Separation of Power for Public Prosecutor – Attorney General in the Harapan Action Plan

Separation of Power for Public Prosecutor – Attorney General in the Harapan Action Plan

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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5 Things About Holding Watching Briefs

1. Meant to only watch the proceedings

Datuk Mahadev Shankar JCA remarked the following in his article titled Watching Briefs — Indulgence, Right or Potential Estoppel? [1991] 1 MLJ clxi:

“In a trial whether criminal or civil, the only persons directly concerned with the process are the combatants. Only they have the right to tender evidence and make submissions. They alone will be bound by the orders of the judge and become liable for the costs of litigation.

In such a scenario a watching brief has no right whatsoever to do anything except watch the proceedings. He cannot be permitted to lead evidence nor can he question any of the witnesses. Nor can he address the judge on the merits of the case. All this for the simple reason that his client is not a party to the dispute, even if he has an interest in the outcome.” (Emphasis mine)

The above extract was quoted approvingly by Colin Sequerah J in Foo Tseh Wan v Toyota Tsusho (M) Sdn Bhd & Anor [2018] 9 MLJ 664.[1]

2. Need to obtain Court’s permission to address the Court

The High Court in MBf Capital Bhd & Anor v Tommy Thomas & Anor and other suits [1999] 1 MLJ 139 was of the view that:

“… there is a great difference between holding a watching brief and having a locus standi. In respect of the former, a party applying is invariably not a party to the suit and counsel given such leave to sit in the proceedings will have no say at all, save and except at the invitation of the court.”[2] (Emphasis mine)

In Public Prosecutor v Seeralan [1985] 2 MLJ 30, the Supreme Court held:

“… although addressing the court without permission is not a contempt it is certainly not polite to do so without permission. In polite circles such as the legal profession, this simple etiquette is expected.”[3]

In Mangaleswary a/p Ponnampalam v Giritharan a/l E Rajaratnam [2015] 5 MLJ 305, counsels holding watching brief requested for permission to address the Court.[4]

3. Can submit on the issues which arise in the case if granted permission by the Court

In Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585, the counsels holding watching brief submitted on the issues which arose in the case.[5]

This was also the case in DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v DKIM Holdings Sdn Bhd & Anor [2003] 2 MLJ 1.[6]

4. Can cross-examine witnesses during trial if granted permission by the Court

In Public Prosecutor v Seeralan [1985] 2 MLJ 30, the trial judge allowed the counsel holding watching brief to cross-examine witnesses during the trial of the matter:

“We agree with Mr. Param Cumaraswamy that merely to address the court without getting its permission did not constitute a contempt, especially when the respondent in this case had the court’s indulgence to cross-examine practically every witness. The records show that he had cross-examined the first five witnesses, and refrained from so doing only as regards witnesses Nos. 6 and 7.”[7] (Emphasis mine)

5. Cannot file applications in the proceedings

In Foo Tseh Wan v Toyota Tsusho (M) Sdn Bhd & Anor [2018] 9 MLJ 664 (“Foo Tseh Wan”), the learned High Court judge was of the following view:

“… it was patently wrong for the SCJ to have entertained the first respondent’s application let alone to have allowed such application. The issue very simply is one of locus standi which a party holding a watching brief does not possess.”[8] (Emphasis mine)

It remains to be seen whether:

(a) the appellate courts are of the same view as the High Court in Foo Tseh Wan; and

(b) a party holding watching brief could be “clothed” with locus standi to file an application in the proceedings, if granted permission by the Court to do so.

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On UMNO’s Plan For A General Election in 2022

Dato’ Seri Ismail Sabri bin Yaakob (“DSIS“), the Prime Minister of Malaysia, was recently reported as saying that he will announce the date for the dissolution of Parliament soon.[1]

DSIS was also reported as saying that the dissolution date will be decided together with UMNO President, Dato’ Seri Dr Ahmad Zahid bin Hamidi.[2]

UMNO recently reiterated its position that it wants the 15th General Election to be held in 2022.[3]

Some quarters have opposed having the 15th General Election in November and December this year due to anticipated floods.[4]

The anticipated floods could result in, amongst others, hardships for the people and logistical challenges for the Election Commission.

