Landmark court decision High Court rules Article 122AB of Federal Constitution null and void

by Kelimen Sawatan
KOTA KINABALU: In a landmark decision, the High Court here has declared Article 122AB of the Federal Constitution on the appointment of Judicial Commissioners by the Heads of State (TYTs) for Sabah and Sarawak, null and void.

Justice Datuk David Wong Dak Wah ruled that the 1994 amendment to the provision for the removal of the power of the TYTs for Sabah and Sarawak to appoint Judicial Commissioner was invalid as it was done without the consent of the two states.

In allowing the suit brought by retired policeman Robert Linggi against the Federal Government, David also declared Section 37 of the Judicial Appointments Commission Act (JAC), which empowers the Prime Minister to amend any provisions of the Act by way of a gazette, null and void.

He however dismissed the claim by Robert, who is from Keningau, that the Judicial Appointments Commission Act (except for section 37) was unconstitutional.

In his suit filed on March 13, 2009 Robert, who was represented by counsel Datuk Lawrence Thien, had, among others, sought declaration from the court that the removal of the power of appointment of judicial commissioners to the High Court of Sabah and Sarawak by the heads of the two States null and void.
In his 39-page written judgement delivered on March 15, David said it was not disputed that no consent was obtained from the respective Heads of State for Sabah and Sarawak.

Prior to 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 may be appointed by the respective TYTs acting on the advice of the Chief Justice (now known as Chief Judge) of the High Court of Sabah and Sarawak.

“What happened after 24th June 1994 is that the power of the respective Yang di-Pertua Negeri of Sabah and Sarawak to appoint judicial commissioners has been taken away by the Constitution (Amendment) Act 1994 (1994 Amendments) which incorporated a new Article 122AB of the same constitution,” he said.
David said that Article 161E(2) prohibits amendments to the Federal Constitution without the consent of the respective TYTs “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.

“The ’1994 Amendment’ in my mind had no doubt ‘affected the operation’ of the Federal Constitution as it had removed the power of appointment of judicial commissioners to the High Court by the Yang di-Pertua Negeri.

“Hence, when the ’1994 Amendment’ was introduced without the consent of the respective Yang di-Pertua Negeri, it contravened Article 161E (2) (b) of the Federal Constitution,” he held.

David said that the same conclusion can be reached by looking into the historical background of the Federal Constitution.

He pointed out that the starting point was the report of the Inter-Government Committee, 1962 (IGC) and the Malaysia Agreement dated July 8, 1963.

The IGC contained the terms and conditions in which Sabah and Sarawak agreed to form Malaysia and this is reflected in Article VIII of the Malaysia Agreement, said Wong, adding that the recommendation was entrenched in the repealed Article 122a(3) and (4) of the Federal Constitution.

“Hence, it can be said that the ’1994 Amendment’ had contravened the IGC Report which for all intent and purposes set out the rights of Sabah and Sarawak in the formation of Malaysia.

“These rights are protected rights and their protection lies in the consent of the respective States through the consent of the Yang di-Pertua Negeri. Thus, it can be inferred that the repealed Article 122A (3) and (4) of the Federal Constitution (which is paragraph 26 (15) of Chapter 3 of IGC) can only be repealed with the consent of the Yang di-Pertua Negeri of Sabah and Sarawak.

“Accordingly, it is my view that the ’1994 Amendment’ is invalid and therefore, null and void in so far as it concerns the removal of the power to appoint judicial commissioners by the respective Yang di-Pertua Negeri of Sabah and Sarawak,” he said.

Touching on the issue whether the enactment of the Judicial Appointments Commission Act 2009 (Act 695) is unconstitutional, null and void, David held that the Judicial Appointments Commission Act 2009 (JAC Act) came into force on Feb 2, 2009.

“Through the JAC Act 2009, a Judicial Appointments Commission (JAC) was established mainly to make recommendation to the Prime Minister on the candidates to be appointed as judicial commissioners or judges or on the promotion of sitting judges to the higher courts.

“The JAC Act, I agree with counsel for the defendant, merely provides a process in which candidates for judgeship are vetted by the JAC,” he said.

Having read the relevant provisions, David said one thing is clear and that is, all JAC do in their function is to recommend to the Prime Minister qualified candidates for judgeship and such recommendations remain as ‘recommendations’ only in that the Prime Minister’s discretion is completely untouched which is as provided in Article 122AB and 122B of the Federal Constitution.

“However, there is no provision in the JAC Act as to when this process of selecting suitable candidates is to occur. Is it before or after the consultation with the relevant judges?

“Article 122Ab and 122B of the Federal Constitution provides that ‘the Prime Minister shall consult’ the relevant judges before he advises the Yang di-Pertuan Agong for any appointment of judges.

“This duty to consult is a constitutional duty and it can only be taken away by an express amendment to the Federal Constitution, that is, by votes of two-third of members of Parliament.

“Of course there was no such constitutional amendment and hence the JAC Act must be read subjected to that constitutional duty to consult,” he said.

In other words, David held the recommendations of the Judicial Commission are subjected to the Prime Minister’s duty to consult the relevant Judges.

“Accordingly, Section 28 of the JAC Act 2009 should not be read as if there is no requirement for the Prime Minister of the day to consult the relevant Judges before he tenders his advice in accordance with Article 122AB and 122B of the Federal Constitution and to read otherwise would make section 28 ultra vires the Federal Constitution.

“Lastly, as for Section 37 of the JAC Act, whichever way one reads it, it gives the power of the Prime Minister to amend any provisions of the JAC Act by way of a gazette. Any amendment to the JAC Act or for that matter any legislation is an exercise of legislative power.

“The doctrine of separation of powers embodied in the Federal Constitution dictates that only the Parliament can make or amend laws. Accordingly, I am left with no option but to hold that Section 37 of the JAC null and void as it contravenes the Federal Constitution.

“This finding is now of course academic as this provision has a sunset clause of two years and then the sun has since set on 9 Feb 2011,” he added.

On the contention by Senior Federal Counsel Suzana Atan and Narkunavathy Sundereson who acted for the government that Robert had no locus standi to bring the suit, the judge ruled that “all Malaysians have a duty to protect our constitution.”

He said Robert, as a Sabahan, was genuinely concerned with the erosion of the rights of Sabah in so far as the Constitution and jurisdiction of the High Court in Sabah and Sarawak and the appointment, removal and suspension of judges of that court.

“I have no hesitation in finding that the plaintiff has the locus standi to bring this action.

“I am fully aware of the argument that this may encourage litigation but in my view when there is a challenge concerning and dismantling of the Supreme Law of the country, litigation should be encouraged,” David added.