“The state government should take the necessary executive or legislative action to remedy the situation,” said John Sikayun, the president of the SLA which functions like the Bar Council of Malaya.
The state government’s power with reference to Judicial Commissioners, according to Sikayun, is provided for under Article VIII of the Malaysia Agreement of 1963.
The starting point, Sikayun said, of the ruling by Justice David Wong Dak Wah, was the report of the Inter-Governmental Committee, 1962 (IGC) and the Malaysia Agreement of 1963.
The IGC contains the terms and conditions under which Sabah and Sarawak agreed to form Malaysia and this is reflected in Article VIII of the Malaysia Agreement.
The Article 122AB amendment, therefore, had contravened the IGC Report which “for all intent and purposes set out the rights of Sabah and Sarawak in the formation of Malaysia”.
Sikayun noted four pertinent points in the ruling – the consent of the respective Governors of Sabah and Sarawak, the Judicial Appointments Commission Act 2008 (JACA), public interest litigation and the power of the prime minister to amend any provisions of the JACA 2008.
The SLA, said Sikayun, was in agreement with Wong that the 1994 amendment to remove the power of the Sabah and Sarawak Governors to appoint Judicial Commissioners was invalid as it was done without their consent and that of the two states.
“There was no evidence before the court that the concurrence of the Sabah and Sarawak Governors was obtained,” said Sikayun. “Such consent is a necessary pre-condition under Article 161E(2)(b) of the Federal Constitution.”
Prerogative powers
The appointment of Judicial Commissioners, said Sikayun, is a matter that concerns the composition of the High Court. Any change to the make-up or structure of the High Court, the concurrence of the respective Sabah and Sarawak Governors was necessary. The aberration on concurrence aside, JACA 2008 was not unconstitutional, Sikayun conceded.
“The Act does not take away the prime minister’s prerogative powers in making judicial appointments,” said Sikayun. “However, in making his recommendations to the King on the appointment of judges to the superior courts under Article 122B, the prime minister shall consider the names of the persons selected by the Judicial Appointments Commission.”
Likewise, in the SLA’s view, the JACA 2008 does not affect the appointments of the Chief Judge or the Judges of the High Court of Sabah and Sarawak.
“The prime minister, before tendering his advice to the King on the appointment of the Chief Judge of Sabah and Sarawak, has to consult with certain personalities,” Sikayun said.
“These include the Chief Judge of each of the High Court, the Chief Minister of the states concerned, that is, Sabah and Sarawak.
“Further, in respect of the appointment of judges to the High Court, he shall consult the Chief Judge of the High Court of Sabah and Sarawak,” he added..
One loophole is that there is no provision in the JACA 2008 as to when the process of selecting suitable candidates is to occur, that is, before or after the prime minister consults with the relevant judges.
(Malaysia has two High Court systems, that is, one for Malaya (Peninsular Malaysia) and the other for Sabah and Sarawak (formerly Borneo). Both High Court systems are equal but separate)
Healthy democratic society
Sikayun said one noteworthy feature of the March 17 ruling was Section 37 of the JACA 2008 being null and void. The JACA empowers the prime minister to amend any provisions of the Act by way of a gazette.
The doctrine of separation of powers embodied in the Federal Constitution, the High Court upheld, dictates that only Parliament can make or amend laws.
Sikayun said the ruling highlighted the importance of public interest litigation as “a very useful tool in the administration of justice”.
This concept was particularly important when it comes to the human rights of those who are adversely affected by any law or decisions of the authorities but are illiterate or lack the financial resources, or do not have access to justice.
“As public interest litigation leads to a healthy democratic society, it should be encouraged and not silenced,” Sikayun said.
The ruling followed a suit brought by retired policeman Robert Linggi on March 13, 2009, against the federal government.
Before amendments to Article 122A (3) and (4) of the Federal Constitution on June 24, 1994, the appointment of Judicial Commissioners to the High Court of Sabah and Sarawak were by the respective Governors acting upon the advice of the Chief Judge of the High Court of Sabah and Sarawak.
After June 24, 1994, the power of the respective heads of state to appoint Judicial Commissioners was taken away by the Constitution (Amendment) Act 1994 which incorporated a new Article 122AB of the same constitution.
However, Article 166E(2) prohibits amendments to the Federal Constitution without the consent of the respective heads of state “if the amendment is such as to affect the operation of the Federal Constitution as regards the constitution and jurisdiction of the High Court of Sabah and Sarawak.”
By Joe Fernandez
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