A sense of dissatisfaction is brewing among Barisan Nasional MPs over the proposed Judicial Appointments Commission (JAC). They claim that the commission has ‘betrayed' the spirit of the federal constitution.

These backbenchers did not mince their words and aired their grievances during the debate on the JAC Bill in the Dewan Rakyat today.

Their bone of contention was that the commission would bypass the consultation process with the chief ministers of Sabah and Sarawak in the appointment of the chief judge for the High Court in the two states.

The consultation is stated as a necessary process under Article

122B of the federal constitution.

The constitution also states that the governors of Sabah and Sarawak have to give their consent before the amendment to any process in relation to the appointment, removal and suspension of judges in the High Court of Sabah and Sarawak.

However, under the proposed JAC, the commission will make recommendations to the prime minister on the appointment or promotion of judges, including those sitting in the High Court of Sabah and Sarawak.

The MPs argued that bypassing the consultation with the chief ministers in the two states will run contrary to Article 161E which provides safeguards for the constitutional position of Sabah and Sarawak.

Malaysia has two High Court systems - the High Court of Malaya and the High Court of Borneo, now the High Court of Sabah and Sarawak, and both have separate jurisdictions.

'Be fair to all'

The first salvo was fired by Mojilip Bumburing @ Wilfred (BN-Tuaran) during his debate this morning when he said the federal government should honour what had been agreed upon during Independence.

"Under the Bill, it does not state that the JAC has to consult with the chief ministers of Sabah and Sarawak as provided in Article 122B.

"Article 122B already states that when the appointments concern the judges in Sabah and Sarawak, consultation has to be sought. That is the spirit of Article 122B since the formation of Malaysia and it has to be defended," said the MP.

He added that the current provisions in the JAC Bill provide no room for the consultation and the prime minister can only select the judge from among candidates recommended by the JAC.

Mojilip also pointed out that Article 161E provide a safeguard for the consultation process.

"We have to enact a law that can be accepted and is fair to all," the Tuaran MP stressed.

anifah aman At this juncture, another Sabah MP, Anifah Aman (BN-Kimanis) interjected and suggested that the chief ministers of Sabah and Sarawak be consulted before the JAC submits a candidate list to the prime minister.

Mojilip agreed, saying that amendments should be made to at least two clauses in the JAC Bill to ensure that the interests of Sabah and Sarawak are looked after.

"There will be a problem if the governments of Sabah and Sarawak have different views (on the candidates suggested by JAC) and the candidate (they preferred) is not on the list," he said.

kulasegaran M Kulasegaran (DAP-Ipoh Barat) then questioned why the BN parliamentarians were supporting the Bill when it contradicted constitutional provisions.

Replying to the opposition MP, Mojilip said: "My stand is that the overall purpose of the JAC is good but only a few sections, such as Clause 26 and 28, need to be studied and amended."

The Tuaran MP also called for judges - regardless of race and religion - to be appointed into judicial posts as part of efforts to restore judiciary independence.

The opposition has also argued in Parliament that the JAC is "unconstitutional" because its role is not clearly provided for under the constitution and its decisions can be challenged in court.

As it stands, the federal constitution only states that the prime minister must consult with the chief justice or relevant heads of the various courts in the appointment of judges. There is no mention of the prime minister consulting the JAC committee.

Calls for Bill to be reviewed

Raising the same concern, another MP from Sabah, Salleh Kalbi (BN-Silam) urged the government not to ignore the current provisions stated in the federal constitution.

"I hope we won't introduce the JAC at the expense of the current provisions that we have in this country and take into consideration what we already have," said the backbencher.

Interjecting during Salleh's debate, a fellow MP from Sabah, Makin @ Makcus Mojigoh (BN-Putatan) also called for the Bill to be reviewed to ensure that the premier consults the chief ministers of Sabah and Sarawak.

However, despite raising their concerns and calling for the Bill to be amended, the backbenchers stressed that they would eventually support the Bill in the House.

dr chua soon bui Apart from the BN members of parliament, Independent Tawau MP Chua Soon Bui, also echoed similar sentiments in her debate later.

The JAC Bill, which was tabled for second reading yesterday, is expected to be passed by the BN-dominant House later this evening.

The JAC was one of the three reform agenda promised by Abdullah before he leaves office next March - the two others being the Malaysian Anti-Corruption Commission and Special Complaints Commission.

The JAC is meant to overcome current perceptions of undue influence by the executive in judicial appointments but under its proposed structure, critics have said the commission remains under the thumb of the prime minister.

The Malaysian Bar has expressed its concern over the premier's power under the commission while the Sabah Justices of the Peace said the commission was "unconstitutional" as it conflicts with the federal constitution.

Both have argued that constitutional amendments are needed to ensure that JAC can be truly independent.

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JAC Bill wrong without constitutional amendments