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Monday, December 15, 2008

> Constitutional Amendments First

Sabah JPs (Justices of the Peace) have declared the proposed Judicial Appointment Commission (JAC) Bill as "unconstitutional" as it conflicts with the Federal Constitution.

"The proposed legislation runs contrary to ... Article 122B and Article 161E (2)(b) of the Federal Constitution," said Dr Lawrence Thien, secretary-general of the Sabah Justices of the Peace Council (MAJAPS).

Under Article 122B of the Federal Constitution, a person is appointed a judge by the Yang Di Pertuan Agong, acting on the advice of the prime minister, after consulting the Conference of Rulers.

Before tendering such an advice, under clause (1) the prime minister shall consult - if the appointment is to one of the high courts - the chief judge of that court.

The Sabah JPs contended that the proposed new procedure under the JAC would be a direct departure from the present mode "and in direct conflict with Article 122B of the Federal Constitution".

The main task of the JAC - which comprises a nine-member panel of top judges and eminent individuals - is to make recommendations to the prime minister on the candidates to be appointed as judges or on the promotion of sitting judges to a higher court.

"The proposed new commission will therefore be a new body whose recommendations the prime minister must adhere to before the name of a candidate can be submitted to the Yang Di Pertuan Agong for appointment as a judge," said Thien, in expressing the concerns of the legal community in Malaysian Borneo on the proposed JAC Bill before Parliament.

As it stands, the Federal Constitution only states that the prime minister must consult with the chief justice or relevant heads of the various courts in the appointment judges. There is no mention that the prime minister should consult the JAC committee.

The JAC committee however is chaired by the chief justice and other members include the Court of Appeal president, the chief judge of Malaya, the chief judge of Sabah and Sarawak and a federal court judge.

No consultation with Sabah, Sarawak governors

Thien also noted that in the context of Sabah and Sarawak, the proposed new mode runs contrary to another article in the Federal Constitution.

Article 161E (2)(b) of the Federal Constitution states:

"No amendment shall be made to the constitution without the concurrence of the Yang Di Pertua Negeri of the State of Sabah or Sarawak or each of the states of Sabah and Sarawak concerned, if the amendment is such as to affect the operation of the constitution as regards any of the following matters:

"The constitution and jurisdiction of the High Court in Sabah and Sarawak and the appointment, removal and suspension of the judges of that court."

Malaysia has two high court systems - the High Court of Malaya and the High Court of Borneo, now the High Court of Sabah and Sarawak, and both have separate jurisdictions.

Thien stressed that the JAC will affect the appointment mode of judges for the High Court of Sabah and Sarawak.

"The proposed legislation will therefore be directly in conflict not only specifically with Article 161E (2)(b) in so far as it is related to the appointment of judges to the High Court of Sabah and Sarawak but also directly in conflict with ... Article 122B of the Federal Constitution," said Thien.

"No one might challenge the conflict with Article 122B of the Federal Constitution and therefore if it (the JAC) is allowed to proceed, and in relation to Sabah and Sarawak, it will mean that the proposed Act is made to circumvent Article 161E (2)(b)."

"The issue therefore is: the two states should protect their constitutional safeguards."

JAC Bill violates Federal Constitution

Thien said that without the needed constitutional amendments, the proposed bill will violate Article 4 of the Federal Constitutional, which states: "Any law passed after Merdeka Day which is inconsistent with the Federal Constitution is unconstitutional, null and void."

In short, the objectives of the Judicial Appointment Commission Bill are an exercise in futility as no related constitutional amendments are being pursued.

Even so, warned Thien, several constitutional amendments were passed by Parliament in recent years without any reference being made, as required, to Article 161E of the Federal Constitution, and which amendments had and continue to have, an impact on the constitutional positions of Sabah and Sarawak.

Thien urged the Sabah and Sarawak state governments, legislators and the legal community in both states to fully engage in the debate on the JAC Bill pending in Parliament.

Last Wednesday, outgoing Prime Minister Abdullah Ahmad Badawi tabled the JAC Bill as part of his reform promises and the bill is expected to be debated in Parliament this week.

In a related matter, the Sabah JPs noted the gross disparity in funding for the proposed JAC and the Anti-Corruption Agency under the proposed MACC Bill.

While the new anti-corruption set-up will be an independent body with its own commission and funding, the JAC will be dependent on handouts from the federal government, and lower court judges and magistrates will still be considered civil servants - Malaysiakini.