The federal government has up to April 2 to enter its defence on objections to the recently instituted Judicial Appointments Commission (JAC) and two constitutional amendments made as far back as 1988.

Robert Linggi, who claims to be “a Malaysian citizen of Sabah origin residing in Keningau”, had filed a writ of summons against the federal government on March 13 in the Kota Kinabalu High Court because his “constitutional rights have been infringed”.

In addition to costs and other relief as the court deems fit, Linggi is seeking to nullify amendments to Article 121(1) and Article 122A(3) and (4) of the constitution, and passage of the Judicial Commission Act 2008, as these were made “in contravention of Article 161E(2)(b) of the federal constitution”.

He also claimed that Article 44 of the constitution has been contravened.

The first of the amendments removed the judicial power of the High Court in Sabah and Sarawak via Constitution (Amendment) Act 1988.

The second concerns the appointment of judicial commissioners, now contained in Article 122AB via Constitution (Amendment) Act 1994.

palace of justice 260207 04 The JAC Act, which came into force on Feb 2 this year, establishes a commission to make recommendations to the premier on candidates to be appointed as judicial commissioners or judges, and on the promotion of sitting judges.

Linggi said Article 4(1) of the constitution states: ‘This constitution is the supreme law of the federation and any law passed after Merdeka Day which is inconsistent with this constitution shall, to the extent of the inconsistency, be void’.

Article 161E(2) provides that: ‘No amendment shall be made to the constitution without the concurrence of the Yang di-Pertua Negeri of the states of Sabah and Sarawak or each of the states...concerned, if the amendment is such as to affect the operation of the constitution as regards any of the following matters...

Sub-section (b) covers the jurisdiction of the High Court in Sabah and Sarawak and the appointment, removal and suspensions of judges of that court.

Plaintiff’s claims

Linggi’s statement of claim states, among other details, that the JAC Act is unconstitutional, null and void because:

malaysia parliament parlimen - it departs from current procedure and mode in the appointment of judicial commissioners or judges as provided in Article 122AB and Article 122B; and

- in substance, it is a constitutional amendment to Article 122A and Article 122B and was passed without the required two-third majority vote in contravention of Article 159(3) of the constitution.

He also said the Act circumvents Article 161E(2)(b) and empowers the executive via the premier to modify the Act, which violates Article 44.

Furthermore, it was passed by Parliament without the concurrence of the heads of Sabah and Sarawak, again in contravention of Article 161E(2(b).