CONSTI CASE SUMMARIES

THE GOVERNMENT OF THE STATE OF KELANTAN v THE GOVERNMENT OF

THE FEDERATION OF MALAYA AND TUNKU ABDUL RAHMAN PUTRA AL-
HAJ

On July 9, 1963 the Governments of the Federation of Malaya, United Kingdom, North
Borneo, Sarawak and Singapore signed the Malaysia Agreement whereby Singapore,
Sarawak and North Borneo would federate with the existing States of the Federation of
Malaya (including Kelantan) and whereafter the Federation would be called "Malaysia".
The Federal Parliament then passed the Malaysia Act (the bill form of which had been
annexed to the Malaysia Agreement) to amend the Federation of Malaya Constitution,
1957, Article 1(1) and (2) to provide, inter alia, for the admission of the three new
States and for the alteration of the name of the Federation to that of "Malaysia". The Act
received the Royal Assent on August, 26 and was to come into operation on September
16.

On September 10 the Government of the State of Kelantan commenced proceedings for

declarations that the Malaysia Agreement and the Malaysia Act were null and void or
alternatively were not binding on the State. It was argued for the State of Kelantan that
the Malaysia Act would abolish the "Federation of Malaya" thereby violating the
Federation of Malaya Agreement, 1957; that the proposed changes needed the consent
of each of the constituent States, including Kelantan, and this had not been obtained;
that the Ruler of Kelantan should have been a party to the Malaysia Agreement; that
constitutional convention called for consultation with Rulers of individual States as to
substantial changes to be made to the Constitution; and that the Federal Parliament had
no power to legislate for Kelantan in respect of any matter regarding which that State
had its own legislature.

On September 11, the plaintiff Government gave notice of motion that pending the
ultimate disposal of their suit, the Court should by order restrain the defendants from
carrying into effect any of the provisions of the Malaysia Act. The question then for
decision was whether on the facts before the Court there was a probability that the
plaintiff Government was entilled to the relief they sought.

Held:
· (1) Parliament in enacting the Malaysia Act so as to amend inter alia Article 1(1)
and (2) acted within the powers granted to it by Article 159 of the Constitution.
The Constitution which formed an integral part of the Federation of Malaya
Agreement, 1957, (to which Kelantan was a party) did not require consultation
with any State as a condition to be fulfilled;

· (2) the Malaysia Agreement was signed for the "Federation of Malaya" by the
Prime Minister, Deputy Prime Minister and four members of the Cabinet. This was
in compliance with Articles 39 and 80(1) of the Constitution and there is nothing
whatsoever in the constitution requiring consultation with any State Government
or the Ruler of any State.
 · Quaere: whether in proceedings against the Government, the Court has
jurisdiction to make an interim injunction or an interim declaration or any other
interim order.

PHANG CHIN HOCK v PUBLIC PROSECUTOR

The appellant had been convicted of the offence of unlawful possession of ammunition
and sentenced to death. He was tried in accordance with the Essential (Security Cases)
Regulations, 1975, which were held to be invalid in Teh Cheng PohvPublic
Prosecutor [1979] 1 MLJ 50 but were subsequently validated by the Emergency
(Essential Powers) Act, 1979. In the appeal by the appellant it was argued that (a) any
Act of Parliament which amends the Constitution, as is allowed by Article 159 of the
Constitution, is valid only if consistent with the Constitution and that any provision in it
which is so inconsistent, is to the extent of the inconsistency, void; (b) even if the
amendments made by Parliament in accordance with article 159 may be inconsistent
with the existing provisions of the Constitution, the court should read into the
Constitution implied limitations on the power of Parliament to destroy the basic structure
of the Constitution; (c) even if the Emergency (Essential Powers) Act, 1979 is valid,
sections 2(4), 9(3) and 12 thereof are void as they destroy the basic structure of the
Constitution.

Held:
· (1) Parliament have power to make constitutional amendments that are
inconsistent with the Constitution. In construing Article 4(1) and Article 159 the
rule of harmonious construction requires the court to give effect to both
provisions;

· (2) Parliament may amend the Constitution in any way they think fit, provided
that they comply with all the conditions precedent and subsequent regarding
manner and form prescribed by the Constitution itself;

· (3) it is unnecessary in this case to decide whether or not Parliament's power of

constitutional amendment extends to destroying the basic structure of the
Constitution;

· (4) the Emergency (Essential Powers) Act, 1979, is constitutional. Whatever may

be the features of the basic structure of the Constitution, none of the
constitutional amendments complained of and none of the impugned provisions of
the Act have destroyed the basic structure of the Constitution.

LOH KOOI CHOON v GOVERNMENT OF MALAYSIA

FC KUALA LUMPUR
ALI, RAJA AZLAN SHAH AND WAN SULEIMAN FJJ
FEDERAL COURT CIVIL APPEAL NO 157 OF 1975
In this case the appellant had been arrested and detained under a warrant issued under
the provisions of the Restricted Residence Enactment. The appellant had not been
produced before a Magistrate within twenty-four hours of his arrest. He claimed
damages but it was held that no action could be brought against the police officer as he
was acting in compliance with a warrant issued by a competent authority. The appellant
appealed but before the appeal was heard the Federal Constitution was amended by Act
A354/76 which provided in effect that Article 5(4) of the Constitution shall not apply to
the arrest or detention of any person under the existing law relating to restricted
residence and that this amendment shall have effect from Merdeka Day. It was argued
that the amendment was unconstitutional.

Held:
· (1) 
Parliament can alter the entrenched provisions of Article 5(4) to remove the
provision relating to the production before a Magistrate of any arrested
person under the Restricted Residence Enactment as long as the process of
constitutional amendment as laid down in Article 159(3) is complied with.
When that is done it becomes an integral part of the Constitution; it is the
supreme law, and accordingly it cannot be said to be at variance with itself;
· (2) 
if Parliament retrospectively affects vested rights or pending proceedings,
then it would be the duty of an appellate court to apply the law prevailing on
the date of appeal before it. Subject to the constitutional limitation of Article
7 of the Constitution, to wit, protection against retrospective criminal laws
and repeated trials, Parliament would be within the ambit of its competence
if it deems fit to legislate retrospectively.

Sivarasa Rasiah v Badan Peguam Malaysia & Anor

FEDERAL COURT (PUTRAJAYA)

RICHARD MALANJUM CJ (SABAH AND SARAWAK), GOPAL SRI RAM AND
ZULKEFLI FCJJ

The appellant, an advocate and solicitor and a member of Parliament, wished to serve as
an elected member on the Bar Council, the governing body of the Malaysian Bar.
However, s 46A(1) of the Legal Profession Act 1976 ('the Act') disqualified amongst
others a member of Parliament from being a member of the Bar Council or a Bar
Committee. The appellant challenged the constitutionality of s 46A(1) of the Act on the
grounds that the section violated his rights of equality and equal protection as
guaranteed by art 8(1) of the Federal Constitution ('the Constitution'); that it violated his
right of association as guaranteed by art 10(1)(c) of the Constitution; and that it violated
his right to personal liberty as guaranteed by art 5(1) of the
2 MLJ 333 at 334
Constitution. The appellant's sustained submission was that the fundamental rights
guaranteed under Part II of the Constitution were part of the basic structure of the
Constitution and that Parliament could not enact laws, which included Acts amending the
Constitution, which violated that basic structure. The appellant further argued that the
inevitable effect or consequence of s 46A of the Act was to render his constitutional right
to serve on the Bar Council ineffective or illusory and that he had therefore been
deprived of his constitutionally guaranteed right to personal liberty under art 5(1) of the
Constitution.
Held, dismissing the appeal with no order as to costs:
· (1) 
The Malaysian Bar was created by statute and had from its inception been
governed by statute, namely the Act and the subsidiary legislation made
thereunder. As such, the Malaysian Bar was not an association within art
10(1)(c) of the Constitution and no complaint could be made that the
appellant's right of freedom of association had been violated. In short, art
10(1)(c) did not apply to the Malaysian Bar and no question could arise on
the issue of the right. Further, even if the Malaysian Bar was an association
and even if the appellant had the fundamental right to serve on the Bar
Council, the impugned section was not saved by the proviso contained in art
10(2)(c) of the Constitution. Under art 10(2)(c), the disqualifications that s
46A(1) of the Act imposed were reasonable restrictions because they were
justifiable on the grounds of public morality. Although morality was not
defined by Parliament, matters of discipline of the legal profession and its
regulation formed part of the public morality because absence of political
influence secured an independent Bar Council. Hence the restriction was
entirely reasonable and justifiable on the grounds of public morality and the
appellant's challenge based on art 10(1)(c) would fail (see paras 9–12).
· (2) 
When state action was challenged as violating art 5(1) of the Constitution,
art 8(1) would at once be engaged. As the state action in the present case
was legislative action in the form of s 46A(1) of the Act, the test of
constitutionality was only based on substantive fairness. This was because
the doctrine of procedural fairness did not apply to legislative action of any
sort. It is clear from the authorities that 'in accordance with law' in art 5(1)
refers to a law that is fair and just and not merely any enacted law however
unjust. Article 8(1) guarantees two separate and distinct rights, namely
equality before the law and equal protection of the law. Under s 46A(1) of
the Act advocates and solicitors were classified into those who were members
of Parliament and those who were not. This was a reasonable classification
for the purpose of
2 MLJ 333 at 335
permitting a member of the profession from having a say in the governance
of the profession while ensuring that the governance of body was not in the
hands of those with political leanings. All that the impugned section did was
to ensure that professional politicians were excluded from the governance of
the legal profession. As such, s 46A(1) was compliant with the equality
clause of art 8(1) (see paras 19–21 & 26).
· (3) 
The equal protection clause in art 8(1) houses the doctrine of proportionality.
Although s 46A(1) of the Act discriminates against those advocates and
solicitors who are either office bearers of a political party or members of
Parliament or both, a careful examination of the reasons behind the
enactment as reported in Hansard revealed that it was the intention of
Parliament to have the governing body, namely the Bar Council, free of any
political influence. It followed that the legislative measure under challenge
was proportionate to the object it sought to achieve and that s 46A(1) did
not violate art 8(1) and that it was a fair and just law within art 5(1) as well.
As such, s 46A of the Act did not violate arts 10(1)(c) or 5(1) or 8(1) of the
Constitution and was valid law (see paras 31 & 32).
 DATO MENTERI OTHMAN BIN BAGINDA & ANOR v DATO OMBI
SYED ALWI BIN SYED IDRUS
FC KUALA LUMPUR
SUFFIAN LP, RAJA AZLAN SHAH CJ (MALAYA) AG LP, SALLEH ABAS FJ, IBRAHIM
MANAN FJ & HASHIM YEOP A SANI J
FEDERAL COURT CIVIL APPEAL NO 104 OF 1980

In this case the respondent had applied for a declaration that the purported appointment
by the first appellant of the second appellant as the new Undang of Jelebu was contrary
to the adat, custom and constitution of the luak of Jelebu. The appellants after filing
their defence applied for an order that the statement of claim be struck out on the
ground that the court had no jurisdiction because the dispute involved a question of adat
and custom of the Malays in the luak and on the further ground in the case of the second
defendant that under the Constitution of Negri Sembilan he as Ruling Chief enjoyed legal
immunity in his personal capacity. The learned trial Judge dismissed the application of
the appellants, holding that the court had jurisdiction to entertain the action and that the
second defendant did not enjoy legal immunity. The appellant appealed.

Held, by a majority (Suffian L.P. dissenting):

· (1) 
the Dewan Keadilan dan Undang is given power under the Constitution to
advise on matters relating to Malay custom and as the Dewan in this case
had blessed the appointment of the second defendant as the Undang of
Jelebu, the court should not attempt to usurp the function of the Dewan,
which is a more suitable forum for discharging that function;
· (2) 
the court should decline jurisdiction on the ground that it is forum non
conveniens and that there is another body which is more appropriate and
which has been given power under the Constitution of the State to decide the
matter;

· (3) 
the respondent in this case had sent petitions to His Highness the Yang di-
Pertuan Besar and to other ruling chiefs and also to the Secretary of the
Dewan and the Dewan having sat and deliberated upon the petitions and
finally given its ruling the matter should have ended there. The respondent is
therefore estopped from raising the matter again, especially before the court
of law;
· (4) 
article 181(2) of the Federal Constitution is irrelevant in this case as the very
appointment of the second appellant is under attack. The Article does not
define a Ruler but deals rather with the consequence of one being a Ruler.

GOVERNMENT OF MALAYSIA v GOVERNMENT OF THE STATE OF

KELANTAN
FEDERAL COURT KL
BARAKBAH LP, AZMI CJ (MALAYA), ONG HOCK THYE FJ, ISMAIL KHAN &
MACINTYRE JJ
Article 111(2) of the Federal Constitution provides that a State shall not borrow except
under the authority of State law, and State law shall not authorise a State to borrow
except from the Federation or, for a period not exceeding 12 months, from a bank
approved for that purpose by the Federal Government.

Article 97(2) provides that all monies and revenues howsoever raised or received by a
State shall, subject to clause (3) and any law, be paid into the Consolidated Fund of that
State.

Article LVII of the Kelantan State Constitution provides that no monies shall
be withdrawn from the State Consolidated Fund unless they are (a) charged on such
fund or (b) authorised by a State Supply Enactment.

By an agreement made on February 20, 1964 between the Kelantan State Government
and the Timbermine Industrial Corporation Limited, it was provided by clauses 2 and 8
that the company should make prepayments of royalty for its mining and forest
concessions which should be refunded by the State in the manner set out in detail
therein.

The view of the Federal Government which was disputed by the State Government was
that (a) the prepayment of royalties constituted a borrowing in violation of article 111(2)
of the Federal Constitution and (b) that the refunding thereof would violate article 97(2)
of the Federal Constitution and article LVII of the Kelantan State Constitution. Upon the
questions in dispute being referred by His Majesty the Yang diPertuan Agong to the
Federal Court for its opinion:–

Held:
· (1) 
upon considering the agreement as a whole, rather than the impugned
clauses in isolation, there was no legal relationship of lender and borrower as
between the company and the State Government, since "borrowing
necessarily implies repayment at some time under some circumstances" and
there was no liability to repay upon forfeiture for breach of conditions
imposed on the company.

Dicta of Lord Davey in NE Railway Hastings [1900] AC 260 267, of Somervell

L.J. in Inland Revenue Commissioners v Rowntree & Co Ltd[1948] 1 All ER
482 487, and of Buckley J. in In re Southern Brazilian Rio Grande do Sul
Railway Company Ltd [1905] 2 Ch 78 83 applied.

Per Ong Hock Thye F.J.: "Since repayment of the monies advanced is not an
essential feature of the transaction the conclusion becomes inevitable that
the hallmark of a true borrowing is lacking… Indeed, such prepayments have
been a common feature of mining agreements in Malaya, together with the
forfeiture clause."

