by Joshua Wu Kai-Ming | Mar 15, 2023 | Law
It is not common knowledge but once a ruling is made in the context of legal proceedings, be it substantive or procedural, the ruling must be adhered to and cannot be revisited by the same court.
Support for this trite proposition of law can be found in Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57 (“Hartecon”) whereby Gopal Sri Ram JCA (later FCJ) held the following:
“Once a judge makes a ruling, substantive or procedural, final or interlocutory, it must be adhered to and may not be reopened. Although the first decision was made on an interlocutory matter which was purely procedural in nature, it was nevertheless binding on the court and on all parties to the lis until its reversal on appeal.”[1] (Emphasis mine)
The ratio decidendi of Hartecon, on the reopening (or lack thereof) of a ruling that has been made, was referred to positively amongst others by:
(i) The Federal Court in Joseph bin Paulus Lantip & Ors v Unilever Plc [2018] supp MLJ 151;[2] and
(ii) The Court of Appeal in Kay Hian Pte Ltd v Ma Boon Lan [2003] 4 MLJ 603.[3]
In addition, the Court of Appeal in Westech Sdn Bhd (in voluntary liquidation) v Thong Weng Lock (as surviving partner of Thong Kee Trading Co) [2014] 3 MLJ 427 expressly stated that:
“… The case of Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57 is an authority for the principle that res judicata applies to a ruling on procedural as well as substantive issue.”[4] (Emphasis mine)
In Quantum Petroleum (M) Sdn Bhd & Anor v Manimaran Periasamy & Ors [2019] MLJU 1866 (“Quantum Petroleum”), Wong Kian Kheong J (now JCA) made in clear that parties are estopped from applying to a Court to revisit a ruling made by the same court:
“It is trite law that once a court has decided a matter regarding evidence and procedure during proceedings, all parties are estopped from applying to the same court to re-visit the matter.
…
Based on the above Court of Appeal decisions which are binding on me by reason of the stare decisis doctrine, the Plaintiffs are estopped from re-visiting the Ruling by way of Enc. 480.”[5] (Emphasis mine)
The rationale for this legal position was very aptly explained by Wong Kian Kheong J (now JCA) in Quantum Petroleum:
“If otherwise, before the conclusion of the trial of this case, all my rulings in respect of evidence and procedure can be subsequently challenged by any party. In such an event, an expeditious and economical disposal of this case cannot be attained. The RC has a three-fold objective (3 Objectives), namely to ensure a just, expeditious and economical disposal of cases – please see O 34 r 1(1)(b) RC and CELCOM (M) Bhd & Anor v Tan Sri Dato’ Tajudin bin Ramli & Ors and another case [2017] 4 AMR 418, at [19] and [20].”[6] (Emphasis mine)
The proper procedure would be to challenge the propriety of a ruling if/when the matter goes on appeal.
This can be seen from Gopal Sri Ram JCA’s pronouncement in Hartecon:
“Once a judge makes a ruling, substantive or procedural, final or interlocutory, it must be adhered to and may not be reopened. Although the first decision was made on an interlocutory matter which was purely procedural in nature, it was nevertheless binding on the court and on all parties to the lis until its reversal on appeal.”[7] (Emphasis mine)
Further, in Quantum Petroleum, Wong Kian Kheong J (now JCA) was also of the same view:
“I should add that the Plaintiffs have a right to challenge the Ruling as follows –
(a) after the trial of the Counterclaim has been concluded;
(b) this court delivers a decision against the Plaintiffs (Final Decision);
(c) the Plaintiffs appeal to the Court of Appeal against the Final Decision [Plaintiffs’ Appeal (Final Decision)]; and
(d) in the Plaintiffs’ Appeal (Final Decision), the Plaintiffs are entitled to submit that the Ruling has been made erroneously.”[8] (Emphasis mine)
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by Joshua Wu Kai-Ming | Feb 1, 2023 | Law
On 29th January 2023, a senior member of the Malaysian Bar, Datuk Seri Gopal Sri Ram (“GSR”) passed away.[1]
GSR was a former Court of Appeal and Federal Court judge and during his time on the bench, GSR contributed massively to the development of Malaysia’s constitutional law.
