Misattribution by the majority in Dahlia Dhaima?

Misattribution by the majority in Dahlia Dhaima?

In Majlis Agama Islam Selangor v Dahlia Dhaima bt Abdullah and another appeal [2023] 2 MLJ 897 (“Dahlia Dhaima”), Mohd Nazlan JCA (in delivering the majority judgment of the court) remarked the following in relation to the concept of ‘judicial estoppel’:

“Related to this, in another decision of a Court of Appeal in Zulpadli bin Mohammad & Ors v Bank Pertanian Malaysia Bhd [2013] 2 MLJ 915 it was explained that the rationale of judicial estoppel is to prevent intentional inconsistency and to protect the court from the perversion of judicial machinery.”[1]

(“Impugned Remarks”)

Zulpadli bin Mohammad & Ors v Bank Pertanian Malaysia Bhd [2013] 2 MLJ 915 (“Zulpadli”) was a decision of the Court of Appeal which in fact, involved the application of judicial estoppel.

However, with all due respect to the majority in Dahlia Dhaima, the Court of Appeal in Zulpadli did not explain the rationale of ‘judicial estoppel’.

In fact, the term ‘estoppel’ does not appear anywhere in the written judgment in Zulpadli and the term ‘estopped’ only appears in paragraph 22 of the written judgment in Zulpadli:

“The respondent’s own admission in the earlier suit as well as the amended statement of claim in the present suit show that the appellants were innocent victims as much as the respondent was. The respondent is estopped from taking a position different from that pleaded in its defence in the earlier suit.”[2] (Emphasis mine)

The Impugned Remarks, which the majority in Dahlia Dhaima attributed to the Court of Appeal in Zulpadli, is similar to the Court of Appeal’s pronouncements in Peguam Negara Malaysia v Nurul Izzah bt Anwar & Ors [2017] MLJU 273 (“Nurul Izzah”):

“… The essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery.”[3]

The majority in Dahlia Dhaima, referred to the Court of Appeal’s decision in Sykt Rodziah (sued as a firm) v Malayan Banking Bhd [2021] 5 MLJ 688 (“Sykt Rodziah”):

“The pleadings in the MAIWP Summons are as such a form of judicial admission which thus operate to prevent or estop the respondent from adopting a different stance. In a recent decision of this court in Sykt Rodziah (sued as a firm) v Malayan Banking Bhd [2021] 5 MLJ 688; [2021] 5 CLJ 170 it was held that a party is estopped from taking a position different from what was pleaded in its earlier suit or changing its stance in another action. The party’s admissions in pleadings in the earlier suit would amount to judicial admissions admissible against it.”[4] (Emphasis mine)

The Court of Appeal in Sykt Rodziah referred to the Court of Appeal’s decision in Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 wherein the latter referred to Zulpadli and Nurul Izzah:

“The case of Zulpadli was referred to by the Court of Appeal in Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 where Idrus Harun JCA (as His Lordship then was), stated at p 75 as follows:

[17] Also cited by learned counsel in the course of his oral submission on this point is this court’s decision in the case of Zulpadli bin Mohammad & Ors v Bank Pertanian Malaysia Bhd [2013] 2 MLJ 915 in which it was held that the respondent’s own admission in the earlier suit as well as the amended statement of claim in the present suit showed that the appellants were innocent victims as much as the respondent was. The respondent was estopped from taking a position different from that pleaded in its defence in the earlier suit. Clearly, the essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery. Judicial estoppel seeks to address the incongruity of allowing a party to assert a position in one court and the opposite in another tribunal (Peguam Negara Malaysia v Nurul Izzah bt Anwar & Ors [2017] MLJU 273). (see also) (Emphasis added.)”[5] [Emphasis mine]

Having in mind the foregoing, it is possible that the majority in Dahlia Dhaima misattributed the explanation of ‘judicial estoppel’ to Zulpadli when the same should have been attributed to Nurul Izzah.