Per MacIntyre J.: "As far as I can ascertain, there is nothing in the State
Enactment to prevent the executive authority of the State to prescribe, as a
condition in a special licence, that a specified sum should be prepaid to
account of royalty. Nor could such a condition be regarded as unbusinesslike
or repugnant to public policy."

· (2) 
 the prepayment of $1,000,000 having been credited to the State
Consolidated Fund, there was no breach of article 97(2) of the Federal
Constitution, and there was no ground for supposing that further payments,
if any, would not go similarly into that Fund.

Per MacIntyre J.: "The retention of the 50% by the company is not a refund
out of the sum pre-paid and therefore the authority of a Supply Enactment is
not required to retain money never paid into the Consolidated Fund."

MAMAT BIN DAUD & ORS v GOVERNMENT OF MALAYSIA

SC KUALA LUMPUR
SALLEH ABAS LP, SEAH, MOHAMED AZMI, HASHIM YEOP A SANI &
ABDOOLCADER SCJJ

In this case, each of the petitioners was charged for an offence under section 298A of
the Penal Code for doing an act which is likely to prejudice unity among persons
professing the Islamic religion. They were alleged to have acted as an unauthorised Bilal,
Khatib and Imam at a Friday prayer in Kuala Terengganu without being so appointed
under the Terengganu Administration of Islamic Law Enactment 1955. The issue before
the court is whether the said section which was enacted by Parliament by an amending
Act in 1983 is ultra vires Article 74(1) of the Federal Constitution, since the subject
matter of the legislation is reserved for the State Legislatures and therefore beyond the
legislative competency of Parliament. Leave was obtained for the petitioners to file a suit
for declaratory orders to the effect that the new section 298A of the Penal Code is invalid
on the ground that it makes provision with respect to a matter with respect to which
Parliament has no power to make laws – see [1986] 2 MLJ 192.

It was contended by the petitioners that the law is invalid as being ultra vires the
Constitution because, having regard to the pith and substance of the section, it is a law
which ought to be passed not by Parliament but by State Legislative Assemblies, it being
a legislation on Islamic religion, according to Article 11 clause (4) and item 1 of List II,
Ninth Schedule of the Federal Constitution. The respondent on the other hand contended
that the section is valid because it is a law passed by Parliament on the basis of public
order, internal security and also criminal law according to Article 11 clause (5) and items
(3) and (4) of List I of the Ninth Schedule of the Federal Constitution.

Held, by a majority (Hashim Yeop A. Sani and Abdoolcader S.C.JJ. dissenting):

· (1) 
having considered and examined the provisions of section 298A of the Penal
Code as a whole, it is a colourable legislation in that it pretends to be a
legislation on public order, when in pith and substance it is a law on the
subject of religion with respect to which only the states have power to
legislate under Articles 74 and 77 of the Federal Constitution;
· (2) 
there must be a declaration that section 298A of the Penal Code is a law with
respect to which Parliament has no power to make law and a declaration that
section 298A of the Penal Code is invalid and therefore null and void and of
no effect;
· (3) 
the ruling shall not apply to the Federal Territories of Kuala Lumpur and
Labuan and is to take effect from the date of the order, that is October 13,
1987.
 KETUA PENGARAH JABATAN ALAM SEKITAR & ANOR v KAJING
TUBEK & ORS AND OTHER APPEALS

COURT OF APPEAL (KUALA LUMPUR)

GOPAL SRI RAMAHMAD FAIRUZ AND MOKHTAR SIDIN JJCA

All three appeals arose from a judgment of the High Court and concerned the same
subject matter. The respondents' complaint related to the Bakun Hydroelectric Project
('the project') which Ekran Bhd was in the process of constructing near Belaga in the
Kapit Division of the State of Sarawak. The whole of the affected area belonged to the
State of Sarawak, though about 10,000 natives were in occupation of it under customary
rights. The respondents were three such natives and they and their ancestors had, from
time immemorial, lived upon and cultivated the land in question. While the project would
deprive them of their livelihood and their way of life, all those affected by the project
would be resettled by the state government and their customary rights would be
extinguished in accordance with the Land Code (Sarawak Cap 81). In the High Court, the
respondents applied for declarations that the Environmental Quality (Prescribed
Activities) (Environmental Impact Assessment) (Amendment) Order 1995 ('the
Amendment Order') was invalid and that before Ekran Bhd carried out the project, it had
to comply with the Environmental Quality Act 1974 ('the EQA'). The Amendment Order
had retrospectively excluded the operation of the Environmental Quality (Prescribed
Activities) (Environmental Impact Assessment) Order 1987 ('the 1987 Order') to
Sarawak. The respondents contended that the project was governed by the EQA
1997 3 MLJ 23 at 24
and the 1987 Order. They complained that they were not given a copy of the
environment impact assessment report on the project and had been deprived of
procedural fairness in that they were not given an opportunity to make representations
in respect of the impact which the project would have upon the environment, before the
decision to implement the project was made. The High Court granted the declarations
(see [1996] 2 MLJ 388).

The Director General of Environmental Quality, the Government of Malaysia, the Natural
Resources and Environment Board of Sarawak, the Government of Sarawak and Ekran
Bhd appealed. The appellants argued that although the EQA was expressed to apply
throughout Malaysia, it did not extend to the project because the land in question
belonged to the State of Sarawak, with respect to which Parliament had no legislative
authority. In fact, Sarawak had its own environmental law in the Natural Resources
Ordinance 1949 ('the Ordinance'). Article 74 of the Federal Constitution read together
with the Ninth Schedule placed land as a legislative subject in the State List.
'Environment' was not specified as a separate legislative subject because it was a multi-
dimensional concept that was incapable of having any independent existence. The
appellants contended that since the project was in respect of land and a river that were
wholly within Sarawak, it was the Ordinance and not the EQA that applied. Since the
EQA did not apply to the project, the respondents had no vested rights in the matter of
procedural fairness and had not been deprived of such rights by the Amendment Order.
The issues to be decided in these appeals were: (a) whether the EQA applied to the
project; and (b) whether the respondents had locus standi to bring this action.

Held, allowing the appeals:

· (1) 
 (Per Gopal Sri Ram and Mokhtar Sidin JJCA) Courts should, when
determining the scope of Federal and state legislation upon a particular
subject, ensure that the enactments of each legislative power were read so
as to avoid inconsistency or repugnancy between them. While both
Parliament and the Sarawak Legislative Assembly had concurrent power to
make law regulating the production, supply and distribution of power, since
the 'environment' in question, by reason of item 2(a) of List II and item 13 of
List IIIA of Sch 9 to the Federal Constitution, lay wholly within the legislative
and constitutional province of the State of Sarawak, that state had exclusive
authority to regulate, by legislation, the use of it in such manner as it
deemed fit. The EQA thus did not apply to the environment that was the
subject matter of this case and the respondents had no vested or other
interest under the EQA upon which the Amendment Order could have any
effect (see pp 38E, I and 39A, E); State of Bombay v
Narottamdas Jethabhai AIR 1951 SC 69, JC Waghmare & Ors v State of
Maharashtra AIR 1978 Bom 119, PP v Datuk Harun
1997 3 MLJ 23 at 25
bin Hj Idris & Ors [1976] 2 MLJ 116 and Commonwealth of Australia & Anor v
State of Tasmania & Ors (1983) 158 CLR 1 followed.

· (2) 
(Per Gopal Sri Ramand Mokhtar Sidin JJCA) In any event, the
respondents lacked substantive locus standi, and the relief sought should
have been denied because: (a) the respondents were, in substance,
attempting to enforce a penal sanction. This was a matter entirely reserved
by the Federal Constitution to the Attorney General of Malaysia in whom
resided the unquestionable discretion whether to institute criminal
proceedings; (b) the complaints advanced by the respondents amounted to
deprivation of their lives under art 5(1) of the Federal Constitution. Since
such deprivation was in accordance with the law, ie the Land Code (Sarawak
Cap 81), they had on the totality of the evidence suffered no injury and there
was thus no necessity for a remedy; (c) there were persons, apart from the
respondents, who were adversely affected by the project. There was no
special injury suffered by the respondents over and above the injury common
to others. The action commenced by the respondents was not representative
in character and the other affected persons were not before the court; and
(d) the judge did not take into account relevant considerations when deciding
whether to grant declaratory relief. In particular, he did not have sufficient
regard to public interest. Additionally, he did not consider the interests of
justice from the point of view of both the appellants and the respondents
(see p 47C—G); Government of Malaysia v Lim Kit Siang [1988] 2 MLJ
12 and Tan Sri Hj Othman Saat v Mohamed binIsmail[1982] 2 MLJ 177
followed.
· (3) 
(Per Mokhtar Sidin JCA) Under the Ordinance, which was the legislation
applicable in this case, there was no requirement for the respondents to be
supplied with copies of the environmental impact assessment report. As such
the respondents had no cause of action in this appeal. Even if s 34A of the
EQA applied, the respondents would only be given copies of the report if they
had asked for it. There was no accrued right that the report must be
distributed to the public without the public asking for it (see pp 55F—I, 56A—
I and 57A).
 Fathul Bari bin Mat Jahya & Anor v Majlis Agama Islam Negeri
Sembilan & Ors
FEDERAL COURT (PUTRAJAYA)
ARIFIN ZAKARIA CHIEF JUSTICE, ZULKEFLI CJ (MALAYA), ABDULL HAMID
EMBONG, SURIYADIAND HASAN LAH FCJJ

The first petitioner was arrested by enforcement officers of the Negeri Sembilan Islamic
Affairs Department for conducting a religious talk without a tauliah, an offence under s
53(1) of the Syariah Criminal Enactment (Negeri Sembilan) 1992 ('s 53(1)'). He was
charged for the offence in the Shariah subordinate court and the second petitioner was
charged with aiding and abetting him. The petitioners obtained leave to petition the
Federal Court to declare s 53(1) null and void for offending the Federal Constitution
('Constitution') and also to declare that the Shariah Court for Negeri Sembilan had no
jurisdiction to try any offence under that section. The petitioners claimed the State
Legislature had exceeded its legislative authority in enacting s 53(1) under which any
person who engaged in the teaching of the religion without a tauliah from the Tauliah
Committee, except to members of his family at his place of residence only, was guilty of
an offence punishable by a fine or jail or both. The Tauliah Committee, which comprised
of the Muftiand between three and seven other persons with appropriate experience,
knowledge and expertise, had power to grant or withdraw a tauliah for the purpose of
the teaching of the Islamic religion or any aspect thereof. Section 53(1) was enacted
pursuant to art 74(2) read together with Item 1, State List, Ninth Schedule of the
Constitution which empowered the state legislature to make laws for the creation and
punishment of 'offences against the precepts of Islam' by persons professing the
religion. The petitioners argued that neither the al-Quran nor Sunnah prescribed that
a tauliah must first be had before one could teach the Islamic religion. They said
teaching the Islamic religion without a tauliah was not an offence in Islam nor was it
against the 'precepts of Islam' but that it had been made an offence under the
administration of Islamic law so that the teaching of Islam was kept in line with the al-
Quran and the Sunnah. On that premise, they said, s 53(1) fell outside the scope of the
aforesaid provisions of the
4 MLJ 281 at 282
Constitution and was invalid. The respondents submitted that tauliah was a pre-requisite
before one could teach the Islamic religion. In coming to its decision, the Federal Court
accepted that the term 'precepts of Islam' covered the three main domains of creed or
belief ('aqidah'), law ('Shariah') and ethics or morality ('akhlak') and that those precepts
were derived from the al-Quran and the Sunnah.

Held, dismissing the petition with no order as to costs:

· (1) 
The State Legislative Assembly of Negeri Sembilan had acted within its
legislative power in enacting s 53 of the Enactment. The purpose of that
provision was clear, that is, to protect the integrity of
the aqidah (belief), shariah (law) and akhlak (morality) which constituted the
precepts of Islam. The requirement of tauliah was necessary to ensure only a
person qualified to teach the religion was allowed to do so. This was a
measure to stop the spread of deviant teachings among Muslims which was
an offence under s 52 of the Enactment (see para 24).
· (2) 
It was commonly accepted that deviant teachings were an offence against
the precepts of Islam. Therefore, there was merit in the respondents'
contention that, by necessary implication, the teaching of Islam without
a tauliah could similarly be construed an offence against the precepts of
 Islam. The term 'precepts of Islam' must be accorded a wide and liberal
meaning (see paras 20 & 24).
· (3) 
Section 53 of the Enactment was also an order or direction made by the
government and for so long as it was not contrary to the al-Quran or Sunnah
and was not an order or direction to engage in maksiat (vice), it was
obligatory upon Muslims to abide by such order or direction. Obedience to
such order or direction constituted a precept of Islam (see para 25).

· (4) 
Such order or direction was made not merely to prevent deviant teachings
but also to maintain order and prevent division in the community. No one
could suggest the requirement of tauliah was a vice. On the contrary, it was
necessary in this day and age for the authority to regulate the teachings or
preaching of the religion to control, if not eliminate, deviant teachings and
safeguard the integrity of the religion (see para 26).
· (5) 
As s 53(1) was enacted pursuant to s 2 of the Syariah Courts (Criminal
Jurisdiction) Act 1965 — a federal legislation conferring criminal jurisdiction
to the Shariah Courts in respect of offences against the precepts of Islam by
persons professing that religion — the Shariah Court of Negeri Sembilan had
the necessary jurisdiction to try an offence under that section (see para 28).

NORDIN BIN SALLEH & ANOR v DEWAN UNDANGAN NEGERI

KELANTAN & ORS
HIGH COURT (KUALA LUMPUR)
EUSOFF CHIN J

The plaintiffs were elected to the Dewan Undangan Negeri Kelantan (Kelantan State
Assembly) during general elections held on 21 October 1990 and were subsequently
sworn in as members. On 25 April 1991, the first defendant passed the Enakmen
Undang-Undang PerTubuh Kerajaan Kelantan (Bahagian Pertama)(Pindaan) 1991(Laws
of the Constitution of Kelantan (First Part)(Amendment) Enactment 1991) and
introduced a new art XXXIA(which has retrospective effect from 19 November 1990)
reading as follows:

(1)'If any member of the Legislative Assembly who is a member of a political party
resigns or is expelled from, or for any reasons whatsoever ceases to be a member of
such political party, he shall cease to be a member of the Legislative Assembly and his
seat shall become vacant.

(2)For the purpose of Clause (1) the Legislative Assembly shall determine whether a seat
has become vacant or as to when a seat becomes vacant and the determination of the
Assembly shall be final and shall not be questioned in any Court on any ground
whatsoever.'

