Why The Member of Parliament for Pasir Gudang Is Wrong About Najib’s Disqualification

Tan Sri Azhar bin Azizan Harun, the Speaker of the House of Representatives, has ruled that Dato’ Sri Haji Mohammad Najib bin Tun Haji Abdul Razak (“DSNR“) will remain the Member of Parliament for Pekan until the disposal of the latter’s motion for review in the Federal Court and/or the latter’s petition for a pardon.[1]

Hassan bin Abdul Karim, the Member of Parliament for Pasir Gudang, disagrees with Tan Sri Azhar bin Azizan Harun on, amongst others, the following grounds:[2]

(a) DSNR has been disqualified as a Member of Parliament as soon as the Federal Court handed its decision;

(b) The royal pardon proceeding has not been heard;

(c) The Royal Pardon Board is not a court; and

(d) It is not stated in the Federal Constitution that if a Member of Parliament petitions to the Pardons Board or applies for a review of the Federal Court’s decision that his/her qualification as a Member of Parliament remains.

With all due respect to YB Hassan, all of his contentions do not hold water.

Article 48(1) of the Federal Constitution, which he is relying on, expressly begins with the phrase “Subject to the provisions of this Article.”

This would mean that Article 48(1)(e) of the Federal Constitution, which YB Hassan is relying on to automatically disqualify DSNR as a Member of Parliament, has to be read together with the other provisions in Article 48 of the Federal Constitution.

Article 48(4) of the Federal Constitution has various sub-provisions of relevance.

Article 48(4)(b) and (c) of the Federal Constitution provides:

“Notwithstanding anything contained in the foregoing provisions of this Article, where a member of either House of Parliament becomes disqualified from continuing to be a member thereof pursuant to paragraph (e) of Clause (1) or under a federal law made in pursuance of Clause (2)—

(b) if within the period of fourteen days specified in paragraph (a) an appeal or any other court proceeding is brought in respect of such conviction or sentence, or in respect of being so convicted or proved guilty, as the case may be, the disqualification shall take effect upon the expiry of fourteen days from the date on which such appeal or other court proceeding is disposed of by the court; or

(c) if within the period specified in paragraph (a) or the period after the disposal of the appeal or other court proceeding specified in paragraph (b) there is filed a petition for a pardon, such disqualification shall take effect immediately upon the petition being disposed of.” (Emphasis mine)

As DSNR appealed to the Federal Court, DSNR’s disqualification from being a Member of Parliament would only take effect 14 days after the disposal of his Federal Court appeal.

The Federal Court handed its decision, in relation to DSNR’s appeal, on 23rd August 2022.[3]

However, within the 14 days from the 23rd August 2022:

(a) DSNR filed a petition for a pardon, on 2nd September 2022;[4] and

(b) DSNR filed a motion for review against the Federal Court’s decision, on 6th September 2022.[5]

This would mean that Article 48(4)(b) and (c) of the Federal Constitution has come into play to “stay” (read: pause) DSNR’s disqualification as a Member of Parliament.

DSNR will only be disqualified as a Member of Parliament upon the expiry of fourteen days from the date of the disposal of his motion for review in the Federal Court or immediately upon the disposal of his petition for a pardon (whichever is later).

Granted, DSNR’s petition for a pardon has not been disposed of by the Pardons Board. However, Article 48(4)(c) of the Federal Constitution applies as soon as DNSR’s petition for a pardon has been filed.

Further, it is also granted that the Pardons Board is not a court. However, YB Hassan appears to be conflating between Article 48(4)(b) and (c) of the Federal Constitution.

Article 48(4)(b) of the Federal Constitution would apply to DNSR’s motion for review while Article 48(4)(c) of the Federal Constitution would apply to DNSR’s petition for a pardon.

Editor’s Note: This article also appeared on Malay Mail, The Malaysian Insight, and Malaysia Now

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Does the Attorney General (Still) Have Absolute Discretion?