If indeed there was misattribution, such misattribution risks muddying judicial precedent on ‘judicial estoppel’. Consequently, the remarks of the majority in Dahlia Dhaima vis-a-vis the Impugned Remarks should be treated cautiously.

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Misattribution by the majority in Dahlia Dhaima?

4 Things About The Right To Privacy

1. Recognised as a fundamental human right

In Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun Yean & Anor [2020] 4 MLJ 581, a case involving secret trusts, the Federal Court held the following:

“The concept of secret trust is consistent with the fundamental human right of privacy.”[1] (Emphasis mine)

Rhodzariah Bujang JC (now FCJ) in Chong Chieng Jen v Mohd Irwan Hafiz bin Md Radzi & Anor [2009] 8 MLJ 364, had the occasion to say:

A person’s privacy and the right to his property are very basic rights of a man and that to his property is even enshrined under art 13(1) of the Federal Constitution.”[2] (Emphasis mine)

See also Datuk Seri Anwar bin Ibrahim v Utusan Melayu (M) Bhd & Anor [2013] 3 MLJ 534 (HC), at paragraph 78.

2. Recognised as being a constitutional right

Gopal Sri Ram FCJ in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 was of the view that:

“It is patently clear from a review of the authorities that ‘personal liberty’ in art 5(1) includes within its compass other rights such as the right to privacy (see Govind v State of Madhya Pradesh AIR 1975 SC 1378).”[3] (Emphasis mine)

In Genting Malaysia Bhd v Pesuruhjaya Perlindungan Data Peribadi & Ors [2022] 11 MLJ 898, a decision which involved provisions of the Personal Data Protection Act 2010 and the Income Tax Act , the High Court recognised the right to privacy as a constitutionally and statutorily protected right:

“In the upshot, this court rejects the manner in which the respondents read the provisions of the PDPA and the ITA which would infringe upon the right to privacy safely guarded by the FC. There is an abdication of statutory duty entrusted by the Parliament on the part of the commissioner/deputy commissioner in protecting personal data of the applicant’s customers and in addressing the real issues in this case. Despite the clear and binding decision of the Court of Appeal in the Malaysian Bar case, the Revenue continues to assert unlawfully that they have the absolute power and unfettered discretion under the ITA to encroach the constitutionally and statutorily protected right to privacy by attempting to have access to the applicant’s customer database without any shred of evidence that any particular individual being the applicant’s customer has engaged in any under-declaration of income or any offence under the ITA.”[4] (Emphasis mine)

3. A multidimensional concept

 In Toh See Wei v Teddric Jon Mohr & Anor [2017] 11 MLJ 67 (“Toh See Wei”), the learned High Court judge made the following observations about the right to privacy:

“[47]  The right to privacy is a multidimensional concept. In this modern society, right to privacy has been recognised both in the eye of law and in common parlance. The right to privacy refers to the specific right of an individual to control the collection, use and disclosure of personal information. Personal information could be in the form of personal interests, habits and activities, family records, education records, communication (including mail and telephone) records, medical records, to name a few. An individual could easily be harmed by the existence of computerised data about him/her which is inaccurate or misleading and which could be transferred for an unauthorised third party at high speed at very little cost. Innovative technologies make personal data easily accessible and communicable and there is inherent conflict between right to privacy and data protection.

[48]  In short, the right to privacy means the right to be let alone, the right of a person to be free from unwarranted publicity and the right to live without undue interference by the government or any private individual in matters with which the public is not concerned. The ‘right to privacy’ is recognised as basic human right in article 12 of the Universal Declaration of Human Rights 1948. Malaysia recognises the rights and liberties of the individual in the Federal Constitution as part of human rights protected by the supreme law of the land.”[5] (Emphasis mine)

4. Could possibly give rise to the tort of invasion of privacy

In Lee Ewe Poh v Dr Lim Teik Man & Anor [2011] 1 MLJ 835, the High Court was of the view that invasion of privacy is an actionable tort:

