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.
[1] Article 40(1) of the Federal Constitution
[2] Article 40(2) of the Federal Constitution
[3] Article 40(1) of the Federal Constitution
[4] Article 122B(1) of the Federal Constitution
[5] See for example Bala Krishnan, Dhesegaan. “Anwar: Govt considering extending Tengku Maimun’s tenure as chief justice.” 22 May 2025, https://www.malaymail.com/news/malaysia/2025/05/22/anwar-govt-considering-extending-tengku-maimuns-tenure-as-chief-justice/177759. Accessed 3 December 2025.
[6] Singh, Karpal. “I would advise Nazri to be more careful in issuing public statements which will only embarrass him and the office he holds.” 17 October 2007. https://dapmalaysia.org/english/2007/oct07/bul/bul3397.htm. Accessed 3 December 2025.
