Kota Kinabalu: University of Malaya Professor of Law Datuk Dr Shad Saleem Faruqi questioned why unlike his predecessors, the recently retired Chief Justice of the Federal Court, Tan Sri Richard Malanjum, a Sabahan, was not made a “Tun”.
By convention, all who have held the highest office in the judiciary have been Tuns.
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He also touched on the 1976, Malaysia Constitution Amendment Act A354 which listed Sabah and Sarawak in Article 1(2) as two of the 13 states, which is seen as a status downgrade.
“It is worthy of exploration whether Amendment Act A354 (1976) to amend Article 1(2) was submitted to the Governors of Sabah and Sarawak for their consent under Article 161E,” said Prof. Dr Shad, noting that not everything has worked well in the peninsula’s relationship with the former Borneo states.
It was not until a change in the Federal Government that Malanjum was sworn in as the ninth Chief Justice on July 11 last year, to replace Tun Md Raus Sharif who was appointed by the previous regime and was asked to resign by the current new regime.
Dr Shad pointed out that Malanjum, despite being a more senior judge by more than five years in the Federal Court, was bypassed as Chief Justice by the junior Tun Md Raus Sharif who was bestowed a “Tun-ship” in office.
He explained on the issue:
“In August 2017, there was unhappiness when a vacancy arose in the post of the Chief Justice of the Federal Court. The senior most judge of the Federal Court, Malanjum, Chief Judge of Sabah and Sarawak, was bypassed and the post was offered to then Tan Sri Md Raus Sharif”.
Malanjum, a Catholic, has been a Federal Court judge since July 26, 2006. He was also the sole dissenting judge in the Lina Joy case.
In contrast Md Raus has been a judge of the Federal Court (and President of the Court of Appeal) only since Sept 12, 2011.
“Raus was later elevated to the post of Chief Justice from which post he retired on August 3, 2017. To enable him to continue as Chief Justice after the mandatory retirement age, he was appointed an Additional Judge under Article 122(1A) and, in an unprecedented move, reappointed as Chief Justice under Article 122B.”
Dr Shad was speaking at an “Article 1(2): Reimaging the New Federation of Malaysia” public forum organised by the Society for Empowerment & Economic Development of Sabah (Seeds) at a hotel, here, recently.
It was moderated by the Deputy Dean of Faculty of Social Sciences of Unimas, Dr Arnold Puyok, with with four other speakers – Pensiangan MP Arthur Joseph Kurup, Zainnal Ajamain, Upko Sec-Gen Nelson Wences Anggang and Tan Sri Pandikar Amin (previous Parliament Speaker).
Some West Malaysians’ misgivings over the appointment of Sabahan Malanjum as Chief Justice of the Federal Court reflected the systemic difficulties East Malaysians have to struggle to serve in top government positions.
Which explains why East Malaysians hold the perception that they are not being fairly treated by the Federal Government dominated by West Malaysians and their ruling parties then and now, packing the Dewan Rakyat and appointments to the Dewan Negara or Senate?
“A case in which Sabah’s grievances were unsuccessfully sought to be articulated is Fung Fon Chen @ Bernard v The Government of Malaysia and Anor (2012)”, Dr Shad said.
Prior to Malanjum’s appointment as Chief Justice of the Federal Court, the former Chief Justices were bestowed “Tun” title in office, but not Malanjum who left office, recently, declining even an official send-off by his staff on his April 12 retirement after serving only nine months.
“Malanjum had contributed positively, much more in nine months than other Chief Justices had in years,” Prof Dr Shad opined.
Malanjum introduced the use of computers in court and a concept o
f a joint and group management, where the judges holding the top four posts (Chief Justice, Court of Appeal president, Chief Judge of Malaya, and Chief Judge of Sabah and Sarawak) were given equal power and responsibility in all matters pertaining to policy and inclusion in the management of the judiciary.
He also introduced a “timesheet system” in peninsula courts, a computerised system to encourage effective management of the court’s time among judges and judiciary officers.
That system was earlier established by Malanjum in the Sabah and Sarawak courts when he was the Chief Judge of Sabah and Sarawak.
Malanjum also introduced the e-review, an online case management system without the physical presence of parties in a court case for case management.
In order to avoid any allegation and negative elements in the allocation of cases and selection of a panel of judges, Malanjum introduced the selection of the panel of Federal Court judges by balloting to hear cases in the Federal Court.
He also made changes regarding the number of judges to sit on the Federal Court panel to hear constitutional cases and public interest cases.
He introduced a mobile court to travel to the rural areas to serve the people especially bona fide Malaysians on cases of obtaining identification documents.
Prof Dr Shad also opined that “Borneonisation of the administrative services is progressing too slowly. Despite the protection of Article 153, there are complaints about poor implementation of laws, policies and promises.
“It is alleged that the protection of the special position of the natives under Article 153 is not vigorously enforced in contrast with strong affirmative action for Peninsular Malays throughout the nation.
“It is alleged that the constitutional right of the Borneo states to control immigration has been defeated by naturalisation of millions of illegal immigrants into Sabah.”
According to 2018 records, almost a quarter of the population in Sabah was made up of immigrants and only 30 per cent of them had valid entry documents. The rest were classified as illegal immigrants as reported in the Daily Express on April 14, 2019,” he said.
Only Daily Express news reports were cited, quoted or displayed as the most authoritative by the various speakers at the Forum.
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