“Although Maslinda Ishak‘s case is not directly on point, the fact remains that the High Court in so finding has departed from the old English law that invasion of privacy is not an actionable tort and our Court of Appeal indirectly, though this issue was not canvassed, seems to endorse such cause of action when the pleadings were specifically referred to and the Court of Appeal did not overrule invasion of privacy as a cause of action on ground that it is not one in line with the English law. Since such a cause of action has been accepted as a cause of action under our common law, it is thus permissible for a plaintiff to found his/her action on it. Drawing an analogy of this Court of Appeal case, I am inclined to hold the view that since our courts especially the Court of Appeal have accepted such an act to be a cause of action, it is thus actionable.”[6] (Emphasis mine)

Stephen Chung JC (later JCA) in Sherinna Nur Elena bt Abdullah v Kent Well Edar Sdn Bhd [2014] 7 MLJ 298 (“Sherinna Nur Elena”) appeared to be open to the actionability of the tort of invasion of privacy:

“… the plaintiff is at liberty to sue the defendant for invasion of her privacy …”[7]

However, on the facts of Sherinna Nur Elena, the learned Judicial Commissioner was of the view that to “to allow the action to proceed to trial will amount to an abuse of the process of the court.”[8]

Notwithstanding the above, a number of High Court decisions took a contrary position (namely that invasion of privacy is not an actionable tort):

(a) Mohamad Izaham bin Mohamed Yatim v Norina bt Zainol Abidin & Ors [2017] 7 MLJ 772, per Vazeer Alam Mydin J (now JCA): :

“However, in the face of a direct and express affirmation by the Court of Appeal in Dr Bernadine Malini Martin v MPH Magazine Sdn Bhd & Ors and another appeal [2010] 5 MLJ 755; [2010] 7 CLJ 525 (CA) (a case later to Maslinda Ishak) that the law does not recognise invasion of privacy as an actionable tort, I am not prepared to make a definitive ruling to the contrary. In as much as I may agree that this area of the law is ripe for reform, I am bound by the doctrine of stare decisis to apply the law as it stands, and the law as it stands now is that, in the circumstance of the pleaded facts, no such actionable tort for invasion of privacy can arise.”[9] (Emphasis mine)

(b) John Dadit v Bong Meng Chiat & Ors [2015] MLJU 1961, per Yew Jen Kie J:

“I am of the view that the Plaintiff’s cause of action in tort of privacy must fail for the reason that the Common Law in England does not recognize any right to privacy nor tort of privacy. Also, there is no written law in force in Malaysia for such a right to privacy nor tort of invasion of privacy.”[10] (Emphasis mine)

(c) Ultra Dimension Sdn Bhd v Kook Wei Kuan [2001] MLJU 751 (“Ultra Dimension”), per Faiza Thamby Chik J:

“Based on the above authorities, I am of the view that it is clear that English Common Law does not recognise privacy rights and it therefore follows that invasion of privacy rights does not give rise to cause of action. As English Common Law is applicable in Malaysia pursuant to Section 3 of the Civil Law Act 1956, privacy rights which is not recognised under English Law is accordingly not recognised under Malaysian law. Thus, the Respondent does not have the right to institute an action against the Appellant for invasion of privacy rights. It is noteworthy that invasion of privacy rights via taking and publication of photographs (as in the facts of the instant appeal) is also not recognised in countries such as Australia and the United States of America. Page 183 in the book of “Torts in the Nineties — Nicholas J Mullany” touched on privacy rights in Australia and the United States …”[11] (Emphasis mine)

(d) Lew Cher Phow @ Lew Cha Paw & Ors v Pua Yong Yong Anor Pua Keng Siang [2009] MLJU 1331, a decision on an application for permanent injunction,[12] Kamardin bin Hashim JC (later JCA) relied upon the High Court’s decision in Ultra Dimension[13] to support his decision to dismiss the application.