This article intends to highlight some of GSR’s notable constitutional cases and dicta during his time on the bench, and is by no means exhaustive.
1. Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 (FC):
“[5] … Provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively. Take art 10(2)(c). It says that ‘Parliament may by law impose … (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality’. Now although the article says ‘restrictions’, the word ‘reasonable’ should be read into the provision to qualify the width of the proviso. The reasons for reading the derogation as ‘such reasonable restrictions’ appear in the judgment of the Court of Appeal in Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia [2006] 6 MLJ 213; [2007] 1 CLJ 19 which reasons are now adopted as part of this judgment.” (Emphasis mine)
“[8] … it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional. Whether a particular feature is part of the basic structure must be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution. See Keshavananda Bharati v State of Kerala AIR 1973 SC 1461.” (Emphasis mine)
“[12] … The expression ‘morality’ is not defined by the Constitution. However, in Manohar v State of Maharashtra AIR 1984 Bom 47 (a case cited by learned senior federal counsel) it was held that morality in the equipollent Indian Constitution art 19(2) and (4) :
is in the nature of public morality and it must be construed to mean public morality as understood by the people as a whole.” (Emphasis mine)
“[13] … Article 10 contains certain express and, by interpretive implication, other specific freedoms. For example, the freedom of speech and expression are expressly guaranteed by art 10(1)(a). The right to be derived from the express protection is the right to receive information, which is equally guaranteed. See Secretary, Ministry of Information and Broadcasting, Government of India v Cricket Association of Bengal AIR 1995 SC 1236.” (Emphasis mine)
“[19] Accordingly, when state action is challenged as violating a fundamental right, for example, the right to livelihood or the personal liberty to participate in the governance of the Malaysian Bar under art 5(1), art 8(1) will at once be engaged. When resolving the issue, the court should not limit itself within traditional and narrow doctrinaire limits. Instead it should, subject to the qualification that will be made in a moment, ask itself the question: is the state action alleged to violate a fundamental right procedurally and substantively fair. The violation of a fundamental right where it occurs in consequence of executive or administrative action must not only be in consequence of a fair procedure but should also in substance be fair, that is to say, it must meet the test of proportionality housed in the second, that is to say, the equal protection limb of art 8(1). However, where the state action is primary or secondary legislation, that is to say, an Act of Parliament or subsidiary legislation made by the authority of Parliament, the test of constitutionality is only based on substantive fairness: no question arising on whether the legislation is the product of a fair procedure. This is because the doctrine of procedural fairness does not apply to legislative action of any sort. See Bates v Lord Hailsham of St Marylebone & Ors [1972] 1 WLR 1373; Union of India v Cynamide India Ltd AIR 1987 SC 1802.”
