Judicial Appointment’s Commission

For the past years there were several constitutional amendments passed by Parliament which had and continue to have impact on the constitutional positions of Sabah and Sarawak without any reference being made to Article 161E of the Federal Constitution.

Now a proposal by the Federal Government to pass two major legislations concerning the appointment and status of judges in Malaysia. The proposed legislations are in relation to the setting up of Judicial Appointment Commission and the Judges’ Ethics Committee. The latter is to be followed by a revised version of the Code of Ethics intended to regulate the conduct of judges. It is to be noted that these proposed legislations are not constitutional amendments but only Acts of Parliament.

It is understood that the main task of the Judicial Appointment Commission is to make recommendation to the Prime Minister on the candidates to be appointed as judges or on the promotions of sitting judges to higher courts. The proposed Commission will therefore be a new body whose recommendation the Prime Minister must adhere to before the name of a candidate can be submitted to the Yang DiPertuan Agong for appointment as a judge.

The proposed new procedure will be a departure from the present mode. Presently a person is appointed a judge by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers. Before tendering his advice as to the appointment under Clause (1) of a judge the Prime Minister shall consult if the appointment is to one of the High Courts, the Chief Judge of that Court. (Article 122B Federal Constitution refers).

In the context of Sabah and Sarawak the proposed new mode runs contrary to the provision of Article 161E (b) of the Federal Constitution which states:

‘161E. Safeguards for constitutional position of States of Sabah and Sarawak
(2) No amendment shall be made to the Constitution without the concurrence of the Yang di-Pertua Negeri of the State of Sabah or Sarawak or each of the States of Sabah and Sarawak concerned, if the amendment is such as to affect the operation of the Constitution as regards any of the following matters:

(a)…………
(b) the constitution and jurisdiction of the High Court in Sabah and Sarawak and the appointment, removal and suspension of judges of that court;’

With the setting up of the Commission the mode in the appointment of judges for the High Court of Sabah and Sarawak is definitely affected. The proposed legislation will therefore be directly in conflict with not only Article 122B but specifically Article 161E (b) in so far as it is related to appointment of judges to the High Court of Sabah and Sarawak. No one might challenge the conflict with Article 122B. However, if it is allowed to proceed and in relation to Sabah and Sarawak, it will mean that the proposed Act is made to circumvent Article 161E. The question therefore is: Should the two States allow it to happen?

Similar legal consequence will arise if the Judges’ Ethics Committee legislation is passed. 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 requirement of Article 161E. Clause (3A) deals with the writing of a code of ethics to be observed by all judges. Indeed the proposed legislation and for that matter Clause (3A) have bearing to the suspension and removal of a judge of the High Court of Sabah and Sarawak. Without the concurrence of the respective Tuan Yang Terutama (TYT) of the two States amendments to the Federal Constitution and such other legislations in which Article 161E is relevant would be unconstitutional, null and void.

161E. Safeguards for constitutional position of States of Sabah and Sarawak

(2) No amendment shall be made to the Constitution without the concurrence of the Yang di-Pertua Negeri of the State of Sabah or Sarawak or each of the States of Sabah and Sarawak concerned, if the amendment is such as to affect the operation of the Constitution as regards any of the following matters:

(b) the constitution and jurisdiction of the High Court in Sabah and Sarawak and the appointment, removal and suspension of judges of that court;

122B. Appointment of judges of Federal Court, Court of Appeal and of High Courts
(1) The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122c) the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers.
(2) Before tendering his advice as to the appointment under Clause (1) of a judge other than the Chief Justice of the Federal Court, the Prime Minister shall consult the Chief Justice.
(3) Before tendering his advice as to the appointment under Clause (1) of the Chief Judge of a High Court, the Prime Minister shall consult the Chief Judge of each of the High Courts and, if the appointment is to the High Court in Sabah and Sarawak, the Chief Minister of each of the States of Sabah and Sarawak.
(4) Before tendering his advice as to the appointment under Clause (1) of a judge other than the Chief Justice, President or a Chief Judge, the Prime Minister shall consult, if the appointment is to the Federal Court, the Chief Justice of the Federal Court, if the appointment is to the Court of Appeal, the President of the Court of Appeal and, if the appointment is to one of the High Courts, the Chief Judge of that Court.
(5) This Article shall apply to the designation of a person to sit as judge of a High Court under Clause (2) of Article 122AA as it applies to the appointment of a judge of that court other than the Chief Judge.
(6) Notwithstanding the dates of their respective appointments as judges of the Federal Court, of the Court of Appeal or of the High Courts, the Yang di-Pertuan Agong, acting on the advice of the Prime Minister given after consulting the Chief Justice, may determine the order of precedence of the judges among themselves.