At the present moment, it is unclear whether the tort of invasion of privacy is an actionable tort within Malaysian jurisprudence.

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Misattribution by the majority in Dahlia Dhaima?

Is Promoting A Multiracial Country Contrary to the Federal Constitution?

Tun Dr. Mahathir bin Mohamad (“Tun M”), the 4th and 7th Prime Minister of Malaysia, recently courted controversy when he said the following:

“4. Sebaliknya bertentangan perlembagaan ialah mempromosi negara berbilang bangsa.”[1]

(“Impugned Statement”)

My loose translation of the Impugned Statement is as follows:

“4. Conversely [it is] contrary to the constitution [to promote] a multiracial country.”

Other legally trained individuals have provided their opinions in rebuttal to the substance of the Impugned Statement.[2]

With all due respect to Tun M, the Impugned Statement is constitutionally baseless as:

(a) The Federal Constitution expressly envisages Malaysia as a multiracial country;

(b) The Federal Constitution impliedly envisages Malaysia as a multiracial country; and

(c) The Judiciary, in deciding on cases involving constitutional law, has long recognised that Malaysia is a multiracial country.

The Federal Constitution expressly envisages Malaysia as a multiracial country

Article 161A(7) of the Federal Constitution lists out the different races for the purposes of the definition of “native” in Article 161A(6) as being indigenous to Sarawak:

“The races to be treated for the purposes of the definition of “native” in Clause (6) as indigenous to Sarawak are the the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabits, Kayans, Kenyahs (including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.” (Emphasis mine)

Article 161E(2)(d) of the Federal Constitution provides the following:

“No amendment shall be made to the Constitution without the concurrence of the Yang di-Pertua Negeri of the State of Sabah or Sarawak or each of the States of Sabah and Sarawak concerned, if the amendment is such as to affect the operation of the Constitution as regards any of the following matters:

(d) religion in the State, the use in the State or in Parliament of any language and the special treatment of natives of the State;” (Emphasis mine)

There are other provisions in the Federal Constitution which provide for the natives of Sabah and Sarawak, and distinguish them from the Malays. An example is Article 153 on the “Reservation of quotas in respect of services, permits, etc., for Malays and natives of any of the States of Sabah and Sarawak.”

The references in the Federal Constitutions to “natives” and Article 161A(7) of the Federal Constitution’s list of races demonstrate that there are individuals of different races and therefore Malaysia is a multiracial country.

The Federal Constitution impliedly envisages Malaysia as a multiracial country.

Article 8(2) of the Federal Constitution provides that:

Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.” (Emphasis mine)

Article 12(1) of the Federal Constitution states the following:

“(1) Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth—

(a) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or

(b) in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside the Federation)” [Emphasis mine]

Article 136 of the Federal Constitution is worded as follows:

All persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially.” (Emphasis mine)

Section 18 of the Eighth Schedule specifies that:

All persons of whatever race in the same grade of the service of the State, shall, subject to the terms and conditions of their employment, be treated impartially.” (Emphasis mine)

The specific references to ‘race’ in Articles 8(2), 12(1), and 136 of the Federal Constitution, and Section 18 of the Eighth Schedule to the Federal Constitution implies that there are individuals of different races and therefore Malaysia is a multiracial country.

If Malaysia were, say, a homogenous country, there would be no need for any specific reference to ‘race’ since all citizens would be of the same race.

