KOTA KINABALU: Sabah Law Society (SLS) has backed the call by Yang di-Pertuan Besar of Negeri Sembilan Tuanku Muhriz Ibni Almarhum Tuanku Munawir that the Judicial Appointments Commission (JAC) members are chosen by bar associations instead of the Prime Minister.
SLS president Roger Chin, in a statement on Wednesday (Nov 30) went a step further, reiterating their previous call for the return of the authority and rights of Sabah and Sarawak, by restoring the power of the respective governors to appoint judicial commissioners provided for in the Federal Constitution prior to 1994.
He said this in response to the opening speech made by the Negeri Sembilan Ruler who chaired the 260th Conference of Rulers earlier on Wednesday.
Tuanku Muhriz had explained that the JAC – which plays a main role in proposing the appointment of judges – has nine members, where four are top most senior judges while the other five are appointed by the Prime Minister.
To ensure the Commission is free to carry out its duties without any interests of other parties, he proposed the Prime Minister’s role of appointing members be given to other institutions such as the Bar Council, SLS, Advocates Association of Sarawak and the Parliament Committee of Selection.
“Presently, pursuant to Section 5 of the Judicial Appointments Commission Act 2009 (the Act), they are to be appointed by the Prime Minister after consulting the Bar Council of Malaysia, the Sabah Law Association, the Advocates Association of Sarawak, the Attorney General of the Federation, the Attorney General of a State legal service or any other relevant bodies.
“SLS, Advocates Association of Sarawak and Malaysian Bar Council regulate the bodies of practitioners who come into contact with the Judiciary and have an integral role in the administration of justice together with the Judiciary, and are thus best placed to provide relevant feedback on who would be suitable to be appointed to the JAC.
“SLS has said in the past and repeats the need and calls for more diversity in the constitution of the JAC and that moving forward, it can be considered that representatives from the three Bars in Malaysia of Sabah, Sarawak and Peninsula Malaysia be included on the JAC directly,” said Chin in his statement.
On the call to restore Sabah’s authority, he said the amendment to Article 122 passed in 1994, saw the introduction of new Article 122AB of the Federal Constitution that took away the power of the respective governors of both Sabah and Sarawak to appoint judicial commissioners.
“The new Article 122AB provides for the appointment of judicial commissioners for the dispatch of business in the High Court of Malaya, High Court in Sarawak and in Sabah by Agong on the advice of the Prime Minister after consultation with the Chief Justice of the Federal Court.
“There is no requirement to consult Sabah and Sarawak in the new Article 122AB.
“The amendment to Article 122 of the Federal Constitution, particularly the introduction of new Article 122AB, should only have been made after the federal government obtained the concurrence of the governors of Sabah and Sarawak.
“As Article 122AB of the Constitution was passed in 1994 without the consent of the respective state government, it had contravened Article 161E(2)(b) of the Federal Constitution.
“Article 161E(2) provides that no amendment be made to the Federal Constitution without the concurrence of the Yang Di Pertua Negeri of Sarawak and Sabah where such amendment affects the constitution and jurisdiction of the High Court in Sabah and Sarawak and the appointment, removal and suspension of judges in the court of Sarawak and Sabah,” he elaborated.
Chin said restoring this power will facilitate Bornean representation in hearing cases filed in Borneo.
Judges with Bornean judicial experience are essential in ensuring justice is delivered without fear or favour in cases involving unique Bornean local conditions and customs, he added.