122C. Transfer of judge of one High Court to another

Article 122B shall not apply to the transfer to a High Court, otherwise than as Chief Judge, of a judge of another High Court other than the Chief Judge; and such a transfer may be made by the Yang di-Pertuan Agong, on the recommendation of the Chief Justice of the Federal Court, after consulting the Chief Judges of the two High Courts.

125. Tenure of office and remuneration of judges of Federal Court
(1) Subject to the provisions of Clauses (2) to (5), a judge of the Federal Court shall hold office until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve.
[Clause(1) amended by Act A1239]
(2) A judge of the Federal Court may at any time resign his office by writing under his hand addressed to the Yang di-Pertuan Agong but shall not be removed from office except in accordance with the following provisions of this Article.
(3) If the Prime Minister, or the Chief Justice after consulting the Prime Minister, represents to the Yang di-Pertuan Agong that a judge of the Federal Court ought to be removed on the ground of any breach of any provision of the code of ethics prescribed under Clause (3A) or on the ground of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office, the Yang di-Pertuan Agong shall appoint a tribunal in accordance with Clause (4) and refer the representation to it; and may on the recommendation of the tribunal remove the judge from office.
(3A) The Yang di-Pertuan Agong on the recommendation of the Chief Justice, the President of the Court of Appeal and the Chief Judges of the High Courts, may, after consulting the Prime Minister, prescribe in writing a code of ethics which shall be observed by every judge of the Federal Court.
(4) The said tribunal shall consist of not less than five persons who hold or have held office as judge of the Federal Court, the Court of Appeal or a High Court or, if it appears to the Yang di-Pertuan Agong expedient to make such appointment, persons who hold or have held equivalent office in any other part of the Commonwealth, and shall be presided over by the member first in the following order, namely, the Chief Justice of the Federal Court, the President and the Chief Judges according to their precedence among themselves, and other members according to the order of their appointment to an office qualifying them for membership (the older coming before the younger of two members with appointments of the same date).
(5) Pending any reference and report under Clause (3) the Yang di-Pertuan Agong may on the recommendation of the Prime Minister and, in the case of any other judge after consulting the Chief Justice, suspend a judge of the Federal Court from the exercise of his functions.
(6) Parliament shall by law provide for the remuneration of the judges of the Federal Court, and the remuneration so provided shall be charged on the Consolidated Fund.
(6a) Subject to the provisions of this Article, Parliament may by law provide for the terms of office of the judges of the Federal Court other than their remuneration.
(7) The remuneration and other terms of office (including pension rights) of a judge of the Federal Court shall not be altered to his disadvantage after his appointment.
(8) Notwithstanding Clause (1), the validity of anything done by a judge of the Federal Court shall not be questioned on the ground that he had attained the age at which he was required to retire.
(9) This Article shall apply to a judge of the Court of Appeal and to a judge of a High Court as it applies to a judge of the Federal Court, except that the Yang di-Pertuan Agong before suspending under Clause (5) a judge of the Court of Appeal or a judge of a High Court other than the President of the Court of Appeal or the Chief Judge of a High Court shall consult the President of the Court of Appeal or the Chief Judge of that High Court instead of the Chief Justice of the Federal Court.
(10) The President of the Court of Appeal and the Chief Judges of the High Courts shall be responsible to the Chief Justice of the Federal Court. Art. 125 amended by Acts 10/60, 14/62, 26/63, 59/66, A31, A566 and A885]

66. Exercise of legislative power

(1) The power of Parliament to make laws shall be exercised by Bills passed by both Houses (or, in the cases mentioned in Article 68, the House of Representatives) and, except as otherwise provided in this Article, assented to by the Yang di-Pertuan Agong.
(2) Subject to Article 67, a Bill may originate in either House.
(3) When a Bill has been passed by the House in which it originated it shall be sent to the other House; and it shall be presented to the Yang di-Pertuan Agong for his assent when it has been passed by the other House and agreement has been reached between the two Houses on any amendments made in it or when it is required to be so presented under Article 68.
(4) The Yang di-Pertuan Agong shall within thirty days after a Bill is presented to him assent to the Bill by causing the Public Seal to be affixed thereto.
(4A) If a Bill is not assented to by the Yang di-Pertuan Agong within the time specified in Clause (4), it shall become law at the expiration of the time specified in that Clause in the like manner as if he had assented thereto.
(4B) (Repealed) .
(5) A Bill shall become law on being assented to by the Yang di-Pertuan Agong or as provided in Clause (4A), but no law shall come into force until it has been published, without prejudice, however, to the power of Parliament to postpone the operation of any law or to make laws with retrospective effect.
(6) Nothing in this Article or in Article 68 shall invalidate any law
[confirming an undertaking given by the Federal Government to the effect that a Bill to which the undertaking relates shall not be presented to the Yang di-Pertuan Agong for his assent except in accordance with the undertaking.

[Art. 66 amended by Acts A566, A584 and A885]