The Judiciary, in deciding on cases involving constitutional law, has long recognised that Malaysia is a multiracial country

In Meor Atiqulrahman bin Ishak (an infant, by his guardian ad litem, Syed Ahmad Johari bin Syed Mohd) & Ors v Fatimah bte Sihi & Ors [2006] 4 MLJ 605, a decision of the Federal Court which involved Articles 5 and 11(1) of the Federal Constitution, Tun Abdul Hamid Mohamad FCJ (later CJ) observed that Malaysia is in fact multiracial:

Whether we like it or not, we have to accept that Malaysia is not the same as a Malay State prior to the coming of the British. She is multi-racial, multi-cultural, multi-lingual and multi-religious.”[3] (Emphasis mine)

In Tan Kah Fatt & Anor v Tan Ying [2023] 2 MLJ 583, a recent decision of the Federal Court which involved Articles 8, 12(4), 160(2), 161A(6)(a) of the Federal Constitution, Mary Lim FCJ pointed out:

“Given that Act 164 still allows for contracting and conducting of marriages according to law, religion, custom or usage, it can only be concluded that such marriages may still take place, especially in cosmopolitan, multi-religious and multi-racial Malaysia.”[4] (Emphasis mine)

Ong Hock Thye CJ (Malaya) in Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs), Malaysia [1969] 2 MLJ 129, a case involving Articles 5, 40, 149, 151 & 162 of the Federal Constitution, mentioned in passing:

“Like my brother Suffian I have the invidious task of electing whether to give more weight to English or Indian decisions in preference to the other. In this appeal we are of the same mind. Broadly speaking, Malaysia has more in common with England than India in so far as problems of preventive detention are concerned. For one thing, like England, Malaysia is compared. However for he lives from Whitehall the average Englishman does not think along parochial or provincial lines on important questions of the day. Multiracial though our society is in Malaysia, there are no two views regarding subversion.” (Emphasis ours)

The Court of Appeal in Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 5 MLJ 194[5] quoted from HRH Sultan Azlan Shah’s article Evolving a Malaysian Nation published in constitutional Monarchy, Rule of Law and Good Governance [2004] at pp 330–331, whereby HRH stated:

We embarked on a journey as a constitutional democracy with the full realisation that we were a multi-racial people with different languages, cultures and religion. Our inherent differences had to be accommodated into a constitutional framework that recognised the traditional features of Malay society with the Sultanate system at the apex as a distinct feature of the Malaysian Constitution.

Thus there was produced in August 1957 a unique document without any parallel anywhere. It adopted the essential features of the Westminister model and built into it the traditional features of Malay society.

This Constitution reflected a social contract between the multi-racial people of our country.

It is fundamental in this regard that the Federal Constitution is the supreme law of the land and constitutes the grundnorm to which all other laws are subject. The essential feature of the Federal Constitution ensures that the social contract between the various races of our country embodied in the independence Constitution of 1957 is safeguarded and forever ensures to the Malaysian people as a whole for their benefits.” (Emphasis mine)

As the Federal Constitution expressly and impliedly envisages Malaysia as a multiracial country, and the Judiciary has long recognised the same, promoting a multiracial country would not be contrary to the Federal Constitution.

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Misattribution by the majority in Dahlia Dhaima?

Yekambaran: A High Court Decision Wrongly Quoted As A Supreme Court Decision

Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1993] MLJU 96 (“Yekambaran”) is an oft quoted decision by Edgar Joseph Jr SCJ on the test to be applied in an application for discovery.

Yekmbaran is actually a case whereby Edgar Joseph Jr (despite being a Supreme Court judge then) sat in a High Court judge’s capacity to hear a High Court matter.

Section 18(1) of the Courts of Judicature Act 1964 (“CJA 1964”)[1], read together with the definition of “Judge” in Section 3 of the CJA 1964,[2] allow for a Federal Court judge, Court of Appeal judge, or High Court judge to hear a matter in the High Court.

The fact that Edgar Joseph Jr was a Supreme Court judge when he heard and decided on Yekambaran does not take away from the fact that:

(a) Yekambaran is a decision of the High Court;

(b) Yekambaran is binding where subordinate/inferior courts are involved;[3] and

(c) Yekambaran is only persuasive where superior courts are involved.

