On Tan Sri Mahiaddin’s Public Solicitation of Bipartisan Support

On 13th August 2021, Tan Sri Dato’ Haji Mahiaddin bin Md Yasin (“TSMY”), the then Prime Minister of Malaysia, surprised the nation when he publicly and openly sought for bipartisan support in relation to the upcoming confidence vote in Parliament.[1]

In the process of doing so, TSMY admitted he no longer commanded the confidence of the majority of the members of the House of Representatives (Dewan Rakyat).[2]

TSMY also recognised that the only two options available to him are are to:

i. resign; or

ii. request for the Yang di-Pertuan Agong to dissolve Parliament.

TSMY is correct that those are his only two options in the event he no longer commands the confidence of the majority of the members of the Dewan Rakyat.

The two options are based on Article 43(4) of the Federal Constitution which is couched in mandatory terms.[3]

In order to avoid either scenario, TSMY offered to introduce certain Bills in Parliament which would bring about certain reforms. In exchange, Members of Parliament from the Federal Opposition who are agreeable to the offer would have to support TSMY during the upcoming confidence vote in Parliament.

TSMY’s public solicitation of bipartisan support was to a certain extent, a Confidence and Supply Agreement.[4]

It was constitutionally inappropriate for TSMY to publicly make such a proposal in light of his admission/recognition that he no longer commanded the confidence of the majority of the members of the Dewan Rakyat.

TSMY’s position is similar to Dato’ Seri Ir. Mohammad Nizar bin Jamaluddin position back in 2009.

Dato’ Seri Ir. Mohammad Nizar bin Jamaluddin was the Chief Minister of Perak but had lost the confidence of the majority of the members of the Perak State Legislative Assembly. He, nevertheless, refused to resign and maintained the status quo.

When the matter went up to the apex court, the Federal Court held following:

“Similarly here, on the literal interpretation of art XVI(6), we are of the view that the word ‘shall’ should be given a mandatory effect. Therefore, it is incumbent upon the appellant in the circumstances of this case to tender the resignation of the executive council. The term executive council by definition includes the MB (see art XVI(2)). We, therefore, agree with the respondent that the refusal on the part of the appellant to resign after having been directed to do so by HRH clearly went against the express provisions of art XVI(6). It cannot be the intention of the framers of the State Constitution that in the circumstances, it is open to the appellant whether to resign or stay on as MB. The word ‘shall’, in our opinion, ought to be given a mandatory effect otherwise it would lead to political uncertainty in the state. The appellant cannot continue to govern after having lost the support of the majority. To allow him to do so would be going against the basic principle of democracy.[5] (Emphasis mine)

Although Nizar Jamaluddin concerned the State Constitution of Perak, the provision in question was inserted into the State Constitution by virtue of Article 71 of the Federal Constitution[6] and is similarly worded to Article 43(4) of the Federal Constitution.

In light of Nizar Jamaluddin, as soon as TSMY admitted/recognised that he no longer commanded the confidence of the majority, TSMY should have either tendered his resignation or requested for the Yang di-Pertuan Agong to dissolve Parliament.

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On Appealing Against Interlocutory Decisions

During the opening of the 2020 legal year, the Chief Justice of Malaysia, Tengku Maimun Tuan Mat, announced that the Judiciary was looking to substantially limit civil appeals in interlocutory cases:

“28. … Trivial appeals tend to have a “snowball” effect on the efficient disposal of trials as they clog up the system. For example, many cases in the High Court are aging because a single case has so many interlocutory appeals pending at the Court of Appeal and the Federal Court. This is a common feature throughout the country.

29. Applications for summary judgment and striking out are one such example. If the application is dismissed there appears to be no prejudice to the applicant as the case will proceed on the merits. The proposal to limit appeals in this respect is to avoid delays in the full trial of the action. Although at the discussion stage, there was significant resistance from both the Bar and Chambers to the introduction of this new mechanism, the proposal has already been approved at the Rules Committee stage and it only remains to be formalised.”[1] (emphasis mine)

The learned Chief Justice’s proposal is consistent with the Federal Court’s past decisions that the definition of ‘decision’ found in Section 3 of the Courts of Judicature Act 1964 (“CJA 1964“) has to be read together with the relevant provision in the CJA 1964 on appeals to the Court of Appeal.

