Even if the inconsistent Federal Court of Malaysia were to decide that
Malaysian Agreement has no bearing on the Constitution of Malaysia,
there is the International Court, and the courts of many nations such
as UK and Spain that will uphold justice all over the world.
Sabah's safeguards retained
Published on: Wednesday, April 22, 2009
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Kota Kinabalu: The Federal Court has decided that only advocates
admitted to the High Court of Sabah and Sarawak may appear and argue
cases when the Appellate Courts sitting in Putrajaya hear appeals
originating from the two States.
Sabah Law Association (SLA) President Datuk John Sikayun, in a
statement, Tuesday, said the Federal Court's judgement had also
cleared the air as to whether advocates from their respective states
could appear in the Appellate Court at Putrajaya.
Sikayun said the Federal Court's judgement was delivered in Kuching on
April 15, 2009 after hearing submissions from various parties on March
15, this year on two issues which have been vexing the members of both
the Sabah and Sarawak Bars for a long time.
The issues were:
- Whether an advocate and solicitor from Peninsular Malaysia is
entitled to appear as advocate in an appeal to be heard in Putrajaya
arising from a matter originating from the High Court in Sarawak and
Sabah at Kuching or Kota Kinabalu and;
- Whether an advocate from Sarawak or Sabah is entitled to appear as
advocate in a appeal to be heard in Putrajaya arising from a matter
originating from the High Court in Sarawak and Sabah at Kuching or
The submissions were heard by five members of the Federal Court made
up of the Chief Justice of the Federal Court of Malaya Tan Sri Zaki
Tun Azmi, Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum,
Chief Justice of Malaya Datuk Ariffin Zakaria, President of the Court
of Appeal Datuk Sri Aluaddin Mohd Sheriff and Federal Court Judge
Datuk Zulkifli Ahmad Makinuddin.
Sikayun said the Federal Court's decision had reaffirmed the
Constitutional safeguards that were accorded to both Sabah and Sarawak
at the time of formation of Malaysia.
He said the arguments before the Federal Court involved the Malaysia
Agreement, the Malaysia Act 1963, the Inter-Governmental Committee
Report, the Cobbold Commission Report and the Federal Constitution.
"The Sabah Law Association undertook tremendous amount of research
into the history with regards to the formation of Malaysia, the
safeguards and the protection under the Malaysia Agreement and such
foundation documents that were instrumental and the basis upon which
the Malaysia Act and the Federal Constitution were formulated',
The issue arose in an appeal originating from Sarawak heard before the
Court of Appeal in Putrajaya where the appellant was represented by a
counsel from Kuala Lumpur together with the Sarawak counsel.
The respondent's counsel had raised a preliminary objection on the
right of the counsel from Kuala Lumpur to appear in the case without
first obtaining ad hoc admission under the Sarawak Advocates
Court of Appeal Judge Datuk Gopal Sri Ram had ruled that the right of
a counsel to appear in cases heard in the Appellate Courts sitting in
Putrajaya was governed by the Legal Profession Act 1976 and,
therefore, only lawyers from the Malayan Bar could appeal and argue on
cases in Putrajaya in spite of such cases originating from Sabah and
The Court of Appeal also said that the Sarawak Advocates Ordinance has
no extra territorial effect. The respondents, dissatisfied with the
decision, had appealed to the Federal Court.
On Feb. 22, this year, the Federal Court had granted the respondents'
leave to appeal and when doing so invited all interested parties to
address the Federal Court on the issue.
The Federal Court being mindful that the matter involved serious
Constitutional issues and indeed the Formation of Malaysia itself,
wanted to hear full arguments and empanelled five members Coram to
hear the matter.
The Federal Attorney-General, Sarawak Attorney-General, Sabah Attorney-
General, the Bar Council, the Sarawak Advocates Association and the
Sabah Law Association were some of the invitees by the Federal Court
as amicus curie (friends of the court) to address the court on the
Constitutional laws that govern the issues before the Federal Court.
The SLA was represented by Sikayun, Datuk Stephen Foo, Alex Decena and
Sikayun said the full written judgement will be given in the not-too-