Sabah Justices of the Peace have added the Judges Ethics Committee (JEC) Bill to their list of concerns in addition to reservations already expressed over the Judicial Appointment Commission (JAC) Bill, noting the lack of opportunities for all stakeholders to debate the bills.

Sabah Justices of the Peace Council (Majaps) secretary Lawrence Thien is of the view that the JEC Bill, like the JAC Bill, contravenes Article 161E(2)(b) of the Federal Constitution concerning the appointment of judges to the High Court in Sabah and Sarawak.

“ Similar legal consequences as the JAC Bill would arise with the JEC Bill,” said Thien.

“In fact, the earlier amendment to the Federal Constitution, making it a ground for disciplinary action where there is a breach of any provision of the Code of Ethics prescribed under Clause (3A) of Article 125 of the Federal Constitution and the incorporation of Clause (3A) itself may not have complied with the requirements under Article 161E (2)(b),” said Thien.

“The JEC Bill and Clause (3A) have bearing on the suspension and removal of a judge of the High Court of Sabah and Sarawak.

“Without the concurrence of the respective heads of state of Sabah and Sarawak, amendments to the Federal Constitution and such other legislation in which Article 161E (2)(b) is relevant, would (the amendments) be unconstitutional, null and void.”

Clause (3A) of Article 125 of the Federal Constitution deals with the writing of a Code of Ethics to be observed by all judges.

It states: “Where a judge has committed a breach of any provision of the code of ethics prescribed under Clause (3B) but the Chief Justice is of the opinion that the breach does not warrant the judge being referred to a tribunal appointed under Clause (4), the Chief Judge may refer the judge to a body constituted under federal law to deal with such breach.”

Why no constitutional amendments?

The stand taken by the Sabah JPs have struck a chord with the DAP, Upko (United Pasok Momogun KadazanDusunMurut Organisation), the SLA (Sabah Law Association) and the SAA (Sarawak Advocates Association), among others.

DAP has called for a separate committee to be established for the judiciary in Sabah and Sarawak in line with the Federal Constitution and the Malaysia Agreement of 1963.

Upko is worried that the powers of the respective heads of state have been eroded.

SLA notes that “the executive would still be in ultimate control in making judiciary appointments”, and the SAA, which has called for a meeting in Kuala Lumpur soon with the Bar Council and the SLA, queries “why the necessary constitutional amendments were not made for the passage of the said Bills”.

willy Tuaran MP Wilfred Bumburing of Upko has proposed that Article 26(1) of the JAC Bill should be amended and read as “after making the selection and after discussing with the Chief Minister of Sabah and Sarawak in accordance with Article 122B (3) of the Federal Constitution . . . “

The amendment, he added, was necessary to ensure the bill fulfills the provision in the Federal Constitution because under Article 4 of the Federal Constitution, it is clearly stated that the Federal Constitution is supreme and that it supercedes other laws.

Bumburing foresees problems arising if Sabah and Sarawak have other candidates in mind to be appointed as judge to its respective High Courts but they are not shortlisted by the JAC for recommendation to the prime minister.

“The main issue here is when the governments of Sabah and Sarawak would be consulted?” he asked.

SLA president John Sikayun sounds more hopeful than Bumburing when he warns that since the JAC Bill is not tied to an amendment, as required, of the Federal Constitution, the appointment of the judges of the High Court of Sabah and Sarawak shall therefore continue to be governed by Article 122B(3) of the Federal Constitution, where the chief ministers of Sabah and Sarawak are consulted by the prime minister.

“The true independence of the judiciary in Malaysia can only be achieved when Article 121 of the Federal Constitution in its original form as it was in 1988 is restored, that is, all judicial power is vested in the two High Courts,” said Sikayun in recalling “the dark days of the judiciary during the Mahathir administration”.

Mutual respect important

Former Sabah attorney-general, Mohd Bazain, takes the view that “in exercising constitutional power, there must be mutual respect, otherwise the whole constitutional process will be in jeopardy”.

He cites two examples: the JAC Bill is implicit in that the names suggested by the commission to the prime minister must be accepted finally for recommendation, thereby ruling out a rejection by the prime minister, as feared by many; and the Conference of Rulers have to play their role effectively and “we should not underestimate their discretionary power”.

Critics point out that Mohd Bazain contradicts himself when he believes that “the requirements for the prime minister to consult with the Chief Judge of the High Court and the chief ministers of Sabah and Sarawak remains intact” and at the same time stresses that the JAC Bill is implicit in its recommendations and ruling out any rejection by the prime minister.

taib mahmud 03 Meanwhile, Sarawak Chief Minister Abdul Taib Mahmud, who has reportedly confessed that he has yet to read the JEC Bill and the JAC Bill, but is keeping an open mind on the matter, has called on the legal profession to “express their views because there was an understanding that Sarawak should remain the way it was after it agreed to be part of Malaysia”.

The general consensus in Sabah and Sarawak, as in Peninsular Malaysia, is that ultimately it would be the public perception and that of the investors that would decide whether any real changes for the better have been brought by the two bills.

In the wake of 1988, foreign investors have put it as a condition in their agreements in Malaysia that any conflict must be resolved in a third country.