In Datuk Zaid bin Ibrahim’s recent interview on Astro Awani,[1] he mentions a number of times that the Attorney General’s discretion is absolute.[2]

Article 145(3) of the Federal Constitution is of relevance:

“The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial” (Emphasis mine)

The topic of the Attorney General’s discretion was the subject of my conference paper, which was subsequently published in a journal.[3]

The paper traced the courts’ historical position on the reviewability of the exercise of the Attorney General’s discretion.

Up until Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 4 CLJ 561 [“Chin Chee Kow”], the apex courts of Malaysia consistently held that the Attorney General’s discretion is absolute or unfettered.[4]

In Chin Chee Kow, the Federal Court agreed with the Court of Appeal’s view that:

(a) the Attorney General only had absolute discretion in criminal matters;[5] and

(b) in non-criminal matters, the Attorney General did not have absolute or unfettered discretion.[6]

This began the departure from years of established precedent on the Attorney General’s discretion.

When it came to Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209 (“Sundra Rajoo“), the Federal Court went even further than Chin Chee Kow and held that the Attorney General’s exercise of discretion would be subject to judicial review in appropriate circumstances.[7]

This, in effect, meant that even in criminal matters, the Attorney General no longer has absolute or unfettered discretion.

The current legal position is that the Attorney General has wide discretion.

However, post Chin Chee Kow and Sundra Rajoo, it would no longer be correct to say that the Attorney General has absolute or unfettered discretion.

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Two Thirds Majority Needed for the Generational End Game Bill?

In reporting on the Control of Tobacco Product and Smoking Bill 2022,[1] more popularly known as the ‘Generational End Game’ bill (“the GEG Bill”), the Edge Markets stated that, “The bill needs two-thirds majority support [in Parliament] to be approved.”[2]

Contrary to the Edge Market’s claims, the GEG Bill does not require two-thirds majority support.

The GEG Bill, being an ordinary Act of Parliament (also known as ‘ordinary law’), only requires a simple majority.

As a general rule, a simple majority of members voting suffices for decisions of each House of Parliament.[3]

Article 62(3) of the Federal Constitution states:

“Subject to Clause (4) and to Articles 89 (1) and 159 (3) and to sections 10 and 11 of the Thirteenth Schedule, each House shall, if not unanimous, take its decision by a simple majority of members voting; and the person presiding shall unless he is a member of the House by virtue only of paragraph (b) of Clause (1A) of Article 57, cast his vote whenever necessary to avoid an equality of votes, but shall not vote in any other case. ” (Emphasis mine)

In Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187, the Federal Court recognised that ordinary laws only require a simple majority:

“Our Constitution prescribes four different methods for amendment of the different provisions of the Constitution:

(1) Some parts of the Constitution can be amended by a simple majority in both Houses of Parliament such as that required for the passing of any ordinary law. They are enumerated in clause (4) of Article 159. and are specifically excluded from the purview of Article 159 …” (Emphasis mine) [4]

In other words, it will suffice so long as more than 50% of the Members of Parliament present during a parliamentary sitting vote in favour of the GEG Bill.

A two third majority vote in Parliament is usually necessary for bills which:

(i) intend to amend most parts of the Federal Constitution; [5]

(ii) relate to a law passed under Article 10(4) of the Federal Constitution; [6]

(iii) relate to laws on the cessation of Malay reservations. [7]

For example, Article 159(3) of the Federal Constitution provides the following:

“A Bill for making any amendment to the Constitution (other than an amendment excepted from the provisions of this Clause) and a Bill for making any amendment to a law passed under Clause (4) of Article 10 shall not be passed in either House of Parliament unless it has been supported on Second and Third Readings by the votes of not less than two-thirds of the total number of members of that House.” (Emphasis mine)

The GEG Bill, not being a bill which fits any of the above circumstances, would only require a simple majority to be passed.

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Selected Commonwealth Jurisdictions with Fully Separated Roles of the Attorney General and Public Prosecutor

Selected Commonwealth Jurisdictions with Fully Separated Roles of the Attorney General and Public Prosecutor

In the following Commonwealth jurisdictions, the roles of the Attorney General and Public Prosecutor (or its equivalent) are fully separated into different offices.