The following cases, regrettably, wrongly quoted Yekambaran as being a decision of the Supreme Court:

(a) Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 Jmb [2018] MLJU 697 (a decision of the Court of Appeal):

 “… (a) In Yekambaran s/o Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581, the Supreme Court set out the threshold test the applicant had to satisfy to succeed in an application for discovery.”[4] (Emphasis mine)

(b) Suruhanjaya Pilihan Raya & Ors v Kerajaan Negeri Selangor and another appeal [2018] 2 MLJ 322 (a decision of the Court of Appeal):

 “As for the elements required to be shown for the grant of an order for discovery, the then Supreme Court in Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1993] MLJU 96; [1994] 2 CLJ 581 through Edgar Joseph Jr SCJ had this to say …”[5] (Emphasis mine)

(c) Power Cellular Accessories Supply Sdn Bhd v Pesuruhjaya Tanah Persekutuan & Ors [2019] MLJU 751 (a decision of the High Court):

“On the same issue, the general legal principle on the requirements to be fulfilled in a discovery application has been laid down by the Supreme Court in the case of Yekambaran Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581 …”[6] (Emphasis mine)

(d) Golden Affinity Development Sdn Bhd v Lim Yok Wah & Ors [2020] MLJU 1463 (a decision of the High Court):

“On the same issue, the general legal principle on the requirements to be fulfilled in a discovery application as laid down by the Supreme Court in the case of Yekambaran Marimuthu v. Malayawata Steel Bhd [1994] 2 CLJ 581 …”[7] (Emphasis mine)

(e) Teknologi Enviro-Kimia (M) Sdn Bhd v Bufflow Engineering Sdn Bhd & Ors [2022] MLJU 2759 (a decision of the High Court):

“The general legal principle that is required to be fulfilled in a discovery application is found in the oft-quoted Supreme Court case of Yekambaran Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581, where his Lordship Edgar Joseph Jr SCJ stated …”[8] (Emphasis mine)

Notwithstanding the value and propriety of the test laid down in Yekambaran, decisions (such as the above) which incorrectly quote Yekambaran as a decision of the Supreme Court incorrectly elevate Yekambaran vis-a-vis the doctrine of judicial precedent and run the risk of muddling case law which are binding on superior courts vis-a-vis applications for discovery.

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The YDPA’s Power of Pardon: Discretionary or Bound By Advice?

Article 42 of the Federal Constitution, amongst others, governs the power of the Yang di-Pertuan Agong (“YDPA”) to grant pardons, reprieves and respites in respect of offences committed (collectively referred to as “Power of Pardon”).

An issue which has arisen time and time again is whether the Power of Pardon is exercisable by the YDPA at the YDPA’s discretion or whether the YDPA has to act on the advice of the Pardons Board.

Decided cases point toward the former being the case, though there are valid arguments for the latter being the case.

Discretionary

Suffian LP in Public Prosecutor v Soon Seng Sia Heng [1979] 2 MLJ 170 opined:

When considering whether to confirm, commute, remit or pardon, His Majesty does not sit as a court, is entitled to take into consideration matters which courts bound by the law of evidence cannot take into account, and decides each case on grounds of public policy; such decisions are a matter solely for the executive. We cannot confirm or vary them; we have no jurisdiction to do so. The royal prerogative of mercy, as is recognised by its inclusion in Chapter 3 of Part IV of the Constitution, is an executive power — as in Jamaica, Hinds v The Queen [1976] 1 All ER 353 372.” [1](Emphasis mine)

The Supreme Court in Sim Kie Chon v Superintendent of Pudu Prison [1985] 2 MLJ 385 (“Sim Kie Chon 1”) held the following:

“It is our considered view that the power of mercy is a high prerogative exercisable by the Yang di-Pertuan Agong or the Rule of a State or the Yang di-Pertuan Negeri, as the case may be, who acts with the greatest conscience and care and without fear of influence from any quarter. (See Hanratty and Another v Lord Butler of Saffron Walden)(1971) 115 Solicitors Journal p 386.”[2] (Emphasis mine)