On 3 July 1991 the first defendant passed a resolution pursuant to the impugned
legislation that the first and second plaintiffs had ceased to be members of the Dewan
Undangan Negeri Kelantan and declared the seats for the constituencies of Sungai
Pinang and Limbongan vacant. By reason of the vacancies the Election Commission of
MalaysiA(the third defendant) took steps to hold by-elections in the aforesaid
constituencies and the by-elections were held and completed on 26 August 1991. In the
by-elections, the plaintiffs stood for election as candidates for the Barisan Nasional but
lost. The plaintiffs sought an order declaring that art XXXIA of the Kelantan State
Constitution is invalid, null and void as it is ultra vires the provisions of art 10(1)(c) of
the Federal Constitution. The plaintiffs contend that the new art XXXIA of the Kelantan
State Constitution is inconsistent with the provisions of art 10(1)(c) of the Federal
Constitution and is therefore void under art 4(1) of the Federal Constitution.
1992 1 MLJ 343 at 344

Held, allowing the application:

· (1) 
Article 10(2) of the Federal Constitution authorizes only Parliament and not a
state legislative assembly to make law to impose restrictions on the
fundamental right of a citizen to form associations. The restriction may be
imposed as Parliament deems it necessary only in the interest of the security
of the Federation or any part thereof, public order, or morality. The word
'morality' means sexual morality and not political morality.
· (2) 
The test to be applied in determining whether a statute infringes a particular
fundamental right is what is the direct and inevitable consequence or effect
of the impugned statute on the fundamental right of the plaintiffs, and if the
effect of the statute on the fundamental right is direct or inevitable, then a
fortiori the effect must be presumed to have been intended by the statute.
Where, therefore, the statute directly affects the fundamental right, or its
inevitable effect on the fundamental right is such that it makes exercise of
the right ineffective or illusory, the statute must be held to be
unconstitutional, and must be struck down.
· (3) 
It is clear that art XXXIA of the Kelantan State Constitution imposes a
restriction on the exercise by the plaintiffs of their right of association
guaranteed by art 10(1)(c) of the Federal Constitution, that is, if they resign
from their political party, they would be disqualified from continuing as a
member of the state legislative assembly.
· (4) 
Prima facie, art XXXIA implies that a penalty is attracted for exercising their
fundamental right guaranteed by art 10(1)(c) of the Federal Constitution.
Therefore, the inevitable effect or consequence of art XXXIA on the
fundamental right of association of the plaintiffs is that it makes the exercise
of their right ineffective or illusory.
· (5) 
If the phrase 'for any reasons whatsoever' contained in the impugned art
XXXIA of the Kelantan State Constitution is meant to include resignation of
membership of a political party then that part of the art XXXIA is also
inconsistent with the provision of art 10(1)(c) of theFederal Constitution and
is void under art 4(1) of the Federal Constitution.
 Goverment State of Penang & Anor v Government of Malaysia &
Anor
FEDERAL COURT (PUTRAJAYA)
RAUS SHARIF PCA, SURIYADI , AHMAD MAAROP , APANDI ALI AND RAMLY ALI
FCJJ

The petitioners sought to declare void ss 10 and 15 of the Local Government Act 1976
(the LGA) for preventing state legislatures from providing for local government elections
within their states. The petitioners sought to declare that pursuant to arts 74, 76 and
113 of the Federal Constitution and the Lists in the Ninth Schedule thereto, the first
petitioner through its State Legislature had sole and exclusive jurisdiction, to the
exclusion of Parliament, to enact laws in respect of local government elections in
Penang. The petitioners wanted the Federal Court to declare that the second respondent
(the EC) was constitutionally obliged to conduct local government elections in Penang
and that it should take immediate steps to assist in the holding of such elections
pursuant, inter alia, to the Local Government Elections (Penang Island and Province
Wellesley) Enactment 2012 (Enactment 17). The second petitioner, who was a Malaysian
citizen resident in Penang, contended that local government leaders should not be
appointed by the state authority but be elected by the people and be accountable to
their electors for the manner in which they conducted their affairs of office. He said s 15
of the LGA unreasonably denied citizens of the right to elect local government leaders
when they had the right to elect Members of Parliament and State Assemblymen. Local
government elections in West Malaysia were abolished in 1973 and three years later, the
LGA provided that Members of Local Councils should be appointed by the state authority.
In 2012, the first petitioner acting pursuant to s 1(4) of the LGA issued an order (the
exemption order) exempting all local authorities in Penang from the operation of s 15 of
the LGA. Thereafter, the State Legislature passed Enactment 17, authorising the EC to
conduct local government elections in Penang. Despite several requests from the state
government, the EC failed to conduct the elections. Whilst the Federal Constitution
prescribed what laws were authorised to be passed by Parliament and by the State
Legislature respectively, and although the Federal List did not make any reference to
local government elections, art 76(4) allowed Parliament for the purpose only of
ensuring uniformity of law and policy to make laws with respect to various matters
including local government. The petitioners argued that the expression local government
in art 76(4) was different from the expression local government elections used in the
State List in the Ninth Schedule and that it was wrong for Parliament to assume it had
power to legislate on local government elections which was a matter solely within the
jurisdiction of the state. The respondents, on the other hand, contended that, as enabled
by art 76(4), s 15 of the LGA merely provided for a comprehensive and uniform piece of
legislation to regulate all local governments even though the subject matter was within
the Legislative power of the state. The respondents said the abolishment of local
government elections was a policy decision of the National Council for Local Government
(the NCLG) established under art 95A of the Federal Constitution and it was beyond the
powers of the court to make a judgment on that policy. The respondents argued that (a)
as the first petitioner had never stated that it had consulted the NCLG, as it was
mandated to do under art 95A(6), before it enacted Enactment 17, the Enactment
violated that article (b) the exemption order was ultra vires s 1(4) of the LGA as it
exceeded the intent and purport of that section (c) as Enactment 17, a state law, was
inconsistent with s 15 of the LGA, a federal law, art 75 of the Federal Constitution
declared that s 15 should prevail and rendered Enactment 17 void to the extent of the
inconsistency.

Held, dismissing the petition:

 · (1) 
Although local government elections were not expressly provided for under
art 76(4) of the Federal Constitution, the expression local government
appearing in art 76(4) was wide enough to cover local government elections.
Local government elections could not be viewed in isolation. Local
government elections related to the local government itself. And for the
purpose of ensuring uniformity of law and policy in relation to local
government, which had to include local government elections, Parliament
considered it fit to enact the 1976 Act (see para 35).
· (2) 
Marshalling the long title of the 1976 Act, the explanatory statement to the
Bill of the said Act, the AthiNahappan Report and the Hansard, the court was
convinced the true intent and purport of Parliament in legislating the 1976
Act was to unify and achieve uniformity in the different pieces of state
legislations in force at that material time. The enacting of ss 10 and 15 of the
1976 Act was for the purpose of uniformity of law and policy and Parliament
did so under powers vested upon it under art 76(4) of the Federal
Constitution. Hence, ss 10 and 15 of the 1976 Act were constitutional and
not invalid (see para 42).
· (3) 
The first petitioner could not unilaterally, and purporting to act under s 1(4)
of the 1976 Act, exempt the application of s 15 of the 1976 Act and revert to
the pre-1976 position by reviving local government elections as the issue of
suspending local government elections was a policy decision of the NCLG.
Any reversal of that policy had to come from the NCLG. The first respondents
exemption order was contrary to that policy and violated art 95A(6) and (7)
of the Federal Constitution under which it was mandatory for the first
petitioner to have consulted the NCLG before it gazetted the exemption
order. As the petition was silent as to whether such a requirement was
adhered to, the first petitioner had exceeded its jurisdiction in making the
exemption order (see paras 45 47).
· (4) 
Enactment 17, which was a state law, was ultra vires art 75 of the Federal
Constitution and was void because it was inconsistent with the federal law, ie
ss 10 and 15 of the 1976 Act (see para 50).

Public Prosecutor v Kok Wah Kuan

FEDERAL COURT (PUTRAJAYA)

AHMAD FAIRUZ CHIEF JUSTICE, ABDUL HAMID MOHAMAD PCA, ALAUDDIN CJ
(MALAYA), RICHARD MALANJUM CJ (SABAH AND SARAWAK) AND ZAKI AZMI
FCJ

The child respondent in this appeal was convicted in the High Court for murder
punishable under s 302 of the Penal Code. He was ordered to be detained during the
pleasure of the Yang di-Pertuan Agong pursuant to s 97(2) of the Child Act 2001 (Act
611) ('the Child Act'). He appealed to the Court of Appeal which upheld the conviction
but set aside the sentence imposed on him on the ground that s 97(2) of the Child Act
was unconstitutional. The gist of the Court of Appeal's judgment was that as s 97(2)
conferred power upon the Yang di-Pertuan Agong to determine sentence — such power
exercisable by the Executive by virtue of art 39 of the Federal Constitution — s 97(2) of
the Child Act contravened the doctrine of separation of powers embodied in the Federal
Constitution by consigning to the Executive judicial power vested in the courts. The
Deputy Public Prosecutor appealed to the Federal Court.

Held, by majority allowing the appeal:

· (1) 
(per Abdul Hamid Mohamad PCA, delivering majority judgment) Prior to
the amendment to art 121(1) of the Federal Constitution, there existed a
definitive declaration that the judicial power of the Federation shall be
vested in the two High Courts. The provision also then provided for the two
High Courts to have jurisdiction and powers conferred by or under federal
law. After the amendment (vide Act A704), there no longer exists a
declaration that the 'judicial power of the Federation' — as the term was
understood prior to the amendment — vests in the two High Courts. The
jurisdiction and powers of the two High Courts are now prescribed by
federal law and not dependent on the interpretation of the term 'judicial
power' as prior the amendment. To say that the amendment had no effect
did not make sense (see paras 9–11).
· (2) 
(per Abdul Hamid Mohamad PCA, delivering majority judgment)
In Public Prosecutor v Dato' Yap Peng [1987] 2 MLJ 311 (refd), s 418A of
the Criminal Procedure Code was declared unconstitutional as it was held
inconsistent with a specific provision of the Constitution — art 121(1) —
that then provided inter alia that judicial power of the Federation shall be
vested in two High Courts. The inconsistency then attracted art 4(1) of the
Constitution which declared s 418A, to the extent of the inconsistency,
void. Dato' Yap Peng's case was not decided on the ground
1 MLJ 1 at 3
that s 418A was inconsistent with the doctrine of separation of powers. In
the instant appeal, the Court of Appeal's judgment did not show which
provision of the Constitution s 97 was inconsistent with. Instead, the court
held that that section (s 97) violated the doctrine of the separation of
powers, which, in its view was an integral part of the Constitution (see
paras 12–13).
· (3) 
(per Abdul Hamid Mohamad PCA, delivering majority judgment) The
Malaysian Constitution has features of the doctrine of the separation of
powers and at the same time, contains features which do not strictly
comply with the doctrine. To what extent the doctrine applies depends on
the provisions of the Constitution. A provision of the Constitution cannot be
 struck out on the ground that it contravenes the doctrine. Similarly no
provision of the law may be struck out as unconstitutional if it is not
inconsistent with the Constitution, even though it may be inconsistent with
the doctrine. The doctrine is not a provision of the Malaysian Constitution
even though it influenced the framers of the Malaysian Constitution (see
para 17).
· (4) 
(per Abdul Hamid Mohamad PCA, delivering majority judgment) In
determining the constitutionality or otherwise of a statute under the Federal
Constitution by a court of law, it is the provision of the Constitution that
matters, not a political theory by some thinkers (see para 18); Loh Kooi
Choon v Government of Malaysia [1977] 2 MLJ 187 (folld) (FC) followed.
The extent of the powers of the courts depends on what is provided in the
Constitution. In the case of the two High Courts, the Constitution provides
that they 'shall have such jurisdiction and powers as may be conferred by
or under federal law.' Therefore, reference must be made to the federal law
to know the jurisdiction and powers of the High Courts (see para 21).
· (5) 
(per Abdul Hamid Mohamad PCA, delivering majority judgment) Federal
law provides that the sentence of death shall not be pronounced or
recorded against a person who was a child at the time of the commission of
the offence. That is the limit of judicial power of the court imposed by law.
It further provides that instead, the child shall be ordered to be detained in
a prison during the pleasure of the Yang di-Pertuan Agong or the Ruler or
the Yang di-Pertua Negeri, depending on where the offence was committed.
That is the sentencing power given by federal law to the court as provided
by the Constitution. Similarly, in some cases, federal law provides for the
death sentence, in others, imprisonment and/or fine, some are mandatory
and some are discretionary. The Legislature provides the sentences and the
court imposes it where appropriate (see para 22).
· (6) 
(per Abdul Hamid Mohamad PCA, delivering majority judgment) The
doctrine of separation of powers is not definite and absolute.
1 MLJ 1 at 4
The extent of its application varies from country to country, depending on
how much it is accepted and in what manner it is provided for by the
Constitution of a country. Similarly, judgments from other jurisdictions,
while they are useful comparisons, should not be treated as if they are
binding on the Malaysian courts (see para 27).
· (7) 
(per Abdul Hamid Mohamad PCA, observation/obiter) The Prison Act
empowers the Director General of Prisons to cancel and restore the
remission of sentences upon a prisoner, which may be argued to amount to
meddling with the fixed term of imprisonment passed by the court.
Following the argument of the Court of Appeal, this should be
unconstitutional too (see para 25).
· (8) 
(per Abdul Hamid Mohamad PCA, observation/obiter) It is common for a
statute to empower a Minister — a member of the Executive — to make
rules or regulations — which are within the realm of the Legislature. Yet,
there appears to be no provision in the Constitution empowering the
Legislature to enact laws to give the power to make such by-laws to the
 Executive. Therefore, are the provisions in the statutes empowering
Ministers to make by-laws unconstitutional on the ground that they
contravene the doctrine of separation of powers? Applying the doctrine as a
provision of the Constitution would therefore result in absurdity (see para
26).
· (9) 
(per Richard Malanjum CJ (Sabah and Sarawak) concurring with the
majority on the issue of the constitutionality of s 97 of the Child Act 2001)
On a plain reading of sub-s (2) of s 97 it is clear that it empowers the court,
after convicting a person who was a child at the time of commission of an
offence punishable with death, to make an alternative order instead of
imposing a sentence of death. This alternative power to make such an order
as provided for by the subsection is no less than the power of the court to
impose a sentence or punishment on a child convict albeit in a different
form, namely, to the care of the Yang di-Pertuan Agong or to the Ruler or
to the Yang di-Pertua Negeri depending on where the offence was
committed (see para 33).
· (10) 
(per Richard Malanjum CJ (Sabah and Sarawak) concurring with the
majority on the issue of the constitutionality of s 97 of the Child Act 2001)
There is nothing unconstitutional in the scheme (of s 97) since it is still the
court that makes the order consequential to its conviction order. When the
court makes the order it is carrying out the process of sentencing which is
generally understood to mean a process whereby punishment in accordance
with established judicial principles is meted out by the court after a
conviction order has been made following a full trial or a guilty plea. If the
subsection left it entirely to the Yang di-Pertuan Agong or the Ruler or the
Yang di-Pertua Negeri, as the case may be to deal with a child convict after
being convicted by the court,
1 MLJ 1 at 5
there might be a different conclusion (see paras 34–35); Public Prosecutor
v Jafa bin Daud [1981] 1 MLJ 315 (refd) and Standard Chartered Bank &
Ors v Directorate of Enforcement & Ors AIR 2005 SC 2622 (refd) referred.
· (11) 
(per Richard Malanjum CJ (Sabah and Sarawak) dissenting with regard
to the view that the High Court's powers and jurisdiction are solely
prescribed by federal law) Accepting the proposition that with the
amendment to art 121(1) of the Federal Constitution the courts in Malaysia
can only function in accordance with what has been assigned to them by
federal laws, would be contrary to the democratic system of government
wherein the courts form the third branch of the government and function to
ensure that there is 'check and balance' in the system including the crucial
duty to dispense justice according to law (see para 37).
· (12) 
(per Richard Malanjum CJ (Sabah and Sarawak) dissenting with regard
to the view that the High Court's powers and jurisdiction are solely
prescribed by federal law) The amendment to art 121(1) should by no
means be read to mean that the doctrines of separation of powers and
independence of the Judiciary are now no more the basic features of the
Federal Constitution. The amendment did not cause the courts to become
servile agents of a Federal Act of Parliament and to only perform
mechanically any command or bidding of a federal law (see para 38).
 · (13) 
(per Richard Malanjum CJ (Sabah and Sarawak) dissenting with regard
to the view that the High Court's powers and jurisdiction are solely
prescribed by federal law) The courts, especially the superior courts, are a
separate and independent pillar of the Federal Constitution and not mere
agents of the federal Legislature. In the performance of their function they
perform a myriad of roles and interpret and enforce a myriad of laws.
Article 121(1) is not, and cannot be, the whole and sole repository of the
judicial role in this country for the following reasons: (i) the amendment to
art 121(1) seeks to limit the jurisdiction and powers of the High Courts and
inferior courts to whatever 'may be conferred by or under federal law'; (ii)
the courts cannot be confined to 'federal law' as their role is to be servants
of the law as a whole; (iii) it is not legally possible in a country with a
supreme Constitution and with provision for judicial review to prevent the
courts from examining constitutional questions; (iv) despite the amendment
(to art 121(1)), the common law powers of the courts are intact (see Ngan
Tuck Seng v Ngan Yin Hoi [1999] 5 MLJ 509 (refd) referred). Further, the
inherent powers of the courts are a separate and distinct source of
jurisdiction; (v) the courts cannot be prevented from interpreting the law
creatively; (vi) past or earlier statutes have to be applied to modern or
current
1 MLJ 1 at 6
circumstances; (vii) in interpreting constitutional provisions, a judge cannot
afford to be too literal. He is to be creative and not passive to enable the
constitutional provisions to be the guardian of people's rights and the
source of their freedom; (viii) the role of a judge is not just to deliver what
is already there but it is also constitutive and creative and goes far beyond
a mechanical interpretation of pre-existing law, extending to direct or
indirect law-making in the several ways mentioned in the judgment (see
para 39).