“[21] Article 8(1) provides that: ‘All persons are equal before the law and entitled to the equal protection of the law.’ As may be seen, the article guarantees two separate and distinct rights, namely, (a) equality before the law; and (b) equal protection of the law. It cannot be over emphasised that in accordance with well settled principles of constitutional interpretation each of these rights must be treated as a separate and distinct right despite an overlap as will be seen later in this judgment. Indeed, each right is derived from a distinctly different source. The framers of our Constitution (like the framers of the Indian Constitution) derived the equality clause from the Constitution of the Irish Free State. The equality doctrine in reality is drawn from Dicey’s rule of law one of the pillars of which is that persons are equal before the law.” (Emphasis mine)
2. Shamim Reza bin Abdul Samad v Public Prosecutor [2011] 1 MLJ 471 (FC):
“[3] … We therefore accept that the right to a fair trial is a constitutionally guaranteed right.” (Emphasis mine)
3. Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301 (FC):
“[8] In the second place, the Constitution is a document sui generis governed by interpretive principles of its own. In the forefront of these is the principle that its provisions should be interpreted generously and liberally. On no account should a literal construction be placed on its language, particularly upon those provisions that guarantee to individuals the protection of fundamental rights. In our view, it is the duty of a court to adopt a prismatic approach when interpreting the fundamental rights guaranteed under Part II of the Constitution. When light passes through a prism it reveals its constituent colours. In the same way, the prismatic interpretive approach will reveal to the court the rights submerged in the concepts employed by the several provisions under Part II. Indeed the prismatic interpretation of the Constitution gives life to abstract concepts such as ‘life’ and ‘personal liberty’ in art 5(1).” (Emphasis mine)
“[12] … A court when interpreting the other provisions of our Constitution, in particular, those appearing in Part II thereof, must do so in the light of what has been correctly referred to as ‘the humanising and all pervading provisions of art 8(1)’ (see Barat Estates Sdn Bhd & Anor v Parawakan a/l Subramaniam & Ors [2000] 4 MLJ 107).
…
The effect of art 8(1) is to ensure that legislative, administrative and judicial action is objectively fair. It also houses within it the doctrine of proportionality which is the test to be used when determining whether any form of state action (executive, legislative or judicial) is arbitrary or excessive when it is asserted that a fundamental right is alleged to have been infringed. See Om Kumar v Union of India AIR 2000 SC 3689.” (Emphasis mine)
“[17] … It is clear from this passage that the rules of natural justice, which is the procedural aspect of the rule of law, is an integral part of arts 5(1) and 8(1). In short, procedural fairness is incorporated in these two articles.” (Emphasis ours)
4. Palm Oil Research and Development Board Malaysia & Anor v Premium Vegetable Oils Sdn Bhd & Another Appeal [2005] 3 MLJ 97 (FC):
“42 … It is the solemn duty of the judicial arm of Government — the courts who are the guardians of constitutional rights – to interpret the fundamental rights provisions in Part II of the Constitution prismatically, so that our citizens obtain the full benefit and value of those rights. And it is in this simple way, through the exercise of the court’s interpretive jurisdiction that our public law gains momentum. Accordingly, it cannot be over-emphasised that on no account should our courts adopt a narrow and pedantic approach to constitutional interpretation.” (Emphasis mine)
“48 In the context of the present appeal, it is art 8(1), particularly the second limb of that Article, which is the relevant constitutional provision which houses the ultra vires doctrine.
49 Article 8(1) has two limbs. The first limb guarantees equality before the law. In other words, it requires fairness in all forms of State action.
…
50 The second limb guarantees equal protection of the law. This is the limb directly relevant to the present appeal. The act or omission of a member of the administration (whether a Minister or a civil servant) which is either: (i)�beyond the power conferred upon him or her by an Act of Parliament; or (ii) constitutes an abuse of that power, denies to the person affected thereby, equal protection of the law and consequently runs foul of art 8(1). Accordingly, the doctrine of ultra vires in respect of acts whether purely administrative or in the exercise of a power to produce delegated legislation finds its place within the second limb of art 8(1).” (Emphasis mine)
“61 In Malaysia, the Federal Constitution has entrusted the law making power to Parliament and the State Assembly of each of the several States of the Federation. While the courts through the common law recognise the power of Parliament to delegate some of its legislative power, it is equally the constitutional duty of the courts to ensure that no excessive delegation takes place. Hence the well settled principle that a provision in a statute conferring power on a member of the executive to enact subsidiary legislation must be construed strictly. This is particularly so where the subsidiary legislation is one that imposes a financial levy — call it a tax or charge or cess or whatever you may — upon the whole or any section of the public.” (Emphasis mine)
Note: GSR, though then a Court of Appeal judge, was empaneled to sit in a Federal Court hearing pursuant to Article 122(2) of the Federal Constitution.