In summary, the legal position as it stands is that a ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties is not appealable.

In Dato’ Seri Anwar Ibrahim v Public Prosecutor [2010] 6 MLJ 585 (“Anwar Ibrahim”), the Appellant had sought to appeal against a ruling made by the trial judge in the course of a criminal trial.[2]

The trial judge had dismissed the Appellant’s application for the statement of the complainant, recorded under s 112 of the Criminal Procedure Code, to be produced for examination by the Appellant.[3]

A 3-man panel of the Federal Court dismissed the appeal on the basis that:

“The underlying reason behind the amendment to the definition of ‘decision’ in s 3 of the CJA, introduced by Amendment Act A1031 of 1998, which came into effect on 31 July 1998 is to stop parties from stalling a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial.”[4]

Shortly after that, the Federal Court in Karpal Singh a/l Ram Singh v Public Prosecutor [2012] 5 MLJ 293; [2012] 5 CLJ 537 (“Karpal Singh”) took the same position and held the following:

“A scrutiny of the scope of the term ‘decision’ in s 3 of the CJA reveals that its definition does not extend to the types of ‘judgments or orders’ which can be termed as ‘interlocutory’. In other words, if a judgment or order is not final, in the sense that it does not finally dispose of the rights of the parties in the trial, then it would not fall within the definition of the word ‘decision’ under section 3 of the CJA and thus not appealable …”[5] (emphasis mine)

The Federal Court went on to hold that a party dissatisfied with a ruling made in relation to an interlocutory application is not deprived of his/her right to appeal as he/she could appeal against the ruling after the trial.[6]

In Ahmad Zubair @ Ahmad Zubir bin Hj Murshid v Public Prosecutor [2014] 6 MLJ 831 (“Ahmad Zubair”), the Appellant’s appeal was unanimously struck out by the Federal Court. In delivering the decision of the court, Raus Sharif PCA held:

“From the above explanation given by this court in the case of Dato’ Seri Anwar Ibrahim v Public Prosecutor it is obvious that parliament is not oblivious to appeals which tend to stall proceedings and delay speedy disposal of cases. The new definition of the word decision in the amended s 3 of the CJA which we have laid emphasis to in the preceding paragraph does not include a judgment, order or ruling which does not finally dispose of the rights of the parties on the matters in dispute. With the amended s 3 of the CJA, appeals filed based on technical rulings which are interlocutory in nature are now things of the past. Such appeals are incompetent to be laid before the appellate court as it is clearly precluded by law.”[7] (emphasis mine)

Granted, Anwar Ibrahim, Karpal Singh, and Ahmad Zubair are criminal cases.[8]

In the context of civil cases, the Federal Court in Kempadang Bersatu Sdn Bhd v Perkayuan OKS No 2 Sdn Bhd [2019] 4 MLJ 614 (“Kempadang”) iterated that “Subsection 67(1) of the CJA must be read together with s 3 of the CJA.”[9]

Additionally, and more pertinently, the Federal Court observed that:

“… at what juncture a ruling is issued plays a vital role in determining whether such an order is a ruling within the context of s 3. There must be a trial in existence or a hearing and that the order is issued in the course of that trial or hearing. Secondly, the ruling must not have the effect of disposing the final rights of the parties.”[10]

If both elements are present then such a ruling would not be appealable.

In applying the two elements, a judge’s decision to dismiss a striking out application:

i. would have been made in the course of a hearing – namely the hearing of the striking out application; and

ii. does not have the effect of disposing the final rights of the parties – the matter would proceed to trial, where the Defendant(s) would still have an opportunity to oppose the Plaintiff’s/Plaintiffs’ case.

Thus, such a decision should not be appealable.