Jamaluddin bin Mohd Radzi & Ors v Sivakumar a/l Varatharaju

Naidu (claimed as Yang Dipertua Dewan Negeri Perak Darul
Ridzuan), Election Commission, intervener

FEDERAL COURT (PUTRAJAYA)

ALAUDDIN PCA, ARIFIN ZAKARIA CJ (MALAYA), NIK HASHIM, AUGUSTINE
PAUL AND JAMES FOONG FCJJ

The applicants had won the Perak State seats of N59 Behrang, N14 Changkat Jering and
N31 Jelapang respectively in the 12th General Election. They later had purportedly
resigned from their political parties in the Pakatan Rakyat and the respondent Speaker
had received resignation letters pre-signed from the three applicants and had declared
their seats vacant. However, the
4 MLJ 593 at 594
Election Commission refused to hold by-elections on the ground that there was an
ambiguity as to whether the applicants had resigned voluntarily. The three applicants
then filed a suit against the respondent in the High Court at Ipoh praying for a
declaration that they were still elected representatives. They then made this application
by way of a direct reference by relying on art LXIII of the Perak Constitution ('art 63').
The question for the Federal Court to determine was whether, on a true interpretation of
art XXXVI(5) ('art 36(5)') of the Perak Constitution read together with s 12(3) of
theElections Act 1958 ('EA'), the Election Commission is the rightful entity which
establishes if there is casual vacancy of the State Legislative Assembly seat. Learned
counsel for the respondent raised a preliminary objection on the basis that the Perak
Constitution did not give authority to the Federal Court to hear the application. He
contended that the Perak Constitution, being a State law, could not be amended by the
State Enactment No 4 of 1996, which came into force on 28 March 1997 (after Merdeka
Day), to amend the words 'Supreme Court' to 'Federal Court' to give jurisdiction on the
Federal Court to hear the application. Therefore the court had to also decide whether an
application to determine the effect of any article in the Perak Constitution may be made
by way of a direct reference to the Federal Court by relying on art 63.

Held, granting order in terms with no order as to costs:

· (1) 
Article 63, being a pre-Merdeka written law, falls within the meaning of
'federal law' and therefore, an 'existing law' as defined in art 160(2)of
the Federal Constitution ('the Constitution'). Thus, it continues in force on or
after Merdeka Day subject to any amendments made by State Law. The
subsequent amendment to art 63 by the State Enactment No 4 of 1996, in
substituting the words 'Federal Court' for the words 'Supreme Court' is in
accord with art 162(1) of the Constitution which expressly allows for any
amendments to be made to the existing law by State law (see para 12).
· (2) 
Under art 121(2)(c) of the Constitution, the Federal Court shall have such
other jurisdiction as may be conferred by Federal law. Article 63 is by
definition a federal law and therefore, it is capable of conferring such
jurisdiction on the Federal Court. Thus, the Federal Court is rightly conferred
with the necessary jurisdiction by art 63 via art 121(2)(c) of
the Constitution (see paras 12 & 13).
· (3) 
On a plain reading of art 36(5) of the Perak Constitution read together with s
12(3) of the EA, it is the Election Commission that establishes the casual
vacancy and not the Speaker. The Speaker could not interfere with the
constitutional duty of the Election Commission to establish whether there is a
casual vacancy. The receipt by the Speaker of a letter
4 MLJ 593 at 595
of resignation purporting to be from an assemblyman will not cause that
assemblyman's seat to become vacant. Under art 35 of the Perak
Constitution, the Speaker's role is limited to receiving the written resignation
letter of the assemblyman and forwarding the same to the Election
Commission which will then by its own procedure determine whether a casual
vacancy has arisen or not (see para 27).
· (4) 
The declaration of the vacancies of the seats by the Speaker could not be
said to fall within the proceedings of the State Legislative Assembly as it did
not involve and form part of the proceedings in the State Legislative
Assembly. As such, the immunity from due process of the law as to the
validity of any proceedings in the Assembly as guaranteed under art 72(1) of
the Constitution did not apply in this case (see para 28).
· (5) 
 The decision of the respondent Speaker declaring the three State seats
vacant was unlawful and therefore null and void as the decision was contrary
to art 36(5) of the Perak Constitution (see para 30).

TUN DATU HAJI MUSTAPHA BIN DATU HARUN v TUN DATUK HAJI
MOHAMED ADNAN ROBERT, YANG DI-PERTUA NEGERI SABAH &
DATUK JOSEPH PAIRIN KITINGAN (NO 2)

OCJ KOTA KINABALU

TAN CHIAW THONG J

At about 5.30 a.m. on the morning of April 22, 1985, after the State elections in Sabah,
the plaintiff took the prescribed oath of office of a Chief Minister before the first
defendant. The same day the first defendant purported to revoke the appointment as
Chief Minister of the plaintiff. At about 8.00 p.m. the same day, the first defendant
appointed and swore in the second defendant as Chief Minister.

The plaintiff sued for a declaration that the first defendant's revocation of the plaintiff's
appointment as Chief Minister and the appointment of the second defendant as the Chief
Minister were ultra vires the Constitution of Sabah. The plaintiff also claimed an
injunction to restrain the second defendant from exercising the powers of the Chief
Minister.

The main issues before the Court were:

· 1. 
Whether the alleged appointment of plaintiff as Chief Minister should be an
issue to be considered by the Court?
· 2. 
Whether there was such an appointment and, if so, whether it was a valid
one? In this respect it was necessary to consider the following:
o (i) 
Which party has the evidential burden to prove that there was
or was not a valid appointment?
o (ii) 
Did plaintiff enter the Istana on the invitation of the first
defendant or was there a conspiracy to effect plaintiff's entry?
o (iii) 
Did first defendant decide to appoint plaintiff as Chief Minister
before the latter's arrival?
o (iv) 
Did the circumstances under which the plaintiff was sworn in
allow the Yang di-Pertua Negeri to make his judgment quietly,
independently and in a dignified manner as intended by the
Constitution?
o (v) 
Was there duress in securing the appointment of the plaintiff?

· 3. 
 Whether the swearing in of plaintiff by first defendant was valid in law?
· 4. 
Whether the taking of the oath is sufficient to constitute a valid and complete
appointment or whether a letter of appointment is required?
· 5. 
Is the Yang di-Pertua Negeri's discretion to appoint a Chief Minister under
Article 6(3) of the Sabah Constitution reviewable by the Courts?
· 6. 
Can nominated members be taken into account in making an appointment
under Article 6(3)?
· 7. 
Can the legal appointment of a Chief Minister be validly terminated by the
Yang di-Pertua Negeri?
· 8. 
Was the subsequent appointment of the second defendant as Chief Minister
valid in law? And was it made willingly, voluntarily and freely, without any
influence, pressure or threat from anyone?
· 9. 
Is notification in the Gazette of the appointment of the Chief Minister
conclusive evidence of the appointment?

Held:
· (1) 
the matter of the alleged appointment of plaintiff as Chief Minister was an
issue to be tried;
· (2) 
the defendants being the party to begin, the evidential burden lies upon
them to prove that there was no, or no valid, appointment;
· (3) 
on the whole of the evidence and bearing in mind the burden of proof and
on the evidence as accepted by the court, the plaintiff did not enter the
Istana on the invitation or with the permission of the 1st defendant;
· (4) 
after considering the whole of the evidence and on the evidence as
accepted by the court and bearing in mind the burden of proof, the 1st
defendant did not decide to appoint the plaintiff as Chief Minister before the
latter's arrival;
· (5) 
on the evidence as accepted by the court, the 1st defendant in swearing in
the plaintiff as Chief Minister did not exercise his judgment under the Sabah
Constitution in that –
o (a) 
he did not take into account the post-election position of PBS as
he was waiting for the official election results to be declared. In
other words, the first defendant, contrary to what he was
required to do under Article 6(1) of the Sabah Constitution, did
not take into account the actual number of elected seats won by
 PBS because he was at all material times waiting for official
results to be announced;
o (b) 
such a swearing in was made solely as a result cumulatively of
the pressure and threat operating on his mind
1986 2 MLJ 420 at 421
and when he was frightened and confused in mind and tired
physically and when he was unable to think properly;

· (6) 
in swearing in the plaintiff in the circumstances as found by the court, the
1st defendant has made no judgment under Article 6(3) of the Sabah
Constitution. Accordingly such swearing in is null, void and no legal effect;
· (7) 
on the assumption that the court is wrong in holding that the swearing in is
null, void and of no legal effect and that the taking of the oath is sufficient
to constitute an appointment, it is necessary to consider whether it was
vitiated by duress, as pleaded by the defence. On the evidence in this case,
the defendants have not succeeded in proving the defence of duress, as
pleaded by them;
· (8) 
taking all the relevant evidence into consideration, the appointment of 2nd
defendant by the 1st defendant was made willingly, voluntarily and freely,
without any influence, pressure and threat from anyone;
· (9) 
when the 2nd defendant drafted the letter of revocation of the appointment
of the plaintiff, he did so under the impression that the 1st defendant had
appointed the plaintiff as Chief Minister. 2nd defendant did not seek
confirmation from the 1st defendant nor was he told by the latter that that
was in fact so;
· (10) 
the termination of the appointment of a Chief Minister by a letter of
revocation is not valid;
· (11) 
there was sufficient cogent evidence in this case to conclude that there was
a conspiracy to effect the entry of the plaintiff to the Istana and to have
him appointed as Chief Minister and that 1st defendant was to be
persuaded to do so;
· (12) 
bearing in mind the relevant principles regarding the proper approach to
the interpretation of constitutions and the importance of the subject of the
appointment, as well as the tradition and usage pertaining to the
appointment of a Chief Minister and despite the absence of express
provision in the Sabah Constitution, a signed and sealed instrument is
constitutionally required for the appointment as Chief Minister;
· (13) 
the taking of the oath by the plaintiff without a signed and sealed
instrument of appointment does not suffice to constitute an appointment of
 Chief Minister under Article 6(3) of the Sabah Constitution. It follows that
there has been no valid appointment of the plaintiff made thereunder;
· (14) 
the "conclusive evidence" in section 5 of the Chief Minister (Incorporation)
Ordinance, refers to the fact, together with any procedural requirements, of
the appointment as distinct from the conclusiveness of the appointment
itself so as to bar any challenge of the legality of the appointment;
· (15) 
in a case where the appointment of a Chief Minister has been validly made,
there is no power for the Head of State to either revoke such an
appointment or to dismiss the Chief Minister;
· (16) 
any constitutional convention under a wholly elected legislature is not a
convention of which the court can take judicial notice, so as to recognise its
existence as an aid for and background to the interpretation of the relevant
provisions of the Sabah Constitution.
· (17) 
the Head of State may not constitutionally take into account any nominated
member for the purpose of making his judgment in the choice of a Chief
Minister; nor can he constitutionally take any of them into consideration for
the purpose of inflating the seats of a party having a minority of elected
seats, in order to secure a majority over the party with the majority of
elected seats. If he does so, such a judgment would not be in accordance
with the requirements of Article 6(3) of the Sabah Constitution.
Semble:
· • 
where a witness has been found to be not telling the truth on certain
matters, it does not necessarily follow that that would be so in respect
of other matters which have to be independently and separately
considered;
· • 
whether evidence has been fabricated for the purpose of these
proceedings is a matter that requires a standard of proof which is that
of a criminal standard of proof beyond any reasonable doubt.

