KOTA KINABALU: Three senior members of Sabah’s legal fraternity are disappointed that the Sarawak Legislative Assembly is against the decision to move the Registry of the High Court in Sabah and Sarawak from Kuching to here.
John Sikayun, Gaanesh Nandy and Alex Decena, all past presidents of the Sabah Law Association, supported the recent stand of the Sabah Law Society that all parties should respect the decision of the Yang di-Pertuan Agong, who had acted on the advice of the prime minister, on the matter.
Sikayun said both states had a shared constitutional right to the High Court in Sabah and Sarawak, in line with recognising the equal status of Sabah and Sarawak in the Federation of Malaysia.
He added that this shared constitutional right was “never envisaged to be and definitely should not be attempted to be monopolised by any particular state”.
“It is only fair that the registry be allowed to be hosted by Sabah in Kota Kinabalu. It would be inequitable for it to remain in Kuching in view that the constitution itself allows it to be shared between Sabah and Sarawak.
“The decision that Sarawak objects to the relocation is disrespectful to Sabah and is an outright affront to the constitutional provision. It is disappointing indeed that Sarawak has decided to stonewall the decision to relocate without ever considering that Sabah has an equal right to host the registry,” Sikayun said
On Tuesday, the Sarawak assembly urged the state government to resist any move to relocate the registry to Kota Kinabalu. At the same time, it wanted the Sarawak government to undertake all efforts to protect the sanctity of the Federal Constitution.
This was after the unanimous adoption of a private member’s motion, tabled by PKR’s Batu Lintang assemblyman See Chee How, to protest any such move involving the registry.
Nandy, meanwhile, said it was “of great dismay” that the Sarawak state assembly had resorted to this move, adding that the king had already made the decision on the relocation.
He said Article 122B (1) of the Federal Constitution was very clear that location of the registry was determined by the Agong acting on the advice of the prime minister, who shall consult the chief ministers of both states and the Chief Judge of the High Court.
“In interpreting Article 122B (1) (dealing with the appointment of judges of Federal Court, Court of Appeal and High Courts), the Federal Court, in the case of Anwar Ibrahim vs Public Prosecutor (2000), had made it clear that the actual appointing authority is the prime minister and that the king could not but follow the advice of the prime minister.
“The use of the word ‘consult’ does not mean consent (as) the king is not bound by the advice, opinion or views of the conference. The decision is ultimately that of the prime minister,” he said.
Decena said consultation was not a pre-condition to reaching a decision, adding the provision in the constitution did not specify when the prime minister should consult the related parties regarding the issue at hand.
He said, unlike Articles 122B and 122C of the constitution, which denoted a sense of timing in the consultation process, Article 121(4), which is the article empowering the relocation of the registry, was silent.
“The absence of an indication as to when the prime minister is required to consult with the Sarawak chief minister under Article 121(4) is indeed telling and renders the proposition that a consultation is a necessary pre-condition to the registry’s relocating illusory. If anything, it indicates that consultation can happen at any time,” he said.
The Chief Registrar of the Federal Court Latifah Mohd Tahar had announced in a circular dated April 19 that the registry would be relocated from Kuching to Kota Kinabalu on May 1.
However, in another letter, Latifah said the relocation would not be implemented on May 1.