5. Fung Beng Tiat v Marid Construction Co [1996] 2 MLJ 413 (FC):
“First, it is crystal clear from art 121 of the Federal Constitution that there are two separate High Courts in Malaysia exercising distinct territorial jurisdiction over different geographical areas of the country. There is the High Court in Malaya and there is the High Court in Sabah and Sarawak. Each has jurisdiction over disputes that arise within its territory. As presently advised, there is absent in any Federal legislation that confers power upon the one High Court to transfer proceedings to the other.” (Emphasis mine)
Note: GSR, though then a Court of Appeal judge, was empaneled to sit in a Federal Court hearing pursuant to Article 122(2) of the Federal Constitution. GSR also delivered the judgment of the Federal Court in this case.
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by Joshua Wu Kai-Ming | Jan 10, 2023 | Law
Tjong Very Sumito and Others v Antig Investments Pte Ltd [2009] 4 SLR 732 (“Tjong Very Sumito”) was a Singapore Court of Appeal decision which involved an appeal in relation to an application for a stay of proceedings in favour of arbitration, pursuant to Section 6 of the International Arbitration Act 1994.[1]
The Singapore Court of Appeal held inter alia:
“(2) If the arbitration agreement provided for arbitration of “disputes”, then the subject matter of the proceedings would fall outside the terms of the arbitration agreement if: (a) there was no “dispute”; or (b) where the alleged “dispute” was unrelated to the contract which contained the arbitration agreement.
…
(4) In line with the prevailing philosophy of judicial non-intervention in arbitration, the court would interpret the word “dispute” broadly, and would readily find that a dispute existed unless the defendant had unequivocally admitted that a claim was due and payable …”[2] (Emphasis mine)
The legal proposition put forth in Tjong Very Sumito was that that if a defendant unequivocally admitted that a claim was due and payable, there would be no “dispute” between the parties and the subject matter of a proceedings would fall outside the terms of an arbitration agreement (“Impugned Legal Proposition”).
Consequently, in such a situation, an application for stay of proceedings in favour of arbitration would fail.
The Impugned Legal Proposition was recently applied by our High Courts in, amongst others:
(a) CHE Group Berhad v Dato Kweh Team Aik [2019] 1 LNS 1292, at paragraphs 48 to 50;[3]
(b) Delta-Sport Handelskontor GMBH & Anor v Messrs Harjit Sandhu Wan & Associates & Anor [2022] MLJU 875, at paragraph 10; and
(c) ICFI Limited v Bishopgate Capital Limited & Anor [2020] 1 LNS 2192, at paragraph 12.
Pre-Amendment to the Arbitration Act 2005
Prior to the amendment to Section 10(1) of the Arbitration Act (“AA”) 2005, the provision read as follows:
“(1) The court before which proceedings brought in respect of a matter which is the subject matter of an Arbitration Agreement shall, where party makes an application before taking any other step in the proceedings, stay those proceedings and refer the parties to arbitration unless it finds:
(a) that the agreement is null and void, inoperative or incapable of being performed; or
(b) that there is in fact no dispute between the parties with regard to the matters to be referred.” (Emphasis mine)
Pre-amendment to Section 10 of the AA 2005, the courts were required to consider whether “there is in fact no dispute between the parties with regard to the matters to be referred”.
If there was in fact no dispute between the parties with regard to the matters to be referred, the courts did not need to stay the proceedings and refer the parties to arbitration.
The Impugned Legal Proposition would have been relevant to the application of the Section 10(1) of the AA 2005 pre-amendment.
Post-Amendment to the Arbitration Act 2005
The Arbitration (Amendment) Act 2011,[4] which came into force on 1st July 2011,[5] inter alia, amended Section 10(1) of the AA 2005.
Post-amendment, Section 10(1) of the AA 2005 read (and still reads) as follows:
“(1) A court before which proceedings are brought in respect of a matter which is the subject of an arbitration agreement shall, where a party makes an application before taking any other steps in the proceedings, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.”[6]
Limb (b) of the pre-amendment Section 10(1) of the AA 2005 has been removed.