DATUK (DATU) AMIR KAHAR BIN TUN DATU HAJI MUSTAPHA v

TUN MOHD SAID BIN KERUAK YANG DI-PERTUA NEGERI SABAH &
ORS
HIGH COURT (KOTA KINABALU)
ABDUL KADIR SULAIMAN J

Following the Sabah state elections on 18 and 19 February 1994, Datuk Joseph Pairin
Kitingan ('Datuk Pairin') was appointed Chief Minister of Sabah. On the advice of Datuk
Pairin, other elected members from his party, including the plaintiff, were appointed to
form the State Cabinet on 21 February 1994. Subsequent to defections by three
members of the State Legislative Assembly ('the Assembly') from his party to the
opposition, Datuk Pairin requested the Yang di-Pertua Negeri, the first defendant, to
dissolve the Assembly but the first defendant withheld his consent. Datuk Pairin later
tendered his resignation as Chief Minister of Sabah on 17 March 1994. He, however, did
not tender the resignation of the other members of his Cabinet. On the same day, the
first defendant appointed the second defendant as the new Chief Minister to replace
Datuk Pairin. On 24 March 1994, the first defendant, on the advice of the second
defendant, appointed the third to ninth defendants as the other members of the Cabinet
of the second defendant. The plaintiff sought a declaration that since no motion of no
confidence was ever tabled in the Assembly against Datuk Pairin, his resignation was
personal to him and did not affect the appointment of the plaintiff as a Deputy Chief
Minister and Minister of Agriculture and Fisheries. The plaintiff also sought a declaration
that the first defendant had acted ultra vires the provisions of the Sabah State
Constitution ('the Constitution') by purportedly appointing the third to ninth defendants
as members of the Cabinet when at all material times the appointments
1995 1 MLJ 169 at 170
of the plaintiff and the other Cabinet members had not been revoked nor had they
resigned.

Held,dismissing the application with costs:

· (1) 
Under art 7(1) of the Constitution, if the Chief Minister ceases to command
the confidence of a majority of the members of the Assembly, then he shall
tender the resignation of the members of the Cabinet. The mere fact that
Datuk Pairin chose to tender only his resignation as the Chief Minister would
not make the other members of the Cabinet remain in office. The resignation
of Datuk Pairin was a resignation of the whole of his Cabinet including the
plaintiff and the issue of the resignation and the revocation of the
appointment of the other Cabinet members did not arise. The intention
behind the requirement in art 7(1) of the Constitution for a Chief Minister to
tender the resignation of the members of the Cabinet was to enable a new
Cabinet to be formed pursuant to art 6 of the Constitution.
· (2) 
A vote in the Assembly is not the only means to determine the confidence of
the members of the Assembly in the Chief Minister but depends on the
circumstances. Other extraneous matters may provide sufficient evidence to
establish the fact of the Chief Minister ceasing to command the confidence of
a majority of the members of the Assembly for the purposes of art 7(1) of
the Constitution.
· (3) 
The dissolution of the existing Cabinet under art 7 does not involve the Yang
di-Pertua Negeri or necessarily, the members of the Assembly. The Article
merely requires the Chief Minister to tender the resignation of the members
of his Cabinet if he ceases to command the confidence of a majority of the
members of the Assembly.
· (4) 
Under art 7(1) and through established convention, the Cabinet may also be
dissolved on account of the Chief Minister losing the confidence of a majority
of the members of the Assembly which can be evidenced by various
circumstances. The Constitution does not state that the only evidence of such
fact must be through the actual vote in the Assembly. Thus if the Chief
Minister does not tender the resignation of the other members of his Cabinet
wherein the Cabinet is to be treated as dissolved under art 7(1) of the
Constitution, their offices are deemed to have been vacated.
· (5) 
 As the Cabinet constituted on 21 February 1994 had been dissolved, the
appointment of the second defendant as the new Chief Minister by the first
defendant on 17 March 1994 was valid and constitutional, as were the
appointments of the second to the ninth defendants on 24 March 1994 under
art 6(3) of the Constitution.
1995 1 MLJ 169 at 171

Per curiam:
· (1) 
Apart from the constitutional provisions, it is a well-established convention in
Sabah that upon the death or resignation of the Chief Minister, the Cabinet
stands dissolved. The appointments of all its members are deemed to be
vacated, and if any of the members are to continue to be in the new Cabinet,
they have to be reappointed upon the advice of the new Chief Minister.
· (2) 
Article 6(1) of the Constitution cannot be read to mean that there must be a
Cabinet in existence at all times. It can only be read to mean that there must
be a Cabinet to advise the Yang di-Pertua Negeri, for the Yang di-Pertua
cannot dispense with this body if he is to exercise his constitutional functions.

Dato' Dr Zambry bin Abd Kadir v Dato' Seri Ir Hj Mohammad Nizar

bin Jamaluddin (Attorney General of Malaysia, intervener)

COURT OF APPEAL (PUTRAJAYA)

RAUS SHARIF, ZAINUN ALI AND AHMAD MAAROP JJCA
 

At the conclusion of the 12th General Election, the political alliance of Pakatan Rakyat
(comprising members of PKR, PAS and DAP) won 31 seats for the Perak State Legislative
Assembly ('PSLA'). The other 28 seats were
5 MLJ 464 at 465
won by the Barisan Nasional ('BN'). Thus, Pakatan Rakyat formed the state government
with Nizar as the Menteri Besar ('MB'). Several months later, the Speaker of the Perak
Legislative Assembly ('Speaker') claimed that the Behrang and Changkat Jering
assemblymen from PKR and Jelapang assemblywoman from DAP ('the three
assemblypersons') had by separate letters addressed to the Speaker, tendered their
resignation as members of the PSLA. The Speaker then purported to accept their
resignation and declared the respective seats vacant. However, the three
assemblypersons separately sent letters to the DYMM Sultan of Perak ('Sultan') claiming,
inter alia: (1) that they did not issue any letter of resignation and that they were still
serving as assemblypersons; (2) that they had lost their confidence in Nizar as the MB;
and (3) that they were leaving their respective political parties and were now supporting
the BN. The Election Commission refused to establish a 'casual vacancy' for the three
state seats in question. In light of these developments, Nizar had an audience with the
Sultan where he made a request to dissolve the PSLA. Meanwhile, Dato' Seri Najib in his
capacity as the Chairman of the Perak BN had an audience with the Sultan where he
presented letters of support with signatures from 28 members of BN and from the three
assemblypersons stating that they would support a BN candidate as the new MB. These
31 members also declared their support for BN in an audience before the Sultan. The
Sultan therefore rejected the request for the dissolution of the PSLA and asked Nizar to
tender the resignation of the Executive Council including himself. The Sultan then in
accordance with art XVI(2) of the Perak Constitution, appointed Zambry as the MB of
Perak. Nizar filed an application for judicial review pursuant to O 53 of the Rules of the
High Court 1980 claiming, inter alia: (1) that he continued to hold office of the MB since
no motion of confidence had been tabled against him in the PSLA; (2) that since there
was no dissolution of the PSLA, the Sultan was not entitled to declare the position of MB
vacant pursuant to art XVI(6) of the Perak State Constitution especially since his
application for dissolution was made under art XXXVI(2) which does not call for
immediate resignation of the MB and the Executive Council; (3) that he did not hold the
office of MB at the pleasure of the Sultan and therefore the Sultan could not dismiss
him; and (4) that only the PSLA could decide his fate as the MB by a vote of no
confidence. The High Court judge allowed Nizar's application for judicial review and
hence this appeal.

Held, allowing the appeal:

· (1) 
(per Raus Sharif JCA) The Sultan has absolute discretion to withhold
consent for a request for dissolution of the PSLA, irrespective of whether
the request is made under art XXXVI(2) or art XVI(6). The absolute
discretion of the Sultan is found in art XVIII(2)(b). The
5 MLJ 464 at 466
withholding of consent to a request for the resolution of Parliament or the
Legislative Assembly is a Royal Prerogative and is not justiciable (see paras
11–12).
· (2) 
(per Raus Sharif JCA) It was clear from the above uncontroverted
documentary evidence that the request for the dissolution of the PSLA must
have been made under art XVI(6). Under art XVI(6) there is no mandatory
requirement that there must be a motion of no confidence passed in the
PSLA against a MB before he ceases to command the confidence of the
majority of the members. The fact that a MB ceases to command the
confidence of the majority of the members of the PSLA can be established
by other means. It cannot be solely confined to the vote taken in the PSLA.
The circumstances clearly showed that on 5 February 2009 Nizar no longer
had the confidence of the majority of the members of the PSLA (see paras
26 & 32).
· (3) 
(per Raus Sharif JCA) Article XVI(6) requires the MB to tender the
resignation of the Executive Council and of himself if he ceases to command
the confidence of the majority of the members of the PSLA. The word 'shall'
in art XVI(6) must be interpreted as being 'mandatory' (see paras 43–44).
· (4) 
(per Raus Sharif JCA) The appointment of MB is provided for under art
XVIII(2)(a) of the Perak State Constitution. The Sultan has the right to
appoint an individual who in His Royal Highness' judgment, has the
command or support of the majority of the members of the PSLA. The BN
led by Zambry had the support of the majority of the members of the PSLA.
Hence, his appointment as the MB was in accordance with the Perak State
Constitution (see paras 48–49).
· (5) 
(per Ahmad Maarop JCA) Article XVI(6) does not provide that the MB
ceases to command the confidence of the majority of the members of the
PSLA only after a vote of no confidence have been passed in the PSLA.
Article XVI(6) does not prescribe nor limit the mode of establishing the fact
 that the MB ceases to command the confidence of the majority of the
members of the PSLA (see para 378).
· (6) 
(per Ahmad Maarop JCA) When the MB who has ceased to command the
confidence of the majority of the members of the PSLA requests the Sultan
to dissolve the PSLA and the Sultan withholds his consent, art XVI(6)
commands that the MB shall tender the resignation of the Executive Council
including himself. The refusal of the MB to tender such resignation is
unconstitutional and it is implicit that on such refusal the Executive Council
and the office of the MB is thereby vacated. When this occurs, the Sultan
must carry out his constitutional duty under art XVI(2) and appoint as new
MB, a member of the PSLA,
5 MLJ 464 at 467
who, in his judgment is likely to command the confidence of the majority of
the members of the PSLA (see para 383).
· (7) 
(per Ahmad Maarop JCA) The Sultan was right in making enquiries to
satisfy himself as to whether Nizar had in fact ceased to command the
confidence of the majority of the members of the PSLA, in considering
Nizar's request for the dissolution of the PSLA (see para 393).
· (8) 
(per Ahmad Maarop JCA) In appointing the MB, the Sultan is not subject
to recommendation, approval or consent of any other person or authority.
However, the tenure of the MB's office as provided by art XVI(7), is subject
to art XVI(6). Therefore, although the MB does not hold office at the
Sultan's pleasure, if he ceases to command the confidence of the majority
of the members of the PSLA, he and his Executive Council must resign,
unless at his request, the Sultan dissolves the PSLA (see para 409).
· (9) 
(per Zainun Ali JCA) From the surrounding facts and overwhelming
circumstances, it was established that Nizar's request to the Sultan for the
dissolution of the PSLA was made under art XVI(6) and not under art
XXXVI(2) (see para 168).
· (10) 
(per Zainun Ali JCA) When the Sultan exercised his prerogative and
discretionary powers in conducting the enquiry, it was obviously to contain
a situation which had potential threat and danger to the calm and dignity of
the state. A decision had to be made as soon as possible as to which route
the state had to take for its continued governance. The Sultan's conduct of
the enquiry was well within the ambit of art XVI(6). It was clear that the
Sultan had acted constitutionally (see paras 232 & 241).
· (11) 
(per Zainun Ali JCA) Nizar's position as MB was no longer tenable. The
media announcement made by the Palace was nothing but a mere
declaration of the legal position. The appointment of Zambry in the
circumstances, was properly within the Sultan's prerogative powers
pursuant to art XVI(2) (see para 358).

Dato' Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato' Seri Dr

Zambry bin Abdul Kadir (Attorney General, intervener)
FEDERAL COURT (PUTRAJAYA)
ALAUDDIN PCA, ARIFIN ZAKARIA CJ (Malaya), ZULKEFLI, MOHD GHAZALI AND
ABDULL HAMID EMBONG FCJJ

Following the general election held on 8 March 2008, the political alliance called Pakatan
Rakyat ('PR') won 31 seats out of the 59 seats in the State Legislative Assembly of Perak
('LA'). The remaining seats went to Barisan Nasional ('BN'). On 17 March 2008, the
appellant was appointed the Chief Minister of Perak ('the CM') by His Royal Highness the
Sultan of Perak ('HRH'). On 5 February 2009 three members of the LA declared and
2 MLJ 285 at 286
informed HRH that they no longer supported the PR and instead threw their support
behind BN. The appellant then had an audience with HRH on the same day where he was
informed that his request for dissolution of the LA was rejected by HRH. He was then
directed to tender the resignation of the executive council, as he no longer commanded
the confidence of the majority of the members of the LA. The direction was made
pursuant to art XVI(6) of the Laws of the Constitution of Perak ('the State Constitution').
The appellant maintained that the request for dissolution was made under art XXXVI(2),
while the respondent maintained that it was made under art XVI(6). The appellant did
not comply with the direction given by HRH. On 6 February 2009 HRH appointed the
respondent as the new CM, replacing the appellant. Dissatisfied with the decision of HRH,
the appellant filed an application for judicial review seeking, inter alia, the following
reliefs: (i) a declaration that the appellant was still the CM; (ii) a declaration on the
interpretation of art XVI(6); and (iii) a declaration that the respondent had no legal right
to be CM. The appellant claimed that there had been no motion of no confidence against
him in the LA and that he had not resigned from the post of CM. The High Court granted
the declaration that the appellant at all material times was the CM and the writ of quo
warranto was issued against the respondent. On appeal, the Court of Appeal reversed
the decision of the High Court. The appellant was then granted leave to appeal to the
Federal Court on the following questions: (a) whether, under art XVI(6) and in the
circumstances that: (i) the CM wishes, and has advised for the dissolution of the LA; and
(ii) there is no dissolution of the LA; and (iii) there is no motion of no confidence taken in
and adopted by the LA against the CM; and (iv) there is no resignation by the CM; the
post of the CM may be vacated; (b) whether, under art XVI(6), the determination of the
issue of confidence in the CM has to be made by members of the LA in an assembly
meeting on a vote of no confidence or by any other means as to whether the CM
commands the confidence of the majority of the members of the LA?; and (c) if the CM
refuses to tender the resignation of the executive council whether under the State
Constitution, a CM may be dismissed from office or the CM's post be deemed vacant or
vacated?

