so, then the court should consider the three points mentioned above. However, there may be other factors arising from the circumstances of the case that may be relevant.”[4] (Emphasis mine)
However, the test in Mohammad Naim was applied as is by the Federal Court in Dato’ Seri Anwar bin Ibrahim v Public Prosecutor [2014] 3 MLJ 774[5]:
“Based on the above three considerations or tests propounded in the case of Mohd Naim and applying them in the context of the present case we agree with the submissions of learned deputy public prosecutor that the three tests had been satisfied justifying the learned judge to make the remarks which the learned judge did in the impugned paragraph.” (Emphasis mine)
The courts in the following cases expunged remarks from the written grounds of judgments of the courts below them:
1. PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd (Asian International Arbitration Centre, intervener) [Federal Court Civil Application No 08(i)-394–07 of 2018(W)][6];
2. Lim Tuck Sun v Celcom (M) Bhd & Ors [2025] MLJU 1204 (CA);[7] and
3. Phileo Promenade Sdn Bhd & Anor v Premier Model (M) Sdn Bhd [2003] 2 MLJ 159 (CA)[8].
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by Joshua Wu Kai-Ming | Sep 4, 2024 | Law
1. Consists of two aspects
In Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2022] 1 MLJ 1, the Federal Court made the following observations about ‘natural justice’:
“… As is now well-established, there are two aspects to the breach of natural justice principle. The first is the rule against bias and the second, the right to be heard.”[1] (Emphasis mine)
“…The first was the rule against bias (nemo judex in causa sua) or the rule that no one may act as a judge in his own cause. The second is that no person should be condemned unheard or without prior notice of the allegations against him (audi alteram partem). The instant case is only concerned with the audi alteram partem rule.”[2]
2. Included in the right to a fair trial
The Federal Court in Ketheeswaran a/l Kanagaratnam & Anor v Public Prosecutor [2024] 1 MLJ 851 agreed with the submission of the appellants therein that the right to a fair trial includes the rules of natural justice:
“The appellants have cited numerous authorities for the proposition that the right to a fair trial includes the rules of natural justice, and that an integral part of arts 5(1) and 8(1) include procedural fairness. We do not think these principles are in dispute.”[3] (Emphasis mine)
3. Applies to every case where an individual is adversely affected by an administrative action
This legal proposition was put forth by Raja Azlan Shah FJ (as His Majesty then was) in Ketua Pengarah Kastam v. Ho Kwan Seng [1977] 2 MLJ 152:
“In my opinion, the rule of natural justice that no man may be condemned unheard should apply to every case where an individual is adversely affected by an administrative action, no matter whether it is labelled ‘judicial’, ‘quasi-judicial’, or ‘administrative’ or whether or not the enabling statute makes provision for a hearing.”[4] (Emphasis mine)
Raja Azlan Shah FJ’s views above were cited approvingly by the Federal Court in Majlis Peguam Malaysia v Syed Ahmad Imdadz B Said Abad & Anor [2024] 1 MLJ 527.[5]
4. The breach of it can be grounds for review of a Federal Court decision
In Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2022] 1 MLJ 1, a case which involved an application to review an earlier decision of the Federal Court, it was held that:
“Having the benefit of the case authorities as outlined in the foregoing discussion and the reasoning applied in those cases, we considered it appropriate, both on principle and authority, that breach of natural justice, whether it be on the bias rule or the right to be heard rule, ought to be one of the matters to be included in the limited list for the court of last resort to exercise its jurisdiction to review its previous decision.”[6] (Emphasis mine)
In Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356, the Federal Court pointed out that its earlier decision in Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals [2021] 2 MLJ 822 had been quashed on review for breach of natural justice:
“Rovin Joty has however recently been quashed upon review under r 137 of the Rules of the Federal Court, on the grounds of a breach of natural justice, in that the majority judgment there addressed issues that were not in dispute between the parties, resulting in parties being precluded from addressing the court on these fundamental findings.”[7] (Emphasis mine)
5. May, in special cases/circumstances, require reasons to be given for administrative decisions
Gibbs CJ held the following in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, a decision of the High Court of Australia:
“It remains to consider whether, notwithstanding that there is no general obligation to give reasons for an administrative decision, the circumstances make this a special case in which natural justice required reasons to be given. The rules of natural justice are designed to ensure fairness in the making of a decision and it is difficult to see how the fairness of an administrative decision can be affected by what is done after the decision has been made. However, assuming that in special circumstances natural justice may require reasons to be given, the present is not such a case.’”
Gibbs CJ’s views above were cited by the Federal Court in Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors and other appeals [2023] 3 MLJ 829.[8]
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