This would mean that the courts are no longer required to consider whether “there is in fact no dispute between the parties with regard to the matters to be referred”.
As such, post-amendment to Section 10(1) of the AA 2005, Tjong Very Sumito is no longer good law where the Impugned Legal Proposition is concerned.
The Federal Court in Tindak Murni Sdn Bhd v Juang Setia Sdn Bhd and another appeal [2020] 3 MLJ 545 (“Tindak Murni”) referred to Tjong Very Sumito as an example of limb (b) prior to the amendment to Section 10(1) of the AA 2005:
“Prior to the amendment to s 10 the courts expended considerable time and effort in determining whether a ‘dispute’ subsisted by virtue of the earlier wording of s 10:
…
(See for example Tjong Very Sumito and others v Antig Investments Ptd Ltd [2009] 4 SLR 732; [2009] SGCA 41 which stated that ‘if it was at least arguable that the matter is the subject of the arbitration agreement, then a stay of proceedings should be ordered it is only in the clearest of cases that the Court ought to make a ruling on the inapplicability of an arbitration agreement’. This resulted in the courts undertaking an exercise of determining whether a dispute existed between the contracting parties).
With the removal of limb (b) however, the issue of the subsistence or otherwise of a dispute between the parties is rendered obsolete and irrelevant.”[7] (Emphasis mine)
Since the Federal Court in Tindak Murni held that the issue of the subsistence or otherwise of a dispute between the parties is rendered obsolete and irrelevant, by implication, the Impugned Legal Proposition is no longer correct nor applicable within our legislative framework.
The Federal Court in Tindak Murni also expressly held the following:
“… under s 10 of the Arbitration Act 2005 as it presently stands, there is no question of the court entering into the arena of whether or not a ‘dispute’ subsists between the parties. The role of the court is simply as set out in s 10, which we have explained in extenso above.
…
The position stated above is therefore trite, namely that the court is not to enquire or investigate whether there subsists a dispute warranting referral to arbitration. That is a matter for the consideration and determination of the arbitral tribunal.”[8] (Emphasis mine)
Further, the Impugned Legal Proposition is clearly inconsistent with the Federal Court’s decision in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417 whereby it was held:
“… The court is no longer required to delve into the details of the dispute or difference (see TNB Fuel Services Sdn Bhd). In fact the question as to whether there is a dispute in existence or not is no longer a requirement to be considered in granting a stay under s 10(1). It is an issue to be decided by the arbitral tribunal.”[9] (Emphasis mine)
In light of the above, Tjong Very Sumito is no longer good law where the Impugned Legal Proposition is concerned.
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by Joshua Wu Kai-Ming | Dec 13, 2022 | Law, Politics
Recently, Parti Pribumi Bersatu Malaysia (Bersatu)’s then Sabah chief, Datuk Seri Panglima Haji Hajiji bin Noor, announced that the leaders of Bersatu Sabah unanimously decided to leave the party.[1]
This departure includes the departure of the following elected representatives from Bersatu’s Sabah chapter:[2]
(i) Datuk Armizan Mohd Ali (Papar)
(ii) Khairul Firdaus Akbar Khan (Batu Sapi)
(iii) Datuk Matbali Musah (Sipitang)
(iv) Datuk Jonathan Yasin (Ranau)
(collectively referred to as the “Bersatu Sabah MPs”).