Held, dismissing the appeal:

· (1) 
A Constitution being the supreme law of a State or Federation, has to be
interpreted differently from ordinary statute. Our courts are inclined to the
organic theory in the interpretation of the Constitution. No one provision of
the Constitution is to be separated from all the others, and considered alone,
but that all the provisions bearing upon a particular subject are to be brought
into view and to be so interpreted as to effectuate the great purpose of the
instrument (see paras 24 & 26–27).
2 MLJ 285 at 287
· (2) 
 A request for dissolution under art XXXVI(2), unlike the request under art
XVI(6), if rejected by HRH, would not trigger the consequence as provided in
art XVI(6) ie the CM having to tender the resignation of the executive
council. There was ample evidence that the appellant had requested for a
dissolution of the LA on the ground that he had lost the confidence of the
majority of the members of the LA. The request was made under art XVI(6)
(see paras 31 & 37).
· (3) 
There is nothing in art XVI(6) or in any other provisions of the State
Constitution stipulating that the loss of confidence in the CM may only be
established through a vote in the LA. Evidence of loss of confidence in the CM
may be gathered from other extraneous sources provided, they are properly
established. Such sources, should include the admission by the CM himself
and/or representations made by members of the LA that the CM no longer
enjoys the support of the majority of the members of the LA. There was
evidence of such admission by the appellant himself and from the
demonstration of support by the 31 members of the LA for BN. Hence, giving
BN a clear majority in the LA. All these clearly pointed to the loss of
confidence of the majority of the members of the LA in the leadership of the
appellant as the CM (see para 48).
· (4) 
It was incumbent upon the appellant in the circumstances of this case to
tender the resignation of the executive council. The term executive council by
definition includes the CM. The appellant's refusal to resign after having been
directed to do so by HRH clearly went against the express provisions of art
XVI(6) (see para 55).
· (5) 
The first question was answered in the affirmative; as for the second
question, under art XVI(6) the question of confidence in the CM may be
determined by means other than a vote of no confidence in the LA; and as
for the third question, if the CM refuses to tender the resignation of the
executive council under art XVI(6) the CM and the executive council
members are deemed to have vacated their respective offices (see para 56).
STEPHEN KALONG NINGKAN v GOVERNMENT OF MALAYSIA

PRIVY COUNCIL
LORD MACDERMOTT, LORD HODSON, LORD UPJOHN, LORD DONOVAN AND
LORD PEARSON

This was an appeal from the decision of the Federal Court, reported in [1968] 1 MLJ 119.

On July 22, 1963 the appellant was appointed Chief Minister of Sarawak and so acted as
leader of the majority party in the Council Negri. On June 16, 1966 the Governor, acting
on representations said to have been made to him by the majority in the Council that
they had lost confidence in their Chief Minister, requested the appellant to resign. Upon
his non-compliance the Governor, on June 17, 1966, purported to
1968 2 MLJ 238 at 239
dismiss him together with other members of the Supreme Council and appointed
Penghulu Tawi Sli as Chief Minister. Action being brought in the High Court at Kuching,
Harley Ag.C.J., on September 7, 1966 declared the dismissal of the appellant void
( [1966] 2 MLJ 187). On September 14, 1966, His Majesty the Yang di-Pertuan Agong
proclaimed a state of Emergency in Sarawak. On September 19, 1966 the Federal
Parliament passed the Emergency (Federal Constitution and Constitution of Sarawak)
Act, 1966, amending clauses (5) and (6) in article 150 of the Federal Constitution by
inserting after "this Constitution" the words "or in the Constitution of the State of
Sarawak" and providing further that, notwithstanding anything in the State Constitution,
the Governor may summon the Council Negri, suspend standing orders and issue
directions binding on the Speaker. Pursuant thereto, the Governor on September 23,
1966 summoned a meeting of the Council Negri, which passed a vote of no confidence in
the appellant; he was then dismissed the following day.

In his second action in the High Court at Kuching the appellant claimed: (a) the
proclamation of a state of Emergency, being made on the advice of the Federal Cabinet,
was null and void in that it was not made bona fide but in fraudem legis, and (b) the
Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966, was on that
account null and void.

It was submitted on behalf of the appellant: (a) the proclamation of emergency

was ultra vires and invalid, and that the Emergency (Federal Constitution and
Constitution of Sarawak Act, 1936, which was founded on it, accordingly fell within it in
its entirety; (b) even if the Proclamation of Emergency was valid, sections 3, 4 and 5 of
the Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966, purported
to amend the Constitution of Sarawak in a manner which had been committed by article
41 of the Constitution of Sarawak to the Legislature of Sarawak and was therefore
beyond the powers of the Federal Parliament to enact.

Held, dismissing the appeal:

· (1) 
the onus was on the appellant to shew that the proclamation of emergency
was in fraudem legis as alleged by him or otherwise unauthorised by the
relevant legislation and in this case the appellant had failed to discharge the
onus on him;
· (2) 
article 150 of the Federal Constitution gave power to the Federal Parliament
to amend or modify the Constitution of Sarawak temporarily if Parliament
thought such a step was required by reason of the Emergency. In the
circumstances the Federal Parliament had power to enact the Emergency
(Federal Constitution and Constitution of Sarawak) Act, 1966 and therefore
the appeal must be dismissed.

MARK KODING v PUBLIC PROSECUTOR

FC KUALA LUMPUR
SUFFIAN LP, LEE HUN HOE CJ (BORNEO), ABDUL HAMID FJ, HASHIM YEOP A
SANI J & ABDOOLCADER J

In this case the accused a Member of the House of Representatives made a speech in
Parliament which was thought to be seditious and he was charged with committing an
offence contrary to section 4(1)(b) of the Sedition Act. At the end of the prosecution
case, the learned trial judge called on the accused to enter on his defence. Counsel for
the accused announced that the defence did not wish to call any witness. The learned
trial judge then referred three questions to the Federal Court as follows:

"(1) As a Member of Parliament, has the Accused's right of free speech in Parliament given (a) by sections
3 and 8 of the Houses of Parliament (Privileges and Powers) Ordinance [No. 15 of] 1952 and (b) by Article
63(2) of the 1957 Federal Constitution been validly limited by the subsequent constitutional amendment with
the addition of Clause (4) to Article 63 by Act A30?
(2) As a Member of Parliament, is the Accused's right of free speech in Parliament given by Article 63(2) of the
Constitution either (a) part of the basic structure of the Constitution or (b) a fundamental rule of natural
justice, so that any purported amendment of the Constitution seeking to limit such right is void and of no
effect?

(3) Having regard to the position of Malay language as the national language under Article 152 Clause (1) of
the Federal Constitution and questioning it would bring into operation section 3(1)(f) of the Sedition Act 1948
(Revised 1969) — can the demand for closure of Chinese and Tamil schools in the process of implementing the
national language be legally and constitutionally treated as questioning the provision of proviso (a) of Article
152(1), notwithstanding that there is no demand for the abolition or prohibition of the teaching or learning of
such languages?"

Held:
· (1) 
the accused's right of free speech in Parliament given by sections 3 and 8 of
the Houses of Parliament (Privileges and Powers) Ordinance, 1952, and by
Article 63(2) of the Federal Constitution, has been validly limited by the
amendment effected by the new Clause (4) of Article 63 added by the
Constitution (Amendment) Act, 1971;
· (2) 
it is unnecessary to decide whether or not the Constitution may be so
amended as to destroy its basic structure and, in any event, the accused's
right of free speech in Parliament given by Article 63(2) of the Constitution
does not form part of the basic structure of the Constitution;
· (3) 
the said right is not part of the fundamental rule of natural justice;
· (4) 
thus the amendments made by the Constitution (Amendment) Act, 1971
limiting an M.P.'s right of free speech in Parliament are valid;
· (5) 
the answer to the third question is bound up with the facts of the case which
were uncertain and as to which there were no findings by the learned trial
judge, and it would be premature and speculative to answer this question at
this stage;
· (6) 
the matter should be remitted to the learned trial judge for continuation and
disposal in accordance with this judgment.
Semble

It would have been better if the learned Judge had not referred the matter to the Federal
Court but instead had himself decided the constitutional questions which arose (which he
had jurisdiction to do) and decided the case one way or the other

Gobind Singh Deo v Yang Dipertua, Dewan Rakyat & Ors

HIGH COURT (KUALA LUMPUR)

MOHAMAD ARIFF YUSOF JC
The plaintiff, the Member of Parliament for Puchong stood accused of uttering
statements allegedly serious in nature, and in violation of the rights and privileges of a
Member of Parliament and in contempt of the Dewan Rakyat ('the House'). On a motion
tabled by the second defendant, the House resolved to suspend the plaintiff for 12
months and to withhold the payment of all remuneration and allowances due and
accruing to the plaintiff over the same period. The plaintiff sought declarations from the
High Court, inter alia, to the effect that the plaintiff's suspension was null and void and
of no effect, and that he was entitled to his remuneration and allowances. The primary
issue before the High Court concerned the justiciability of proceedings in the Dewan
Rakyat.

Held, allowing the plaintiff's application in part with no order as to costs:

· (1) 
The doctrine of the separation of powers is a feature of the Malaysian
Constitution. The separation of powers, in the sense of checks and balances
within the three branches of Government exists and animates the Malaysian
Constitution. Article 63(1) of the Federal Constitution('Constitution') is an
instance of the application of such doctrine (see para 10). Public Prosecutor v
Kok Wah Kuan [2008] 1 MLJ 1 (FC)(followed); Ah Thian v Government of
Malaysia [1976] 2 MLJ 112 (referred).
· (2) 
In YAB Dato' Dr Zambry bin Abd Kadir & Ors v YB Sivakumar a/l Varatharaju
Naidu (Attorney General Malaysia, intervener) [2009] 4 MLJ 24
(FC) ('Zambry's case'), the Federal Court merely recognised the overriding
power of the courts to determine whether there was any legal basis for the
Perak State Assembly to suspend a State Assemblyman in respect of an
alleged contempt committed outside the State Legislative Assembly, when
there was no provision under the Perak State Constitution, the Standing
Orders of the Legislative Assembly or the
2 MLJ 674 at 676
Perak Legislative Assembly (Privileges) Enactment 1959. In view of the
context of the case, the ratio decidendi in Zambry's case was
limited. Zambry's case ought not to be read as laying down the broadest
possible proposition that all acts of a State Legislative Assembly or the
Houses of Parliament must be open to judicial scrutiny and correction. To
extend the ratio in such a broad manner would render meaningless the
phraseology of arts 63(1) and 72(1) of the Constitution (see para 17) YAB
Dato' Dr Zambry bin Abd Kadir & Ors v YB Sivakumar a/l Varatharaju Naidu
(Attorney General Malaysia, intervener) [2009] 4 MLJ 24 (FC) (followed).
· (3) 
If the proceedings in the House have constitutional or legal support, the
proceedings must be immune from legal challenge. If such proceedings do
not have such validation, the proceedings can be challenged. The court when
called to adjudicate such a dispute can enquire whether a particular privilege
or power of the House exists and test its legality. If the privilege or power
exists, the court cannot question such privilege or power. This view is
consonant with the common law position (see para 17).
· (4) 
In Malaysia although the fundamental constitutional principle is Constitutional
supremacy and not Parliamentary supremacy, since the Malaysian
parliamentary system is modeled after the Westminster system, the general
 principles and usages of Westminster are not entirely irrelevant to resolve
ambiguities except where the Federal Constitution, State Constitutions, or
local laws prohibit reliance upon such principles and usages. The first point of
reference must be the Malaysian Constitution or Malaysian law, as was done
in Zambry's case (see para 23).
· (5) 
The only direct express provision on contempt of the House is s 9 of
the Houses of Parliament (Privileges and Powers) Act 1952 ('the 1952 Act'),
which provides the House with a summary power to punish for contempt but
is silent on the punishment of suspension or the withholding of allowances
and other entitlements. However, the power to suspend and to expel exists
at common law. Pursuant to ss 32 and 33 of the 1952 Act the privileges,
immunities and powers of the Houses of Parliament are enlarged by
incorporating the like privileges, immunities and powers of the House of
Commons enjoyed at the commencement of the 1952 Act (see paras 25–26
& 28).
· (6) 
In the instant case, the plaintiff's conduct fell within the definition of
contempt under s 9 of the 1952 Act and also under common law. Thus, by
virtue of ss 32 and 33, the plaintiff's conduct would also constitute contempt
of the House and punishable as such — the punishment of suspension, or
even expulsion, being well-established at common law. Therefore the
proceedings of the House concerning the plaintiff's
2 MLJ 674 at 677
conduct and the 12 month suspension had legal basis and were immune from
judicial review or challenge by operation of art 63(1) of the Constitution (see
para 30).
· (7) 
However, there was no express Malaysian provision, or House of Common's
power existing at the date of the 1952 Act to withhold the allowances and
entitlements of a Member of Parliament. There was therefore no legal basis
to withhold the plaintiff's allowances and entitlements and such decision was
open to challenge. The Constitutional protection for Members of Parliament
under art 64 of the Federal Constitution — which requires Parliament to
provide by law for the remuneration of Members — could not be displaced in
the absence of clear law allowing the withholding of a Member's
remuneration and entitlements (see para 30). Datuk Ong Kee Hui v Sinyium
Anak Mutit [1983] 1 MLJ 36 (FC) (followed).
· (8) 
Standing Order 43(3) which sets out the procedure on the suspension of a
Member constituted a provision of form relating to proceedings of the House,
is immune from judicial review as long as the power to punish for contempt
of the particular offence exists (see paras 32 & 35).
Tengku Muhammad Fakhry Petra Ibni Sultan Ismail Petra v Yang
Maha Mulia Pemangku Raja Kelantan & Ors

HIGH COURT (KUALA LUMPUR)

MOHAMAD ARIFF J

The applicant applied for judicial review to challenge the decision of the Regent of
Kelantan, his elder brother, who had drastically altered the membership of the Kelantan
Council of Succession ('the Council') by removing the applicant from its membership and
appointing the fourth to
1 MLJ 128 at 129
eighth respondents as members. The applicant's main objection to the decision was that
only the Sultan of Kelantan could alter the composition of the Council, and as such the
Regent's actions amounted to an usurpation of the Sultan's powers. The applicant
intended to obtain a wide range of remedies to include orders of certiorari, declarations,
mandamus, quo warranto, injunction and damages. The prayers fell into two parts,
namely those relating to the revocation of the applicant's membership of the Council and
those relating to the appointments of the fourth to eighth respondents as members of
the Council. The dispute concerned on a matter of Royal Succession. It was argued that
not only had the Regent no constitutional power to do as he did, but what was done did
not accord with the wishes of the Sultan. During the applicant's application for leave to
apply for judicial review, senior federal counsel had raised an objection on the issue of
justiciability.