Selected Commonwealth jurisdictions where the roles are fused instead, are considered in a previous article.[1]

A. BANGLADESH

The Government appoints Public Prosecutors who are in charge of criminal prosecution

Section 492(1) of the Code of Criminal Procedure, 1898 provides:

“The Government may appoint, generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors.”[2]

Public Prosecutors can only withdraw prosecutions with the consent of the Court

Section 494 of the Code of Criminal Procedure, 1898 states:

“Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried …”[3] (Emphasis mine)

This acts as a check and balance mechanism.

The Attorney General is the legal advisor to the Government

The website of the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs of Bangladesh mentions the following:

The President appoints the Attorney General

Article 64 of the Constitution of the People’s Republic of Bangladesh specifies that:

“The President shall appoint a person who is qualified to be appointed as a Judge of the Supreme Court to be Attorney-General for Bangladesh.”[4]

B. INDIA

The Public Prosecutor is in charge of criminal prosecutions

Section 24(1) of the Code of Criminal Procedure 1973 provides:

“For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.”[5] (Emphasis mine)

The Central/State Government(s), after consultation with the High Court, appoint the Public Prosecutor

See Section 24(1) of the Code of Criminal Procedure 1973 above.

This acts as a check and balance mechanism.

Public Prosecutors can only withdraw prosecutions with the consent of the Court

Section 321 of the Code of Criminal Procedure 1973 states:

“The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried …”[6] (Emphasis mine)

This acts as a check and balance mechanism.

The Attorney General is the legal advisor to the Government

Article 76(2) of the Constitution of India 1950 mentions the following:

“It shall be the duty of the Attorney-General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.”[7]

The President appoints the Attorney General

Article 76(1) of the Constitution of India 1950 specifies that:

“The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India.”[8]

C. JAMAICA

The Director of Public Prosecutions is in charge of criminal prosecutions

Section 94(3) of the Jamaican (Constitution) Order in Council 1962 provides:

“The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do—

a. to institute and undertake criminal proceedings against any person before any court other than a court-martial in respect of any offence against the law of Jamaica;

b. to take over and continue any such criminal proceedings that may have been instituted by any other person or authority, and

c. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.”[9] (Emphasis mine)

The Governor General appoints the Director of Public Prosecutions

The website of the Office of the Director of Public Prosecutions of Jamaica states:[10]

The Attorney General is the principal legal advisor to the Government

Section 79(1) of the Jamaican (Constitution) Order in Council 1962 mentions the following:

“There shall be an Attorney-General who shall be the principal legal adviser to the Government of Jamaica”[11]

The Governor General, on the advice of the Prime Minister, appoints the Attorney General

Section 79(2) of the Jamaican (Constitution) Order in Council 1962 specifies that:

“Power to appoint a person to hold or act in the office of Attorney-General and to remove from that office a person holding or acting in it shall, subject to subsection (4) of this section, be exercised by the Governor-General acting in accordance with the advice of the Prime Minister”[12]

D. KENYA

The Director of Public Prosecutions is in charge of criminal prosecutions

Article 157(6) of the Constitution of Kenya 2010 provides:

“The Director of Public Prosecutions shall exercise State powers of prosecution and may—

(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;

(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and

(c) subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).”[13] (Emphasis mine)

The President, on the nomination of the President and the approval of the National Assembly, appoints the Director of Public Prosecution

Article 157(2) of the Constitution of Kenya 2010 states:

“The Director of Public Prosecutions shall be nominated and, with the approval of the National Assembly, appointed by the President[14] (Emphasis mine)

This acts as a check and balance mechanism.

The Director of Public Prosecutions can only withdraw prosecutions with the permission of the Court

Article 157(8) of the Constitution of Kenya 2010 mentions the following:

“The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.”[15] (Emphasis mine)

This acts as a check and balance mechanism.