The question at hand is whether the Bersatu Sabah MPs are required to vacate their seats under the anti-hopping provision in the Federal Constitution.[3]
Article 49A(1) of the Federal Constitution, which came into operation on 5th October 2022,[4] provides the following:
“(1) Subject to the provisions of this Article, a member of the House of Representatives shall cease to be a member of that House and his seat shall become vacant immediately on a date a casual vacancy is established by the Speaker under Clause (3) if—
(a) having been elected to the House of Representatives as a member of a political party—
(i) he resigns as a member of the political party; or
(ii) he ceases to be a member of the political party.”[5] (Emphasis mine)
Some are of the view that by leaving Bersatu, the Bersatu Sabah MPs need to vacate their seats.[6]
Meanwhile, others are of the view that the Bersatu MPs need not vacate their seats despite leaving Bersatu.[7]
The definition of “political party” for the purposes of the Federal Constitution “includes a coalition of such societies which has been registered under any federal laws.”[8]
Gabungan Rakyat Sabah (“GRS”) is an official coalition which has been registered with the Registrar of Societies since March 2022.[9]
This would mean that GRS is a “political party” for the purposes of the Federal Constitution, including for the purposes of Article 49A.
It is undisputed that the Bersatu Sabah MPs were elected to the House of Representatives as members of GRS.[10]
As such, the issue to be decided then is whether the Bersatu Sabah MPs have:
(i) resigned as a member of GRS; or
(ii) ceased to be a member of GRS.
Based on the information available at the time of writing, the former appears to be unlikely.
As for the latter, if by leaving Bersatu, the Bersatu Sabah MPs cease to be members of GRS, the Bersatu Sabah MPs would have to vacate their seats pursuant to Article 49A(1)(a)(ii) of the Federal Constitution.
This would occur where, for example, GRS’ constitution does not allow the Bersatu Sabah MPs to remain as members of the coalition in light of their departure from a component party of the coalition.
However, the Bersatu Sabah MPs need not vacate their seats if they can remain as members of GRS despite leaving Bersatu.
This would occur where, for example, the Bersatu Sabah MPs have direct/individual membership of GRS[11] or because GRS’ constitution allows them to remain as members of the coalition notwithstanding their departure from a component party of the coalition.
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by Joshua Wu Kai-Ming | Dec 7, 2022 | Law, Politics
For the purposes of the 15th General Elections (“GE15”), the Pakatan Harapan coalition launched the Harapan Action Plan (“HAP”).[1]
At page 40 of the HAP, the Pakatan Harapan coalition outlined that it intends to separate the roles and responsibilities of the Public Prosecutor from the Attorney General (“the Separation”):
The Separation is not a novel one as it was mooted in Pakatan Harapan’s manifesto for the 14th General Elections.[2]
Unfortunately, despite being successful in the 14th General Elections, the Separation did not materialise during the Pakatan Harapan coalition’s 22 months in power.[3]
In fact, there was controversy surrounding some of the prosecutorial decisions made when Tan Sri Tommy Thomas (Pakatan Harapan coalition’s choice for Attorney General)[4] was the Attorney General.[5]
Post-GE15, Dato’ Seri Anwar bin Ibrahim (Pakatan Harapan’s GE15 candidate for Prime Minister) has been sworn in as the 10th Prime Minister of Malaysia[6] and the current Federal Government is in effect a Pakatan Harapan coalition-led government.
It is now time for Pakatan Harapan to fulfill its plans in the HAP. One of the major institutional reforms planned in the HAP is the Separation.
Some possible models for implementing the Separation can be gleaned from Commonwealth jurisdictions such as Bangladesh, India, Jamaica, and Kenya.[7]
Legally, the Separation would require a constitutional amendment to inter alia Article 145 of the Federal Constitution.[8]
Such a constitutional amendment would require two third majority as per Article 159(3) of the Federal Constitution.[9]
The current Federal Government, led by Dato’ Seri Anwar bin Ibrahim, at the time of writing, appears to have two third majority support in the Dewan Rakyat (lower house of Parliament).[10]
The Pakatan Harapan coalition thus has a golden opportunity to bring about major institutional reform by passing a constitutional amendment act to implement the Separation.
Post-Script: Dato’ Sri Azalina binti Othman Said, the Minister in the Prime Minister’s Department (Law and Institutional Reform), announced on 7th December 2022 that the first steps for the Separation have been taken. [11]
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