Held, dismissing the application with costs:

· (1) 
When the court hears the application for leave on an inter partes basis, the
court needs to be satisfied that 'there is a case fit for further consideration'.
Generally leave will be refused only where an application is: (i) frivolous and
vexatious or hopeless; (ii) made by busybodies with misguided or trivial
complaints of administrative errors; (iii) misconceived; (iv) unarguable or
groundless; (v) where there is a more appropriate alternative procedure; or
(vi) where an application for judicial review is an inappropriate procedure
(see paras 4 & 7).
· (2) 
Justiciability relates to the issue of whether judicial review is an appropriate
procedure. An issue is regarded as non-justiciable where a court of law or the
court process is ill-suited to decide the issue by reason of lack of
competence, unsuitability of the legal method, lack of satisfactory criteria for
a judicial determination of the dispute at hand, or where constitutional,
common or statutory laws expressly or contextually insulate it from judicial
determination (see para 8).
· (3) 
The Regent is intended to be constitutionally vested with all the necessary
powers of the Sovereign during the period of incapacitation. The context
certainly does not exclude the exercise of powers under art VII of the Laws of
the Constitution of Kelantan. Nevertheless, this power is temporary in nature
and exists only during the period of incapacitation of the Sovereign (see para
9).
· (4) 
The subject matter of the present application for leave for judicial review was
inherently non-justiciable. In a matter such as this, the proper forum to
resolve the dispute would be the Sultan himself, once His Royal Highness is
no longer incapacitated (see para 30).
 ABDUL RAHMAN TALIB v SEENIVASAGAM & ANOR
FC KL
THOMSON LP, BARAKBAH CJ MALAYA AND ONG HOCK THYE FJ

The plaintiff/appellant had claimed damages for slander in respect of a verbal statement
made by the 1st defendant, and for libel in respect of written statements made by the
1st and 2nd defendants, alleging corrupt practices by the plaintiff. The alleged slander
was contained in a statement made by the 1st defendant at a meeting at the Chinese
Assembly Hall, Kuala Lumpur, referring to and repeating what he had already said as a
member of Parliament in the House of Representatives, and the alleged libels were
contained in (a) a written statement handed over by the 2nd defendant to persons
present at that meeting and (b) a written statement handed over by the 1st defendant
to a press representative at that meeting. The 1st defendant in his defence pleaded
qualified privilege, fair comment and justification. The second defendant pleaded
justification. The trial judge held that the defence of qualified privilege failed but that the
defendant's defence of justification succeeded.

Held:
· (1) 
the learned trial judge had drawn the proper inferences from proved facts, in
holding as he did that the plaintiff had received favours but not money and in
coming to the conclusion that although the defendants had failed to prove
the truth of the charge relating to money, the imputation in that respect did
not materially injure the plaintiff's reputation having regard to the truth of
the rest of the charges;
· (2) 
taking the evidence in the case as a whole and on the balance of
probabilities, the defence of justification must succeed.

Badan Peguam Malaysia v Kerajaan Malaysia

FEDERAL COURT (PUTRAJAYA)
ABDUL HAMID MOHAMAD CHIEF JUSTICE, NIK HASHIM, HASHIM YUSUFF,
AZMEL AND ZULKEFLI FCJJ

By an originating summons, the Bar Council ('plaintiff') prayed for a declaration that the
appointment of Dr Badariah bte Sahamid as a judicial commissioner of the High Court of
Malaya was null and void and of no effect on the ground that the appointment was in
contravention of art 122AB read together with art 123 of the Federal Constitution. On 27
August 2007, ie one day before the matter was scheduled to be mentioned before the
learned judge of the High Court, the Government of Malaysia ('defendant') filed a
summons in chambers for questions of law relating to the appointment be referred to
this court pursuant to s 84 of the Courts of Judicature Act 1964. On 18 September 2007,
after hearing the parties, the learned judge allowed the defendant's application and
referred the constitutional issues to this court for its determination. The issues were as
follows:
· (i) 
Whether the words 'advocates of those courts' appearing in art 123 of
the Federal Constitution requires an advocate to have been in practice for a
period of 10 years preceding his/her appointment as a judicial
commissioner under art 122AB of the Federal Constitution?
 2 MLJ 285 at 286
· (ii) 
If the answer to question (i) is in the negative, is the appointment of
YA Dr Badariah Sahamid as a judicial commissioner of the High Court of
Malaya with effect from 1 Mac 2007 valid?

Dr Badariah Sahamid graduated with a first class honours degree in law from the
University of Malaya on 17 June 1978. That qualification renderred her to be a 'qualified
person' within the meaning of the Legal Profession Act 1976. Having completed her
pupilage and having satisfied the requirements of the Act, on 26 September 1987, she
was admitted as an advocate and solicitor of the High Court of Malaya. However, she
never applied for nor obtained a practising certificate that would enable her to practise
as an advocate and solicitor. Instead, she served as a lecturer, Associate Professor and
later Professor at the Faculty of Law of the University of Malaya from 14 January 1980.
The issue before this court was one of law, ie whether she was, in law, qualified for the
appointment.

Held, by majority answering questions (i) and (ii) in the negative and affirmative
respectively:
· (1) 
(perHashim Yusuff FCJ, Azmel FCJ concurring) When interpreting the
Federal Constitution one must bear in mind the all pervading provisions of
art 8(1). To read into art 123 of the Federal Constitution the words 'a
practising' before the word 'advocate' is to deprive the respondent of
equality before law, a fundamental liberty under the Constitution (see para
86).
· (2) 
(per Hashim Yusuff FCJ, Azmel FCJ concurring) In the instant case the
court is interpreting the Federal Constitution which is a constitutional
instrument sui generis to be interpreted according to principles suitable to
its particular character and not necessarily according to the ordinary rules
and presumptions of statutory interpretation. The Legal Profession Act,
governing the legal profession, has provisions relating to 'advocate in active
practise', advocate having a practising certificate and 'a practising advocate'
eg, ss 13(1), 21(1), 36 and 38(g) and the draftsman being aware, as he
must have been of such provisions would surely spell out 'practising
advocate' requirements in art 123 of the Federal Constitution if he had
intended such a limitation in art 123 (see paras 93-94).
· (3) 
(per Hashim Yusuff FCJ, Azmel FCJ concurring) Moreover, it is fallacious
to argue that legal experience if indeed it is a requirement of art 123, can
only be obtained as a 'practising advocate'. While legal experience could
commonly be gained by legal practise it is not the only or exclusive means
of gaining legal experience. Section 38(g) of the Legal Profession Act
specifically recognizes a full-time law lecturer acting as an advocate and
solicitor in solely advisory capacity upon
2 MLJ 285 at 287
instructions from a practising advocate and solicitor. What more, a person
is qualified for appointment as a judge of the High Court if he has been a
member of the Judicial and Legal Service for the 10 years preceding his
appointment even if he were to have been posted in the Drafting Division of
the Attorney General's Chambers and may not even have gone to court
even once during his tenure there (see paras 95-96).
· (4) 
(per Hashim Yusuff FCJ, Azmel FCJ concurring) Dr Badariah had wide
knowledge and experience in several areas of the law and legal cases that
come before the courts. This could be seen from her affidavit filed therein.
Indeed as a lecturer in law she has been responsible in teaching and
training numerous advocates and solicitors. There was no valid reason why
a person of her standing and experience in the law should be deprived of
her privilege and benefit of being appointed as a judicial commissioner. The
administration of justice and the public has more to gain than lose if she
was appointed as a judicial commissioner (see para 97).
· (5) 
(per Azmel FCJ) This case pertained to construing the provision of the
Federal Constitution and not an ordinary statute. As such the principles
regarding constitutional interpretation have to be adhered to. One of such
principles is that a constitution is not to be construed in any narrow or
pedantic sense. It should be considered with less rigidity and more
generosity than other statutes. It was quite obvious that the case
of Rajasegaran had been construed narrowly or rigidly by inserting into its
meaning the need to have a practising certificate when the words
'practising certificate' were not so provided in art 123 of the Federal
Constitution. Hence for this court to be governed by the decision
in Rajasegaran would tantamount to deciding contrary to the generally
accepted principles of constitutional interpretation. The decision
in Rajasegaranshould be ignored. On the other hand the decision
in Samantha Murthi would be a more appropriate case for this court to
follow. In that case one could clearly see that the approach the court took
in interpreting s 13(1) of Legal Profession Act 1976 ('the LPA') was akin to
the principles of constitutional interpretation by not giving a narrower or
restrictive meaning of the term 'advocate and solicitor' (see para
129); Samantha Murthi v Attorney-General, Malaysia & Ors [1982] 2 MLJ
126 (folld) followed; All Malayan Estate Staff Union v Rajasegaran &
Ors [2006] 6 MLJ 97 (not folld) not followed.
· (6) 
(per Azmel FCJ) Hence by requiring a person to have a practising
certificate in order to be qualified to be appointed as a judicial
commissioner would not guarantee that a person issued with a certificate
would 'actually' practise law. Yet he comes within the category of a
'qualified person' to be appointed as a judicial
2 MLJ 285 at 288
commissioner. In other words, the insistance of adding the words
'practising certificate' within the meaning of art 123 of the Federal
Constitution would not guarantee us getting 'proper' candidates for the
appointment of a judicial commissioners (see para 131).
· (7) 
(per Azmel FCJ) In the light of the precedent created through the
appointment of Dr Visu Sinnadurai and the lack of objection by the Bar
Council it would be highly unfair and certainly most unconscionable on the
part of the Bar Council to practise a double standard. Such differing
treatment by the Bar Council should not be condoned by this court at all
(see para 137).
· (8) 
 (per Nik Hashim FCJ) A broad and liberal interpretation should be given to
the phrase 'advocate of those courts' under art 123 of the Federal
Constitution. This call is in accord with a well-established principle that a
constitution should be construed with less rigidity and more generosity than
other statutes (see para 55).
· (9) 
(per Nik Hashim FCJ) The interpretation as requiring only an advocate and
solicitor who has been in practice (in possession of a practising certificate)
preceding the appointment before he could be qualified as a judicial
commissioner or a judge of the High Court, would amount to reading words
which are not in art 123 of the Constitution, and surely it is a wrong thing
to do for the term 'advocate' in the Constitution appears to have the same
meaning as 'advocate' and 'advocate and solicitor' under s 66 of the
Interpretation Acts 1948 and 1967 (Part II) to mean an advocate and
solicitor of the High Court, and under s 3 of the Legal Profession Act 1976
the phrase 'advocate and solicitor' means an advocate and solicitor of the
High Court admitted and enrolled under this Act or under any written law
prior to the coming into operation of this Act. So, in the present case,
although Dr Badariah had no practising certificate under the LPA, she was
an advocate and solicitor as she had been admitted and enrolled as one and
there is nothing in s 3 to say that to be an advocate and solicitor one must
have a practising certificate. Thus, an 'advocate of those courts' under art
123 of the Constitution does not necessarily need to be a practising
advocate and solicitor (see para 58).
· (10) 
(per Nik Hashim JCA) The Bar Council's interpretation of art 123 of the
Constitution as requiring an advocate and solicitor who must have been in
practice (in possession of a practising certificate) preceding the
appointment was too rigid. A generous interpretation is called for in this
case as Dr Badariah could be considered as practising in a wider sense as
she was teaching law to her students in the University of Malaya before her
appointment as a judicial commissioner. Therefore, the main criterion for
the appointment as a judicial commissioner or a judge of the High Court is
that the candidate must had been called to the Bar
2 MLJ 285 at 289
and admitted and enrolled as an advocate and solicitor for 10 years and it
does not matter if the candidate, like Dr Badariah here, did not possess a
practising certificate preceding the appointment (see para 59); Samantha
Murthi v Attorney-General, Malaysia & Ors [1982] 2 MLJ 126 followed; All
Malayan Estate Staff Union v Rajasegaran & Ors [2006] 6 MLJ
97 distinguished.
· (11) 
(per Abdul Hamid Mohamad Chief Justice) Even though the Constitution
does not provide that to qualify to be appointed as a judge or a judicial
commissioner, an advocate must be a practising advocate having a
practising certificate, considering the two categories ie 'an advocate' and 'a
member of the legal and judicial service' together, the more reasonable
interpretation that should be given to the word 'advocate' is a practising
advocate. This is further strengthened by the requirement that an advocate
or a member of the judicial and legal service must have been so for ten
years. That requirement can only mean to enable the advocate or the
officer to gain experience at the bar or in the service before he is
appointed. Otherwise, that requirement serves no purpose whatsoever (see
para 42).
· (12) 
(per Abdul Hamid Mohamad Chief Justice) The definition of the word
'advocate' in s 3 of the Interpretation Act 1948 and 1967 also supports the
conclusion that the word must mean an advocate having a practising
certificate, otherwise he is not 'entitled to practise'. The requirement that a
person must be an advocate for at least ten years is meant to cover
advocates and solicitors who practise law. It is not meant to include people
who is 'only in name' an advocate and solicitor merely by virtue of being
admitted to the bar but spend their lives doing something else, whether
teaching law, in business or politics. If they are intended to be included, the
Constitution would and should have said so, as in Singapore or, more
clearly in India which provides that a 'distinguished jurist' is also qualified to
be appointed a judge (see paras 43-44).
· (13) 
(per Abdul Hamid Mohamad Chief Justice) Furthermore, this court has
only last year interpreted the provision of s 23A(1) of the Industrial
Relations Act 1967 to mean a practising advocate and solicitor even though
that section specifically refers to the meaning of 'advocate and solicitor' in
the Legal Profession Act 1967 which only speaks of an advocate and
solicitor who has been admitted and enrolled as such. The definition of the
word 'advocate' in art 123 of the Constitution is not restricted to the
meaning given in the Legal Profession Act 1967. There is no fault in that
judgment to justify the court to disagree with it. On the other hand, to hold
otherwise would lead to an absurd result in which, a non-practising
advocate may not be appointed a Chairman of the Industrial Court but may
be appointed a judicial commissioner,
2 MLJ 285 at 290
a judge of the High Court, a judge of the Court of Appeal, a judge of the
Federal Court or even the Chief Justice (see para 45); All Malayan Estate
Staff Union v Rajasegaran & Ors [2006] 6 MLJ 97 followed.
· (14) 
(per Abdul Hamid Mohamad Chief Justice dissenting) It may be that the
time has come for other categories of persons, eg academicians to be
included as persons qualified to be appointed as judges especially in such
areas of law as intellectual property, conventional and Islamic finance and
banking and so on. But that is a matter of policy for the Government to
decide (see para 46).
· (15) 
(per Zulkefli FCJ dissenting) The crucial words under art 123 of the
Federal Constitution that need to be considered are as follows: 'for the ten
years preceding his appointment he has been an advocate of those courts
….' In order to be an advocate of those courts, a person has to be in actual
or active practice, besides having first been admitted and enrolled under
the provision of the LPA as an advocate and solicitor. It further follows that
to enable to practise, an advocate and solicitor has to apply for and be
issued with a practising certificate (see paras 114-115).
· (16) 
(per Zulkefli FCJ dissenting) Based on the definition of 'advocate' under s
66 of the Interpretation Act and the relevant provisions of the LPA when
read together with the words 'advocate of those courts' in art 123 of the
Federal Constitution would mean that an 'advocate' is someone who has
been in practise. In this context the purposive approach of interpretation
 should be adopted to the meaning of the words 'advocate of those courts' in
art 123 of the Federal Constitution. The Federal Constitution is a living
document and without doing violence to the language used art 123 of the
Federal Constitution should receive a fair, liberal and progressive
construction so that its true objects must be promoted (see para 116).
· (17) 
(per Zulkefli FCJ dissenting) The capacity that an advocate must be in
active practise for the purposes of art 123 of the Federal Constitution is
further fortified by reference to the words 'has been….' and the significance
of the ten year period. The words 'has been' in art 123 must be in reference
to the act that has been done, that is having being a practising advocate at
those Courts of Law. The ten year period would mean it is a vital
requirement that before Dr Badariah's appointment as a judicial
commissioner was made in the present case, she had to show that she has
at least ten years experience as a practising advocate. It must also be
noted that to construe the words 'advocate of those courts' to mean that an
advocate need only be admitted and enrolled is to create an absurd
situation in that an advocate need not be in active practise. It is to be noted
that under the same art 123 of the Federal Constitution even a member of
the Judicial and Legal Service of the Federation must
2 MLJ 285 at 291
have the requisite number of years of working experience to be eligible for
appointment as a judge or a judicial commissioner (see para 117).
· (18) 
(per Zulkefli FCJ dissenting) The interpretation favoured by the plaintiff is
consistent with the fact that the courts have always considered an advocate
to be in active practise because he is not allowed to practise another
profession at the same time or be gainfully employed in a capacity other
than as an advocate and solicitor (see para 118).
· (19) 
(per Zulkefli FCJ dissenting) The Federal Court in All Malayan Estate Staff
Union v Rajasegaran & Ors [2006] 6 MLJ 97 had came to the conclusion
that the seven years stipulated in s 23A(1) of the IRA means that the
person must have been in practise for that period of time and must be
construed as a reference to an advocate and solicitor who has been in
practise under the LPA. If a narrow construction is adopted to interpret art
123 of the Federal Constitution in that an advocate need not be in active
practice to be eligible for appointment as a judge or as a judicial
commissioner, and applying the principles enunciated in Rajasegaran's case
it would lead to an absurd consequence in that a person who is ineligible to
be appointed as Chairman of the Industrial Court [inferior court], could be
appointed as a judge or as a judicial commissioner of the High Court (see
para 120).
ASSA SINGH v MENTRI BESAR, JOHORE