Zainun Ali FCJ, however, cautioned that not all orders given by the court pursuant to interlocutory applications filed by parties in the course of trial are non-appealable.[11]

Her Ladyship referred to the Court of Appeal’s decision in Mulpha International Bhd & Ors v Mula Holdings Sdn Bhd & Ors and other appeals [2017] MLJU 445 (“Mulpha International”) whereby it was held that the decision of the trial judge dismissing an application to strike out pleadings was not a ruling within the context of s 3 of the CJA although such application was filed in the course of the trial.[12]

The Court of Appeal in Mulpha International narrowly defined ‘ruling’ to mean any ruling made in the course of a trial upon objection raised by any party to the proceedings.[13]

In Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1 (“Asia Pacific Higher Learning”), the Federal Court agreed with the Federal Court in Kempadang that the word ‘decision’ in Section 3 of the CJA 1964 should be read together with Section 67(1) of the CJA 1964.[14]

The Federal Court also held that:

“The correct approach … is to read s 68 with the definition of ‘decision’ in s 3 of the Act in stating the matters that are not appealable to the Court of Appeal in civil cases. When these words are read with s 67 of the Act, such a ‘decision’, ‘judgment’ or ‘order’ which falls within the exclusionary words in the definition of the word ‘decision’ is without any doubt not appealable to the Court of Appeal.”[15]

Unfortunately, it was not discussed in Asia Pacific Higher Learning whether Mulpha International’s narrow definition of ‘ruling’ (which appeared to be cited approvingly in Kempadang) was correct.

If Mulpha International’s narrow definition of ‘ruling’ is correct, it would mean that decisions to dismiss pre-trial interlocutory applications would not amount to a ‘ruling’ and would thus be appealable regardless of whether it finally disposes of the rights of parties.

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Teh Cheng Poh & the Method of Revoking a Proclamation of Emergency and its Ordinances

In Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 (“Teh Cheng Poh”), the Privy Council held the following:

“The power to revoke, however, like the power to issue a proclamation of emergency, vests in the Yang di-Pertuan Agong, and the Constitution does not require it to be exercised by any formal instrument.”[1] (emphasis mine)

Strictly speaking, the Privy Council is correct in pointing out that the Federal Constitution does not prescribe the use of any formal instrument for the revocation of a proclamation of emergency.

Similarly, the Federal Constitution does not prescribe the use of any formal instrument for the revocation of any ordinance promulgated pursuant to such a proclamation.

This would be in contrast to the annulment of a proclamation of emergency (and ordinance promulgated pursuant to such a proclamation) by Parliament.

Article 150(3) of the Federal Constitution prescribes resolutions passed by Parliament as the formal instrument to be used, in relation to annulments:

“A Proclamation of Emergency and any ordinance promulgated under Clause (2B) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2B).” (emphasis mine)

In the absence of a prescription in the Federal Constitution on the method of revoking a proclamation of emergency and/or the ordinances promulgated pursuant to such a proclamation, the relevant provision(s) in the Interpretation Acts 1948 and 1967 (if any) would be applicable.

The Malaysian superior courts have consistently recognised that the provisions of the Interpretation Acts 1948 and 1967 apply even to the Federal Constitution, by virtue of Sections 3 and 66 of the Act.[2]

The Ordinances

According to Article 150(2C) of the Federal Constitution, an ordinance promulgated under Article 150(2B) has the same force and effect as an Act of Parliament.

Interestingly, the Interpretation Acts 1948 and 1967 are silent on whether Acts of Parliament have to be published in the Gazette.

Section 18(1)(a) of the Interpretation Acts 1948 and 1967 merely groups Acts of Parliament and ordinances promulgated by the Yang di-Pertuan Agong in a specific part of the Gazette:

“(1) The Gazette shall be published in parts as follows:

(a) a part to be known as the Acts Supplement which shall be published as and when necessary and which shall contain all Acts of Parliament and all Ordinances promulgated by the Yang di-Pertuan Agong;” (emphasis mine)

However, ordinarily, a Bill that has been passed by both Houses of Parliament and received the royal assent will become law. However, it will not have effect until it has been published in the Gazette.[3]

Since an emergency ordinance has the same force and effect as an Act of Parliament, it would be reasonable to infer that the revocation of an emergency ordinance also requires publication in the Gazette before it has any effect.

The Proclamation

The Federal Constitution, unlike in the case of emergency ordinances, does not state whether a proclamation of emergency has the same force and effect as an Act of Parliament.