As a general rule, constitutionally, the Yang di-Pertuan Agong (“YDPA“) has to act on the advice of the Cabinet or the Minister acting under the general authority of the Cabinet[5] (usually the Prime Minister).

The main exceptions[6] are with regard to:

(a) the appointment of a Prime Minister;

(b) the withholding of consent to a request for the dissolution of Parliament;

(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting,

(d) any other case mentioned in this Constitution.

As mentioned above, specifically in relation to a request for the dissolution of Parliament, the YDPA has the discretion to grant or to withhold his consent to such a request.[7]

This is a matter in which “the YDPA is given absolutely the legal right to exercise his own discretion.”[8]

However, this request for the dissolution of Parliament could arguably be limited to cases whereby the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat.

Article 43(4) of the Federal Constitution uses language very similar to that of Article 40(2)(b) of the Federal Constitution:

“If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.” (Emphasis mine)

It could be then be argued that where the Prime Minister still commands the confidence of the majority of the members of the House of Representatives and the Prime Minister or the Cabinet advises the YDPA to dissolve Parliament, this is a matter in which the YDPA has to act on the advice given (“Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition”).[9]

Some have referred to the Federal Court’s pronouncement in Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener) [2010] 2 MLJ 285 (“Nizar”) to argue against the Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition.[10]

However, Nizar’s case was a case where there had been a loss of confidence of the majority.[11]

In a case where there has been a loss of confidence of the majority, at the Parliamentary level, Article 43(4) of the Federal Constitution will very clearly come into play and the Prime Minister cannot advice the YDPA to dissolve Parliament.

The Prime Minister in such a situation can either:

(a) request for the dissolution of Parliament; or

(b) tender the resignation of the Cabinet.

If the Prime Minister in such a situation opts to request for the dissolution of Parliament, as mentioned above, the YDPA would have the discretion to withhold his consent to the request.

In Dato’ Dr Abd Isa bin Ismail v Dato’ Abu Hasan bin Sarif & Anor [2013] 2 MLJ 449 (“Abd Isa”), granted that it is not a decision on the dissolution of the State Legislative Assembly, the Federal Court was of the view that the Sultan’s powers to prorogue and dissolve the State Legislative Assembly was exercised by the Sultan on the advice of the Executive Council.[12]

Abd Isa would arguably be more on point as there was no loss of confidence of the majority on the facts of the case.

The Federal Court’s passing remarks in Abd Isa would support the Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition.

Notwithstanding Abd Isa, the Report of the Federation of Malaya Constitutional Commission 1957[13] (“Reid Commission Report”) is problematic for the Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition.

Paragraph 69 of the Reid Commission Report states the following:

“We recommend that the duration of each Parliament should be five years subject to power of dissolution at any time within the life of the Parliament, and that the Constitutional responsibility for dissolving Parliament should rest with the Yang di-Pertuan Besar. Experience has shown that there are substantial objections to the Prime Minister or Government of the day having unrestricted power to insist on a dissolution of Parliament. A Prime Minister may ask for a dissolution in various circumstances and it is not possible to define the circumstances in which his request ought to be granted. Normally the Yang di-Pertuan Besar would accept the advice of his Prime Minister but he should not be bound to do so in all cases. He ought in a critical case to be free to decide what is in the best interests of the country. We recommend that if the Prime Minister ceases to command the confidence of the House of Representatives he must either vacate his office or ask for a dissolution. If the Prime Minister asks for a dissolution and the Yang di-Pertuan Besar refuses his request, then the Prime Minister must vacate his office.” (Emphasis mine)

It would appear that the Commissioners of the Reid Commission Report were in favour of the YDPA having discretion in the dissolution of Parliament in general (not only limited to cases where the Prime Minister no longer commands the confidence of the majority).

If that is the case, then the Reid Commission report could be in conflict with the obiter dicta in Abd Isa.

At the present moment, DSIS still commands the confidence of the majority of the members of the House of Representatives.

If DSIS or the Cabinet advises the YDPA to dissolve Parliament soon, it remains unclear whether this is a matter in which the YDPA has:

(a) to act on the advice given; or

(b) has the discretion to disregard the advice.

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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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