Why should only a private citizen sue the Barisan Nasional, Federal
Government? Why not any of the opposition parties?
Saturday March 19, 2011
Court voids amendment on appointment of JCs
KOTA KINABALU: An amendment to the Constitution to take away the power
of appoin-ting judicial commissioners (JCs) by the heads of state of
Sabah and Sarawak has been declared null and void by the High Court
Justice Datuk David Wong Dak Wah in his landmark judgment said the
1994 amendment to Article 122AB of the Constitution was invalid as it
did not have the consent of the two states.
He said the amendment affected the operation of the Constitution as it
removed the power of the appointment of JCs by the respective Yang di-
Pertua Negri of Sabah and Sara-wak.
Prior to the 1994 amendment, the appointment of JCs to the High Courts
of Sabah and Sarawak was done by the governors on the advice of the
Chief Judge of the High Court of Sabah and Sarawak.
In allowing the suit brought by retired policeman Robert Linggi
against the Federal Government, Justice Wong also declared null and
void Section 37 of the Judicial Appointments Commission Act, which
empowers the Prime Minister to amend any provision of the Act by way
of a gazette.
However, he dismissed the claim by Linggi, who is from Keningau, that
the Judicial Appointments Commission Act (except for Section 37) was
In his suit filed on March 13, 2009, Linggi, who was represented by
Datuk Lawrence Thien, had among others, sought a declaration that the
removal of the power of appointment of JCs to the High Courts of Sabah
and Sarawak by the heads of the two states was null and void.
In his 39-page written judgment delivered on March 15 and made
available on Thursday, Justice Wong said Article 161E (2) prohibits
amendments to the Federal Constitution without the consent of the
governors "if the amendment is such as to affect the operation of the
(Federal) Constitution with regard to the constitution and
jurisdiction of the High Courts of Sabah and Sarawak."
The Government was represented by Senior Federal Counsels Suzana Atan
and Narkuna-vathy Sundereson.
On the contention by the Government that Linggi had no locus standi to
bring the suit, Justice Wong ruled that "all Malaysians have a duty to
protect our constitution."