In the event a proclamation of emergency is a primary legislation, the manner of revoking it would be similar to that of emergency ordinances and likely require publication in the Gazette.

In the event a proclamation of emergency is a delegated/subsidiary legislation, rather than primary legislation, Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967 would be relevant.

Section 86(1) of the Interpretation Acts 1948 and 1967 provides that:

Subsidiary legislation made under any Act of Parliament, Ordinance, Enactment or other lawful authority shall, unless it be otherwise expressly provided in any Act of Parliament, Ordinance, be published in the Gazette and, unless it be otherwise provided in such subsidiary legislation, shall take effect and come into operation as law on the date of such publication.” (emphasis mine)

Additionally, Sections 18(1)(b) of the Interpretation Acts 1948 and 1967 groups Royal Proclamations together with delegated/subsidiary legislation in the Gazette:

“(1) The Gazette shall be published in parts as follows:

(b) a part to be known as the Legislative Supplement A which shall be published as and when necessary and which shall contain all Royal Proclamations, orders, rules, regulations and by-laws;” (emphasis mine)

In light of Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967, it can be argued that, as a general rule, a revocation order in relation to a proclamation of emergency has to be published in the Gazette.

Regrettably, the Privy Council’s decision in Teh Cheng Poh lacks any discussion on the possible application of Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967 even though both provisions were in force at the time the case was before the Privy Council.

Hence, the Privy Council’s observations vis-a-vis the formal method (or lack thereof) for the revocation of a proclamation of emergency should be treated with caution in light of the possible applications of Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967.

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On Datuk Seri Takiyuddin’s Bombshell Regarding the Emergency Ordinances

On Datuk Seri Takiyuddin’s Bombshell Regarding the Emergency Ordinances

During the House of Representatives’ (Dewan Rakyat) sitting on 26th July 2021, Datuk Seri Takiyuddin bin Hassan dropped a bombshell that all six ordinances made pursuant to the Proclamation of Emergency (“the Ordinances”) have been revoked with effect from 21st July 2021.[1]

The Ordinances

Even if the Ordinances have been revoked, constitutionally, the Ordinances still have to be laid before Parliament pursuant to Article 150(3) of the Federal Constitution:[2]

“A Proclamation of Emergency and any ordinance promulgated under Clause (2B) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2B).” (emphasis mine)

The only effect of the revocation is that the Ordinances will cease to have effect and any resolutions to annul the Ordinances would be redundant/academic as the Ordinances no longer have effect.

However, at the time of writing, checks on the Federal Government Gazette’s website reveal that no such revocation order has been gazetted.[3]

In the event there is/exists a revocation order but it has not been gazetted, the revocation order would not have the force of law.[4]

Assuming it is true that there is a revocation order and it has been gazetted, it is unclear whether:

i. the Ordinances have been revoked with effect from 21st July 2021 (as per Datuk Seri Takiyuddin’s claim); or

ii. the date of the revocation order or the date it was gazetted is 21st July 2021 but the revocation is to take effect before/on/after 1st August 2021.[5]

One can only be sure after examining the wordings of the revocation order.

Additionally, the revocation of the Ordinances (without prior notice via publication in the Federal Gazette) could result in scenarios whereby individuals are summoned, compounded, and/or charged between 21st July 2021 and 1st August 2021 for “offences” created pursuant to the Ordinances when no such “offence” exists.[6]

An example would the offence of “creating, offering, publishing, etc., fake news or publication containing fake news,” which came about as a result of Section 4 of the Emergency (Essential Powers) (No. 2) Ordinance 2021.[7]

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Habeas Corpus 101

a. It is based on a specific writ known in full as “habeas corpus ad subjiciendum” (literally translated as, you should have the body for submitting).

In Chua Kian Voon v Menteri Dalam Negeri Malaysia & Ors [2019] MLJU 1491 [“Chua Kian Voon”], the Federal Court remarked that:

“The term habeas corpus refers most commonly to a specific writ known in full as “habeas corpus ad subjiciendum”, a prerogative writ ordering that a prisoner be brought to the court so that it can be determined whether or not the prisoner is being imprisoned lawfully … The words “habeas corpus” is a Latin law term. Its literal English translation is: “you have the body”.”[1]

b. It challenges the legality of a detainee’s detention.

