News: Court to Hear Legality of Judges' Transfer

Court to hear legality of judges’ transfer

Joseph Bingkasan

 | October 21, 2013

A lawyer here will argue that the federal government's decison to by-pass the Chief Justice of Sabah and Sarawak and transfer five local judges is prejudicial and illegal.

KOTA KINABALU: A High Court hearing here next month is expected to make clear how independent Sabah courts really are from federal interference. The hearing is in relation to the transfer of five local judges to Penang.

The High Court here will hear the application by a lawyer to stop the transfer. The court fixed Nov 22 to hear the submission by Marcel Jude Joseph for a judicial review of the transfer orders by the federal government served on two sessions court judges and three magistrates.

Counsel Joseph is arguing that the transfer of the five civil servants is prejudicial to Sabah and illegal.

He named the Penang Chief Minister Lim Guan Eng, the director of Public Services Department, Chief Justice of Malaya, session court judges Duncan Sikodol and Caroline Bee Majanil, first class magistrates Cindy Mc Juce Balitus, Korvent Whezzar Jomiji and Edward Paul as first, second, third, fourth, fifth, sixth, seventh and eighth respondents, respectively.

Joseph wants the court here to review the powers of the PSD to transfer the judges and magistrates to Sessions Court and/or Magistrates Court in the State of Penang.

He is also seeking a declaration that the decision by PSD is ultra vires and unlawful under Section 59 and Section 78 of the Subordinate Courts Act.

The two sections provide for the constitution and territorial jurisdiction of Sessions Courts and the Appointment of First Class Magistrates.

In his application, Joseph said the transfers are against the public interest of the citizens in the state of Sabah as it will cause a huge gap in the demand and supply for judicial services in Sabah.

Judicial services in Sabah, he argued, are unique and exclusive to the State in that the laws of the State are different from the laws in Sarawak and laws in Peninsular Malaysia.

As such, he said, these services requires knowledge of special and unique legal concepts such as on native customary rights and other features of law which are unique to the state, he added.

He also pointed out that the removal and transfer of the five judicial officers who have served for a considerable length of time will be detrimental and prejudice the provisions of judicial services in Sabah.

No reasons given for transfer

Last week, Sabah MP Darell Leiking called on the state government to uphold Sabah’s judicial autonomy and demand that the federal government withdraw the transfer order served on the five from the High Courts of Sabah and Sarawak, to Peninsular Malaysia.

Leiking said the reasons for the transfers were unknown but believed they would be justified by the federal authorities as an exercise in “national integration.”

“For whatever reasons though, it does not augur well with the concept of ‘Borneonisation’,  he argued pointing out that this was a condition “set out in the Inter-Governmental Report along with the 20 Points which the federal government must adhere to when Sabah and Sarawak agreed to form the Federation of Malaysia.”

Under the Borneonisation concept, federal civil service department are to be headed and filled by Sabahans in toto and not replaced with officials from Peninsular Malaysia.

“Borneonisation was also envisioned by the founders of Malaysia when they obviously created the separate High Courts of Malaya and the High Courts of Sabah and Sarawak,” Leiking said in a statement.

He asked how could the transfer take place when “administering the said High Courts of Sabah and Sarawak is the Chief Justice of Sabah and Sarawak (formerly known as the Chief Justice of Borneo).”

As such, he said, the duties of the Chief Justice of Sabah and Sarawak amongst others, are to Borneonise the judiciary.”

“Why else would we have a separate court jurisdiction?” he asked.

Leiking reminded the government of Sabah’s autonomous constitutional right to appoint judicial commissioners had been affirmed and up held by the landmark decision in Robert Linggi vs Federal Government case.

“The said case, along with the separate High Courts, only proves how autonomous we are judicially.

“I hope the Chief Minister, state cabinet ministers and the entire Sabah state government will stand up for these five experienced Sabahan judges and stop the alleged transfers and future transfers if any,” he said.

Source: click HERE

My view: 

1. I received a link to this news through Whats App today from an officer in Semenanjung. I have commented this topic in my previous posting. Click HERE.

2. However, this news is another shock and blow to (at least) myself. I could not understand why to this extent the issue is going on.

3. Transfer order is normal, at least it does not happen every single year. It is just unfortunate that this time it involves 5 local officers to be transferred to the Peninsular Malaysia. The lawyer even wrongly include PSD as a party in his application, whereby the judicial and legal services are under the purview of Suruhanjaya Perkhidmatan Kehakiman dan Perundangan or SPKP and not the PSD. PSD has no say or jurisdiction on our transfer order. The order is issued by the Chief Registrar Office after consultation with the YAA the Chief Judges of the High Court both in Malaya and Sabah & Sarawak.

4. Be that as it may, I have given my comment before the lawyer concerned filed his application to the High Court, so there is no issue of sub judice.

5. Will wait for the outcome of the case and I will give my personal view again. Till then, I rest my case. Good luck!