The Attorney General is the principal legal advisor to the Government

Article 156(4) of the Constitution of Kenya 2010 specifies that:

“The Attorney-General—

(a) is the principal legal adviser to the Government;

(b) shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; and

(c) shall perform any other functions conferred on the office by an Act of Parliament or by the President.”[16]

The President, on the nomination of the President and the approval of the National Assembly, appoints the Attorney General

Article 156(2) of the Constitution of Kenya 2010 provides:

“The Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.”[17]

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5 Things About Non-Delegable Duties

1. An exception to the general rule that an employer is not liable for the default or negligence of an independent contractor

In Datuk Bandar Dewan Bandaraya Kuala Lumpur v Ong Kok Peng & Anor [1993] 2 MLJ 234, the Supreme Court enunciated the following:

“While the rule that an employer of an independent contractor is not liable for the default or negligence of such contractor no doubt exists, there are exceptions, and it is outside the province of this judgment to elaborate all the exceptions but only briefly to deal with them except those which are directly concerned with the instant case.

The first exception is where an employer has not exercised care in selecting a competent contractor as was much pressed in argument in the present case. The second exception is a group of cases or situations when the duty to take care is said to be ‘non-delegable’. A non-delegable duty to take care means in effect that the employer would have to see to it that such duty of care is exercised, whether by his contractor or not, otherwise he would be equally liable as the contractor, in addition, in most cases, to the liability of his contractor.”[1] (Emphasis mine)

Denning LJ’s pronouncement in Cassidy v Ministry of Health [1951] 2 KB 343 is one of the earliest pronouncements on the concept of non-delegable duties:

“I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services.”

Denning LJ’s views were quoted approvingly by the Federal Court in Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 28 (“Dr Hari Krishnan”).[2]

2. Arises in two broad categories of cases

Lord Sumption in Woodland v Essex County Council [2013] UKSC 66 elaborated on ‘non-delegable duties’:

“6. English law has long recognised that non-delegable duties exist, but it does not have a single theory to explain when or why. There are, however, two broad categories of case in which such a duty has been held to arise. The first is a large, varied and anomalous class of cases in which the defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work. The early cases are concerned with the creation of hazards in a public place, generally in circumstances which apart from statutory authority would constitute a public nuisance: see Pickard v Smith (1861) 10 CB (NS) 470 (which appears to be the first reported case of a non-delegable duty), Penny v Wimbledon Urban District Council [1898] 2 QB 212 and Holliday v National Telephone Company [1899] 2 QB 392. In Honeywill and Stein Ltd v Larkin Brothers (London’s Commercial Photographers) Ltd [1934] 1 KB 191, the principle was applied more broadly to “extra-hazardous” operations generally. Many of these decisions are founded on arbitrary distinctions between ordinary and extraordinary hazards which may be ripe for re-examination. Their justification, if there is one, should probably be found in a special public policy for operations involving exceptional danger to the public. But their difficulties do not need to be considered further on these appeals, because teaching children to swim, while it unquestionably involves risks and calls for precautions, is not is not on any view an “extra-hazardous” activity. It can be perfectly satisfactorily analysed by reference to ordinary standards of care.

7. The second category of non-delegable duty is, however, directly in point. It comprises cases where the common law imposes a duty upon the defendant which has three critical characteristics. First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendant’s. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own. In these cases, the defendant is assuming a liability analogous to that assumed by a person who contracts to do work carefully. The contracting party will normally be taken to contract that the work will be done carefully by whomever he may get to do it: see Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 848 (Lord Diplock). The analogy with public services is often close, especially in the domain of hospital treatment in the National Health Service or education at a local education authority school, where only the absence of consideration distinguishes them from the private hospital or the fee-paying school performing the same functions under contract. In the law of tort, the same consequence follows where a statute imposes on the defendant personally a positive duty to perform some function or to carry out some operation, but he performs that duty by entrusting the work to some one else for whose proper performance he is legally responsible. In Morris v C.W. Martin & Sons Ltd [1966] 1 QB 716, 725-728, Lord Denning MR analysed the liability of a non-contractual bailee for reward in similar terms, as depending on his duty to procure that proper care was exercised in the custody of the goods bailed.” (Emphasis mine)