The Federal Court in Chua Kian Voon summarised habeas corpus applications as follows:

“Put simply, a writ of habeas corpus is a challenge to the legality of a prisoner’s detention.”[2]

Challenges to the competence of the detaining authority would also fall under the scope habeas corpus application. In Jaideep Singh Dalip Singh v ASP Mahathir Abdullah Sapawi & Ors [2018] 3 MLJ 1, the Federal Court held:

“… where a challenge is made to the competence of the detaining authority to detain a person for want of the requisite powers to do so, such a challenge can be made by way of an application for a writ of habeas corpus. This was what happened in the present case. The appellants were challenging the competency of the detaining authority, who happened to be a magistrate which was vested with the powers under the POCA. Such powers under the POCA is not synonymous with the magistrate executing his powers under the Subordinate Court Act 1948.”[3]

c. It is granted as of right if the Court finds that a detainee is improperly or illegally detained.

This was expressly stated by the Federal Court in Chua Kian Voon:

“The writ of habeas corpus must be issued if the court finds that the detenu is illegally or improperly detained.”[4]

d. The burden lies with the detaining authority to show that the detention is legal.

In SK Takaliswaran Krishnan v Menteri Dalam Negeri, Malaysia [2009] 6 CLJ 705, Gopal Sri Ram JCA (as His Lordship then was) opined:

“It is settled law that on an application for habeas corpus the burden of satisfying the court that the detention is lawful lies throughout on the detaining authority.”[5]

e. If the detaining authority satisfies the burden, the onus then shifts to the detainee to show otherwise.

In Chua Kian Voon, Mohd Zawawi Salleh FCJ observed that:

“After the party who made the detention succeeded in proving that the detention is in accordance with the law, the onus then shifts to the detainee, especially if he alleges bad faith (see: Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129).”[6]

f. The detainee is entitled to take advantage of any technical defect which has the effect of invalidating the detention.

The Supreme Court in Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri & 1 Lagi [1994] 3 MLJ 285 said in passing that:

“… in cases of this nature [i.e. a habeas corpus application] the appellant is nevertheless entitled to take advantage of any technical imperfection which has the effect of invalidating the restrictive order.”[7]

This position was recently affirmed by the Federal Court in Chua Kian Voon.[8] 

g. The High Court has original jurisdiction.

Article 5(2) of the Federal Constitution provides that:

“Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.”

Additionally, Section 365(1) of the Criminal Procedure Code prescribes that:

“The High Court may whenever it thinks fit direct-

(1) that any person who:

(a) is detained in any prison within the limits of Malaysia on a warrant of extradition whether under the Extradition Act 1992 [Act 479]; or

(b) is alleged to be illegally or improperly detained in public or private custody within the limits of Malaysia,

       be set at liberty;”

h. Appeals are directly to the Federal Court.

Section 374 of the Criminal Procedure Code provides the following:

“Any person aggrieved by any decision or direction of the High Court under this Chapter may appeal to the Federal Court within thirty days from the date of the decision or direction appealed against.”

i. Applications can be limited in scope as a result of statute.

This was impliedly acknowledged by the Federal Court in Chua Kian Voon.[9]

For example, Section 15B(1) of the Prevention of Crime Act 1959 excludes judicial review of the Board’s act (which in the Act is defined to include habeas corpus applications) except in cases of procedural non-compliance.

j. Could possibly be suspended by Parliament but must be done so expressly or by clear implication.

The Court of Appeal in Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor [1999] 1 MLJ 266[10] referred to the decision of the United Kingdom’s Court of Appeal in R v Governor of Pentonville Prison & Anor, Ex parte Azam [1973] 2 WLR 949 whereby Lord Denning MR noted:

“These provisions as to appeal give rise to a question of the first importance. Do they take away a person’s right to come to the High Court and seek a writ of habeas corpus? I do not think so. If Parliament is to suspend habeas corpus, it must do so expressly or by clear implication.”

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