In the later decision of Superintendent of Pudu Prison v Sim Kie Chon [1986] 1 MLJ 494 (“Sim Kie Chon 2”), the Supreme Court also held:

“The Pardons Board is only an advisory body and makes no decision whatsoever as such but only tenders advice to His Majesty for the purpose of the exercise of his powers of clemency under article 42 of the Constitution.”[3]

The relevant dictum in Sim Kie Chon 1 and/or Sim Kie Chon 2 have been approved by subsequent Federal Courts.[4]

Further, in Dato’ Dr Zambry bin Abd Kadir v Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia, intervener) [2009] 5 MLJ 464, the Federal Court mentioned in passing:

“The absolute prerogative powers are those which the King exercises in his discretion. They include powers of pardon, of giving honours, property and rights, franchise and treasure troves, of acts of state and a host of others, both internal and external matters. Of these the most important prerogative power is I believe, in relation to the Ruler’s prerogative in the exercise of his executive authority.”[5] (Emphasis mine)

The Federal Court and Supreme Court have consistently taken the position that the prerogative of mercy (an umbrella term which includes the Power of Pardon) is non-justiciable.[6]

Such decisions lean in favour of the position that the YDPA’s power of pardon is exercisable at the YDPA’s discretion.

Bound By Advice

Decisions such as Sim Kie Chon 1 and Sim Kie Chon 2 were made prior to the constitutional amendment which introduced Article 40(1A) of the Federal Constitution.

Article 40(1A) of the Federal Constitution provides:

“In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.” (Emphasis mine)

Emeritus Prof. Datuk Dr. Shad Saleem Faruqi, the holder of the Tunku Abdul Rahman Chair at the Faculty of Law, Universiti Malaya, is of the view that:

“… in the light of Article 40(1A), the Malaysian position is that at the federal level, the grant of pardon is not a discretionary power and must be exercised on advice.”[7] (Emphasis mine)

Further, Sim Kie Chon 1 and Sim Kie Chon 2 referred to Article 42 of the Federal Constitution without considering Article 40(3) of the Federal Constitution.

Article 42(4)(a) of the Federal Constitution, the article on the Power of Pardon, makes reference to Article 40(3) of the Federal Constitution:

“The powers mentioned in this Article—

(a) are, so far as they are exercisable by the Yang di-Pertuan Agong, among functions with respect to which federal law may make provision under Clause (3) of Article 40;” (Emphasis mine)

Article 40(3) of the Federal Constitution provides:

Federal law may make provision for requiring the Yang di-Pertuan Agong to act after consultation with or on the recommendation of any person or body of persons other than the Cabinet in the exercise of any of his functions other than

(a) functions exercisable in his discretion;

(b) functions with respect to the exercise of which provision is made in any other Article.” (Emphasis mine)

Since the Power of Pardon is a matter which federal law may make provision under Article 40(3) of the Federal Constitution, this would by implication mean that the Power of Pardon is not a function exercisable by the YDPA in his discretion.

In a significant departure from previous decisions such as Sim Kie Chon 1 and Sim Kie Chon 2, Akhtar bin Tahir J in Mohd Khairul Azam bin Abdul Aziz v Lembaga Pengampunan Wilayah Persekutuan & Anor [2020] MLJU 1691 held that:

“In matters of granting pardon the Federal Constitution makes it clear that the YDPA must act not only on the advice of the Pardons Board but must also accept the written opinion of the AG.”[8]

Akhtar bin Tahir J’s decision was subsequently reversed on appeal. The Court of Appeal affirmed the previous decisions of the superior courts[9] and held that, “The power to grant pardons can only be exercised by the YDPA personally and exclusively and such exercise is not justiciable.”[10]

The issue at hand is nevertheless a live issue notwithstanding apex court decisions such as Sim Kie Chon 1 and Sim Kie Chon 2 (and subsequent decisions which affirmed Sim Kie Chon 1 and/or Sim Kie Chon 2).

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