The above extract was partly summarised, and partly quoted by the Federal Court in Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685 (“Dr Kok Choong Seng”).[3]

3. Should be imposed only where it is fair, just and reasonable to do so

Raus Sharif CJ, in Dr Kok Choong Seng, adopted the proviso in Woodland v Essex County Council [2013] UKSC 66 and opined the following:

“… we see no reason why the doctrine of non- delegable duty should not continue to be applied in Malaysia, and we consider the guiding principles refined in Woodland as a useful starting point. Nevertheless, we hasten to stress that non-delegable duties impose more onerous obligations; it is worth reiterating the proviso in Woodland that such duties should be imposed only where it is fair, just and reasonable to do so based on the particular circumstances of the case, and developed incrementally from existing categories and consistently with underlying principles.”[4] (Emphasis mine)

4. Expressly recognised to be applicable in, amongst others, medical negligence cases

The Federal Court in Dr Hari Krishnan held:

“Where a hospital is held to owe a non-delegable duty to its patient to ensure that reasonable care is taken in his treatment, the hospital may be held liable to the patient if the duty is breached, regardless to whom performance of that duty is delegated.”[5]

5. Not fatal if it is not expressly pleaded, so long as the essence of the duty is pleaded

 In Kee Boon Suan & Ors v Adventist Hospital & Clinical Services (M) & Ors and other appeals [2018] 5 MLJ 321 (“Kee Boon Suan”), the Court of Appeal was of the view that the non-delegable duty of care must be expressly pleaded:

“[56] More importantly, we note that the issue of non-delegable duty of care was not even pleaded by the patient and her parents in the first place. Therefore, the issue ought not to have been considered by the learned JC when it was raised at the late stage of the submissions. We do not agree with the submissions of learned counsel for the patient and her parents who, in relying on the Federal Court decision in Tun Hussein Onn National Eye Hospital v Megat Noor Ishak bin Megat Ibrahim & 2 Others Civil Appeal No 01(f)-26-04 of 2015(W) (unreported) (FC), submits that even if ‘the plaintiff had not pleaded direct liability on the hospital’s part for negligence … the essence of a non-delegable duty have been pleaded’.

[57]  With respect, we are of the opinion that a claim made under the doctrine of non-delegable duty of care must be expressly pleaded against the hospital. Otherwise from a plain reading of the counterclaim of the patient and her parents, it is clear that their claim against the hospital is based on vicarious liability, but not on the cause of action of non-delegable duty of care.”[6] (Emphasis mine)

Kee Boon Suan’s decision on this point, however, is questionable in light of the Federal Court’s decision in Dr Hari Krishnan. The latter was decided 5 months before the former.

Raus Sharif CJ, in Dr Hari Krishnan, held:

“Since ‘the nature of a non-delegable duty is, in essence, a positive duty to ensure that reasonable care is taken’ (Dr Kok Choong Seng), we find that the essence of a non-delegable duty have been sufficiently pleaded.[7]

In Hemraj & Co Sdn Bhd & Anor v Tenaga Nasional Bhd & Ors [2022] MLJU 1307 (“Hemraj & Co”), the Court of Appeal was of a similar view:

“Even though the words ‘non-delegable duty of care’ was not expressly pleaded in paragraph 18 of the SOC, we find that the essence of the duty was sufficiently pleaded.”[8]

The Court of Appeal in Hemraj & Co also correctly pointed out that the Court of Appeal in Tenaga Nasional Bhd v Syarikat Bekalan Air Selangor Sdn Bhd & Anor [2018] 1 MLJ 810 made a finding on non-delegable duty of care against Syarikat Bekalan Air Selangor Sdn Bhd in the absence of the express pleading of the phrase ‘non-delegable duty of care’.[9]

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