Kota Kinabalu: The 1994 amendment to the Federal Constitution that effectively removed the power of the Sabah and Sarawak Head of States to appoint Judicial Commissioners was already challenged in the High Court here back in 2011.
And the High Court, at that time, which coincidentally was presided over by current Chief Justice of Sabah and Sarawak (CJSS) Tan Sri David Wong Dak Wah, had ruled that the amendment to insert Article 122AB in the Federal Constitution on June 24, 1994 was in contravention of Article 161E(2)(b) of the Federal Constitution.
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Article 161E(2)(b) of the Federal Constitution basically states that no amendment that will affect the operation of the Constitution can be made without the concurrence of the respective Head of States of Sabah and Sarawak.
This includes the constitution and jurisdiction of the High Court in Sabah and Sarawak and the appointment, removal and suspension of judges of that court.
The matter was challenged by a Sabahan, Robert Linggi, who was represented by lawyer Datuk Lawrence Thien (pic).
However, the High Court’s decision was overruled by the Court of Appeal two years later with the reason, among others, being the plaintiff has no locus standi, said Thien.
Speaking to the Daily Express, Thien recalled that they then applied for leave at the Federal Court but was not granted and the issue remained dormant until it was raised up by Wong in his speech during the opening of the Sabah and Sarawak Legal Year 2020 in Kuching on Jan 17.
Wong had urged the relevant stakeholders to look into Article 122AB of the Federal Constitution which, he said, was passed in 1994 without the consent of the respective Sabah and Sarawak State Governments.
“This amendment took away the power of the respective TYT to appoint judicial commissioners (JCs). The rationale of this provision was to ensure that there are judges of Borneo judicial experience in the various State superior courts to deal with matters peculiar to respective states,” said Wong.
Prior to the amendment in 1994, the appointment of JCs in Sabah and Sarawak was done by the respective TYT on advice of the CJSS.
Following the insertion of Article 122AB in the Federal Constitution, appointment of JCs is now done by the Yang diPertuan Agong acting on advice of the Prime Minister and the Judicial Appointments Commission.
Thien said his client’s efforts nine years ago was vindicated with the CJSS’ call and the acknowledgement by Minister in the Prime Minister’s Department Datuk Liew Vui Keong that the Federal Government would be returning the power to Sabah and Sarawak.
“Yes, I am the lawyer in that case in 2011. In fact, I brought it up because now the Law Minister, Datuk VK Liew, was saying that he want to restore that power for Sabah and Sarawak TYTs to appoint Judicial Commissioners, so I thought a lot of people probably would not know the background facts of this issue,” he said.
Thien said in order to restore the former law before 1994, the Government would have to go back to Parliament and re-amend the Federal Constitution.
“You know, it’s not so straight forward and saying that we are going to restore it just like that.
“But, of course, I am happy to know that the Federal Government is taking this point up as one of the MA63 issues because this power given to Sabah and Sarawak TYTs were in fact part of the Inter-Governmental Committee (IGC) report.
“We are not saying you cannot amend, you can, but you must fulfil the consent requirement of this two states before.
Otherwise our right as Sabah and Sarawak will be taken away just like that.
“Of course, the Federal Government at that time, the AG chambers argued that first, Robert Linggi has no locus standi but that one of course the High Court threw it out and secondly, they argued that if I remembered correctly that those JCs are not judges, which I think is wrong because JCs have same power as High Court judges.
“And of course Tan Sri David Wong said, no it cannot be, because JCs are judicial officers, so it’s commonly also known as a judge, so he disagreed.
“This point was taken up by the Government in the Court of Appeal and I think the Court of Appeal agreed with the Government this time. That is why they reversed the appeal and also said that Robert Linggi has no locus standi.
“So this is basically what happened in that case but when I looked at it, it seems to be sort of current topic, so I thought I better let somebody so that the public can know the background,” he said.
According to him, the amendment was made possible back in 1994 since the Federal Government commanded two-third majority in the Parliament.
“It was obviously the Government who decided to Parliament and obviously Parliament accepted the amendment, and I think to be fair to Sabah and Sarawak at that time maybe those MPs or even the State Government at that time probably do not think much of this.
“They might think that Sabah can still get JCs (in spite of the amendment) but you must remember that the power has been taken away from the Sabah and Sarawak states,” he said.
Thien said the process to restore it was not that simple and although Liew said he was going to engage the A-G, the Court’s Registry to do all these things, it first must get approval from the Parliament.
He said he only wanted the public to be informed about the earlier efforts taken to get the back the TYT’s power to appoint JCs.
“It must have started somewhere,” he quipped.