FEDERAL COURT KL
AZMI, LP ONG HOCK THYE CJ (MALAYA), SUFFIAN AND GILL FJJ AND RAJA
AZLAN SHAH J

In this case the learned judge at Johore Bahru referred the following question to the
Federal Court under section 48 of the Courts of Judicature Act, 1964: "Are the provisions
of the Restricted Residence Enactment authorising the detention and/or the deprivation
of liberty of movement contrary to the provisions of the Federal Constitution and void?"
The applicant in this case had been arrested and detained by the order of the Mentri
Besar of Johore under the Restricted Residence Enactment in exercise of the powers
purported to be delegated to him by the Minister of Interior and Justice. It was argued in
this case that the Enactment has no provision: (i) for informing the person concerned of
the grounds of his arrest and detention; (ii) for presenting him before a magistrate or for
an enquiry at which the detained person could meet the allegations against him; (iii) for
review; (iv) for limitation of the period of detention. Because of these reasons it was
submitted that the provisions of the Enactment were inconsistent
1969 2 MLJ 30 at 31
with the provisions of articles 5 and 9 of the Constitution.

Held:
· (1) 
the Restricted Residence Enactment is a law relating to public security and
therefore its provisions are not inconsistent with article 9 of the Constitution;
· (2) 
the Enactment does not have provisions similar to those of clauses (3) and
(4) of article 5 of the Constitution but this does not make it un-constitutional;
despite such inconsistency with the Constitution the Enactment is in force,
but it must be applied with such adaptations as may be necessary to bring it
into accord with the Constitution;
· (3) 
the provisions of clauses (3) and (4) of article 5 of the Constitution must
therefor be read into the provisions of the Restricted Residence Enactment;
· (4) 
the delegation by the Minister of his powers under the Enactment is a valid
one and the Mentri Besar can therefore validly exercise all the powers and
duty of the Minister under section 2 of the Enactment

PUBLIC PROSECUTOR v DATO' YAP PENG

[SUPREME COURT] KUALA LUMPUR

SALLEH ABAS LP, LEE HUN HOE CJ (BORNEO), MOHAMED AZMI, HASHIM YEOP
A SANI & ABDOOLCADER SCJJ

In this case the respondent had been charged in the Sessions Court at Kuala Lumpur on
two charges of criminal breach of trust to which he claimed trial. When his case was
mentioned again in the Sessions Court, the Deputy Public Prosecutor tendered a
certificate issued by the Public Prosecutor under section 418A of the Criminal Procedure
Code requiring the case to be removed to the High Court and this was promptly complied
with. The respondent was then formally arraigned in the High Court at Kuala Lumpur
when objection was taken on his behalf to the transfer of the case from the Sessions
Court on a challenge mounted against the constitutional validity of section 418A of the
Criminal Procedure Code on the basis that it infringes Articles 121(1) and 5(1) of the
Federal Constitution. Zakaria Yatim J. in a reserved decision held section 418A to be
unconstitutional and void in that it is inconsistent with Article 121(1) of the Federal
Constitution and that the certificate issued by the Public Prosecutor thereunder was
accordingly invalid and of no effect and ordered the case to be remitted to the Sessions
Court for trial. He indicated that it was therefore unnecessary to consider the question of
the validity of section 418A of the Code in relation to Article 5(1) of the Federal
Constitution. The Public Prosecutor appealed.

Held (by a majority, Salleh Abas L.P. and Hashim Yeop A. Sani S.C.J. dissenting):
section 418A of the Criminal Procedure Code is unconstitutional and void as being an
infringement of the provisions of Article 121(1) of the Federal Constitution and that the
doctrine of prospective overruling would be applied so as not to give retrospective effect
to the declaration made with the result that all proceedings of convictions and acquittals
which had taken place under the section prior to the date of the judgment in this matter
would remain undisturbed and not be affected.
Editorial Note

In this case at the end of the hearing of the appeal on March 19, 1987, the Supreme
Court by a majority (Lee Hun Hoe C.J. (Borneo), Mohamed Azmi and Abdoolcader
S.C.JJ.) dismissed the appeal. The leading majority judgment was delivered by
Abdoolcader S.C.J., Lee Hun Hoe C.J. (Borneo) concurring, on March 23, 1987. Mohamed
Azmi S.C.J. gave his judgment on May 11. Salleh Abas L.P. gave his dissenting judgment
on May 15 and Hashim Yeop A. Sani S.C.J. on April 6, 1987.

TENG CHANG KHIM v. BADRUL HISHAM ABDULLAH & ANOR

FEDERAL COURT, PUTRAJAYA
MD RAUS SHARIF CJ;   SURIYADI HALIM OMAR FCJ;   AHMAD MAAROP FCJ;  
ZAINUN ALI FCJ;   ABU SAMAH NORDIN FCJ
Parliament - Privileges and immunities - Member of State Legislative Assembly absent from State
Legislative Assembly meetings for six months without leave of Speaker - Speaker rejected member's
application for leave and declared member's seat vacant - Member initiated judicial proceedings
against Speaker - Whether Speaker immune from being challenged in court - Whether enjoyed
constitutional privilege and protection -  Constitution of the State of Selangor 1959, arts.
69  &  77  -  Federal Constitution, art. 72(1)
The first respondent was a member of the Selangor Legislative Assembly ('SLA') for the N46
Pelabuhan Klang Constituency ('N46 Constituency'). His last attendance in the SLA meeting
was recorded on 15 July 2010 and the first respondent did not attend any of the six days of
the SLA in November 2010. It was only on 10 December 2010 that the appellant, who was
the Speaker of the SLA ('the Speaker'), received a letter from the first respondent citing
'traditional medical treatment in Pahang' as the reason for his absence. The Speaker
rejected the first respondent's application for leave of absence and went on to declare the
seat for the N46 Constituency vacant due to the first respondent's absence from the SLA
meetings for a period of six months without the leave of the Speaker, pursuant to art. 69 of
the Constitution of the State of Selangor 1959 ('the CSS') ('the declaration'). The reason for
the decision and declaration was later explained by the Speaker through his statement
issued in a press conference. The Speaker notified the Election Commission ('the second
respondent') of the decision. This prompted the first respondent to commence an action at
the High Court for a declaration that the appellant had acted ultra vires of arts. 69 and 70 of
the CSS in making the declaration, as the appellant had no power to do so. The High Court
granted the relief sought by the first respondent and the Court of Appeal affirmed the High
Court's decision. Hence, the present appeal. The primary issue that arose for the court's
adjudication was whether the declaration was made within the realm of the internal
arrangement of the SLA and therefore, not amenable to judicial proceedings. In support of
his appeal, the Speaker submitted that (i) his acts were in exercise of his functions to
regulate the internal affairs of the SLA and were immune from being challenged in the court;
and (ii) he was protected under art. 72(1) of the Federal Constitution ('the FC') and art. 77 of
the CSS. The second respondent argued that the Speaker's act in making the declaration
could not be considered as part of the proceedings of the SLA since it was made during a
press conference and therefore, did not warrant constitutional privilege and protection.
Held (allowing appeal)
Per Md Raus Sharif CJ delivering the judgment of the court:
(1) The Speaker had acted legally as the declaration was made purely within the parameters
set out by art. 69 of the CSS. Article 69 of the CSS expressly provides the authority for the
Speaker to declare a seat vacant if a member of the Legislative Assembly is absent without
leave from every sitting for a period of six months. Even though the declaration was made
outside the SLA proceedings, it was inevitably connected to the essential business of the SLA
and was made in the performance of the Speaker's essential function as a Speaker. The
Speaker's act was non-justiciable and the Speaker was entitled to the protection of
Parliamentary privilege enjoyed by the SLA under art. 72(1) of the FC and paras (2) and (3) of
the Schedule to art. 77 of the CSS. The decisions of the Court of Appeal and the High Court
were set aside. (paras 35, 36, 37, 51 & 53)

ROBERT LINGGI v. THE GOVERNMENT OF MALAYSIA

HIGH COURT SABAH & SARAWAK, KOTA KINABALU
DAVID WONG DAK WAH J

  Legislation - Amendment - Whether only Parliament can make or amend laws - Whether the Prime
Minister may amend any law by way of gazette - Whether  s. 37 of the Judicial Appointments
Commission Act 2009  null and void

The plaintiff, a Sabahan, made this application to safeguard what he perceived as breaches
of the constitutional positions entrenched in respect of the High Court of Sabah and
Sarawak ('HCSS') under art. 161E(2)(b) of the Federal Constitution ('the Constitution'). The
issue concerned the appointment of judicial commissioners ('JCs') to the HCSS. Prior to the
amendments to art. 122A(3) and (4) of the Constitution on 24 June 1994, the JCs of the
HCSS may be appointed by the respective Yang di-Pertua Negeri acting on the advice of the
Chief Judge of HCSS. After 24 June 1994, the power of the respective Yang di-Pertua Negeri
of Sabah and Sarawak ('YDPs') to appoint JCs was taken away by the Constitution
(Amendment) Act 1994 ('1994 Amendments') which incorporated a new art. 122AB. The
plaintiff sought the following declarations: (i) that the removal of judicial power from the
HCSS by virtue of the amendment to art. 121 of the Constitution was null and void; (ii) that
the removal of the power of appointment of JCs to the HCSS by the YDPs was null and void;
and (iii) that the setting up of the Judicial Appointment Commission ('JAC') under the Judicial
Appointment Commission Act 2009 ('the Act') was unconstitutional and hence null and void.
The parties agreed to the following issues to be tried under O. 14A of the Rules of the High
Court 1980: (a) whether the plaintiff had the locus standi to bring this suit; (b) whether the
concurrence of the YDPs was required pursuant to art. 161E(2)(b) of the Constitution when
art. 122A(3) and (4) of the Constitution was amended and art. 122AB of the same was
inserted with effect from 24 June 1994; and (c) whether the enactment of the Act which
came into force on 2 February 2009 was unconstitutional, null and void on the grounds that:
(i) it departed from the constitutional procedure and mode of appointment of JCs and
judges set out in art. 122AB and 122B of the Constitution and in effect it would be the
substitute for the present consultative process between the Prime Minister and the
individual judges under the said articles; (ii) it was in effect an amendment of art.
122AB and 122B of the Constitution and enacted in contravention of art. 159(3) of the
Constitution; (iii) there was no concurrences of the YDPs pursuant to art. 161E(2)(b) of the
Constitution; and (iv) s. 37 of the Act was enacted in contravention of art. 44 of the
Constitution.
Held:
(1) All Malaysians have an entrenched right to litigate their grievance in court whenever
there is a perceived breach of the Constitution by the legislature. The plaintiff, as a Sabahan,
was genuinely concerned with the erosion of the rights of Sabah in so far as "the
constitution and jurisdiction of the HCSS and the appointment, removal and suspension of
judges of that court" and since it concerned an attempt to uphold the Constitution, the
plaintiff had the locus standi to bring this action. (paras 6 & 11)
(2)Article 161E(2) prohibits amendments to the Constitution without the consent of the
respective YDPs if the amendment is such as to affect the operation of the Constitution as
regard the constitution and jurisdiction. The word "constitution" refers to "existence" or the
"made up or structure" of the HCSS. The 1994 Amendment did not affect the existence of
the HCSS. As for the "make up" of the HCSS, it must involve the judicial officers presiding or
manning in the courts in Sabah and Sarawak. They so to speak are the "make up" or part of
the structure of the court. A JC is a judicial officer of the court and constitutes part of the
structure of the court. Hence when the 1994 Amendment was introduced without the
consent of the respective YDPs, it contravened art. 161E (2)(b). The 1994 Amendment was
invalid and therefore null and void in so far as it concerned the removal of the power to
appoint JCs by the respective YDPs. (paras 17, 19 & 26)
(3)Article 122AB and 122B of the Constitution provides that "the Prime Minister shall
consult" the relevant judges before he advises the Yang di Pertuan Agong for any
appointment of judges. This duty to consult is a constitutional duty and it can only be taken
away by an express amendment to the Constitution. There was no such constitutional
amendment and hence the Act must be read subject to that constitutional duty to consult.
Accordingly s. 28 of the Act should not be read as if there is no requirement for the Prime
Minister of the day to consult the relevant judges before he tenders his advice in
accordance with art. 122AB and 122B of the Constitution. To read otherwise would make s.
28ultra vires the Constitution. (paras 40 & 44)
(4)Section 37 of the Act gave the power of the Prime Minister to amend any provisions of
the Act by way of a gazette. Any amendment to the Act or for that matter any legislation is
an exercise of legislative power. The doctrine of separation of powers embodied in the
Constitution dictates that only Parliament can make or amend laws. Hence, s. 37 of the
Act was null and void as it contravened the Constitution. (para 45)
(5)Article 122AB of the Constitution is null and void in so far as the appointment of JCs by
the respective YDPs is concerned. (para 46 )