KOTA KINABALU: A practicing lawyer has filed an application at the High Court here yesterday for leave for judicial review against the Chief Minister of Penang, the director of Public Services Department, Chief Judge of Malaya, two judges and three first class magistrates of Sabah for an order that the transfers of five Sabahan judicial officers serving in the State of Sabah are null and void.
Counsel Marcel Jude A/L M S Joseph named Lim Guan Eng as the first respondent, director of Public Services Department as the second respondent, Chief Judge of Malaya as third respondent, Sessions Court judges Duncan Sikodol and Caroline Bee Majanil as fourth and fifth respondents respectively and magistrates Cindy Mc Juce Balitus, Korventt Wheezar E Jomiji and Edward Paul as the sixth, seventh and eight respondents respectively.
In his ex-parte application, Marcel is seeking an order of certiorari against the order/decision of the second respondent to transfer the fourth, fifth, sixth, seventh and eighth respondents to the Sessions Courts and/or Magistrate’s Courts in the state of Penang.
He is also seeking a declaration that the purported transfers /appointments made by the second respondent are ultra vires and unlawful under Sections 59 and 78 of the Subordinate Courts Act.
Marcel is also seeking damages and any other relief deems fit by the court.
In his affidavit in support, Marcel said that under Section 59 (3) of the Subordinate Courts Act, it reads that each Sessions Court shall be presided over by a Sessions Court judge appointed by the Yang Di-Pertuan Agong on the recommendation of the Chief Judge.
Under Section 78 (b), it says that the State Authority may, on the recommendation of the Chief Judge in each case, appoint any fit and proper person to be a first class magistrate in and for the State.
Marcel further explained that the appointment of a Sessions Court judge can only be undertaken if the Chief Justice of the respective jurisdiction makes a recommendation to the Yang Di-Pertuan Agong.
He verily believes that no such recommendation was made or even if such recommendation was made by the third respondent it cannot override or supersede the earlier recommendation that was made for the appointment of the fourth and fifth respondents as Sessions Court judges by the Chief Justice of Sabah and Sarawak in the High Court of Sabah and Sarawak.
Therefore, he said that if no recommendation was made by the third respondent or even if the recommendation was made by the third respondent such a recommendation is null and void, therefore, the purported appointments or transfers of the fourth and fifth respondents as president/judges of Sessions Court in the jurisdiction of the High Court in the State of Penang are null and void.
Further, Marcel said that in regards to the magistrates, their appointments were made by the state authority under the recommendation of the Chief Judge. In this case, he said the state authority means the Chief Minister/StateCabinet/Government of the State of Sabah and the recommendation of the Chief Judge means the Chief Judge of the High Court of Sabah and Sarawak.
He further stated that he verily believes that the first respondent cannot appoint the sixth, seventh and eighth respondents on the recommendation of the third respondent since the sixth, seventh and eight respondents have already been appointed by the state authority of Sabah and on the recommendation of the Chief Justice of Sabah and Sarawak (i.e. the Chief Judge of the High Court of Sabah and Sarawak) unless the sixth, seventh and eight respondents have first resigned from their existing posts as first class magistrates in the High Court of Sabah and Sarawak.
Marcel said the appointment of the fourth to eight respondents as president/Sessions Court judges and first class magistrates in courts under the jurisdiction of the High Court in the state of Penang are null and void unless the said respondents have voluntarily resigned from their posts as Sessions Court judges or first class magistrates in the jurisdiction of the High Court in Sabah and Sarawak.
Apart from that, the transfers are against the public interest of the citizens in the state of Sabah on the grounds that there will be a huge gap in the demand and supply for judicial services in the state of Sabah, the judicial services in the state of Sabah are unique and exclusive to the state in that the laws of the state are different from the laws in the state of Sarawak and laws in the states of Peninsular Malaysia and judicial services in the state of Sabah requires knowledge of special and unique legal concept such as Native Customary Rights and other features of law which are unique to the state.
Marcel added that the removals and transfers of the five judicial officers who have served as judicial officers in the state of Sabah for a considerable length of time will be detrimental and prejudicial to the provisions of judicial services in the state of Sabah.