Justiciability of Parliamentary No-Vacancy Decisions pursuant to Article 49A of the Federal Constitution

Justiciability of Parliamentary No-Vacancy Decisions pursuant to Article 49A of the Federal Constitution

At the time of writing, six (6) former Parti Pribumi Bersatu Malaysia (“Bersatu”) Members of Parliament [collectively referred to as the “Bersatu Six”] had declared their support for the present Prime Minister[1] and had been expelled from Bersatu for the same.[2]

Datuk Seri Dr Ronald Kiandee (in his capacity as Bersatu’s chief whip) then wrote to the Speaker of the lower House of Parliament to notify the latter that a vacancy has occurred in relation to the parliamentary seats of the Bersatu Six.[3]

Tan Sri Dato’ Johari bin Abdul, the Speaker of the lower House of Parliament, ruled vide two letters dated 9th July 2024 that the Bersatu Six did not need to vacate their respective seats in the lower House of Parliament (“Bersatu Six Decision”).[4]

The Bersatu Six Decision is an example of a no-vacancy decision delivered by the Speaker of the lower House of Parliament pursuant to Article 49A of the Federal Constitution.

No-vacancy decisions in the context of State Legislative Assemblies have been held by the courts to be non-justiciable as a result of Article 72(1) of the Federal Constitution.[5]

Article 72(1) of the Federal Constitution is in pari materia with Article 63(1) of the Federal Constitution, and the latter provides that:

“The validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court.”

Professor Dr. Nik Ahmad Kamal rightly pointed out the pertinent question to be answered in relation to the justiciability of parliamentary no-vacancy decisions pursuant to Article 49A of the Federal Constitution:

“The question is whether the House Speaker’s decision under Article 49A(3) is a ‘proceeding’ in the context of clause (1) of Article 63. If it is a ‘proceeding’ of the House, the decision is not challengeable in a court of law.”[6]

The Federal Constitution itself is silent on the definition of “proceedings”.

Strictly speaking, the Bersatu Six Decision was delivered by the Speaker of the lower House of Parliament vide letters and not during parliamentary sittings. One could argue that letters sent by the Speaker do not fall within the scope of “any proceedings in either House of Parliament or any committee thereof”.

Having said that, a similar challenge was mounted in Teng Chang Khim (appealing as speaker of Selangor State Legislative Assembly) v Badrul Hisham bin Abdullah & Anor [2017] 5 MLJ 567 [“Teng Chang Khim”] relation to a no-vacancy decision in the Selangor State Legislative Assembly which was delivered during a press conference.[7]

The Federal Court in Teng Chang Khim held that the no-vacancy decision was entitled to parliamentary privilege and thus non-justiciable as it was ‘connected with the essential business’ of the State Legislative Assembly:

“[51]  In conclusion, we are of the view that in the present case, the speaker was acting within the limits of the power given to him under art 69 of the Selangor Constitution when he declared the N46 Pelabuhan Klang Constituency seat vacant. Even though the declaration was made outside the SLA proceedings, it was inevitably connected with the essential business of the SLA, made within the parameters set out by art 69 of the Selangor Constitution, and was made to regulate the internal affairs of the SLA. Consequently, we rule that the speaker’s act is non-justiciable and the speaker is entitled to the protection of parliamentary privilege enjoyed by the SLA as provided for under art 72(1) of the Federal Constitution and paras 2–3 of the Schedule to art 77 of the Selangor Constitution.”[8] (Emphasis mine)

In Ronald Kiandee & Anor v Dato’ Johari bin Abdul (disaman sebagai Yang di-Pertua Dewan Rakyat) & Ors [2023] MLJU 2798 [“Ronald Kiandee”], a case which involved the justiciability of parliamentary no-vacancy decisions pursuant to Article 49A of the Federal Constitution, Amarjeet Singh J applied the ‘essential business‘ test and held that such decisions are non-justiciable:

“[23]  The provision is clear that the casual vacancy is to be established by the Speaker. That is what the Speaker did. The Speaker acted within the power conferred upon him under Article 49A(1) read with Article 49A(3) of the Federal Constitution and decided that there was no vacancy. It is pertinent to note that it was the 1st applicant who wrote to the Speaker to invoke his powers under Article 49A(3) to establish that the said four seats were vacant for breach of the Article 49A(1) of the Federal Constitution.

[24]  It is well established and is settled law that the decision of the Speaker in deciding whether there is a casual vacancy in the legislature is an internal matter of the legislature falls within the privilege of the legislature and therefore protected under Article 72(1) of the Federal Constitution (see Teng Chang Khim v Badrul Hisham Abdullah & Anor [2017] 9 CLJ 630; [2017] 5 MLJ 567). In this regard it is crucial to note that Article 72(1) of the Federal Constitution is in pari materia with Article 63(1) of the Federal Constitution …

[29]  Thus, if the Speaker is acting within the powers conferred upon him by the Constitution, whether State or Federal, in declaring a seat vacant, which is inextricably connected with the essential business of the legislature, such act is non-justiciable and the Speaker is entitled to the protection of parliamentary privilege enjoyed by the SLA as provided for under Articles 63(1) or 72(1) of the Federal Constitution.”[9] (Emphasis mine)

The Applicants in Ronald Kiandee have since appealed to the Court of Appeal (Civil Appeal No. W-01(IM)-618-11/2023), and the matter has been fixed for hearing on 30th October 2024. It remains to be seen whether the appellate courts will adopt the ‘essential business’ test for parliamentary no-vacancy decisions pursuant to Article 49A of the Federal Constitution and/or uphold the non-justiciability of such decisions.

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Justiciability of Parliamentary No-Vacancy Decisions pursuant to Article 49A of the Federal Constitution

The Significance of Nik Elin’s Case for Constitutional Challenges of Syariah Criminal Provisions

On 9th February 2024, the majority of the Federal Court in Nik Elin Zurina binti Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan [Federal Court Petition No. BKA-2-05/2022(D)] [“Nik Elin”] held that the following provisions in Kelantan’s Syariah Criminal Code (1) Enactment 2019 are void:

“… Sections 11, 14, 16, 17, 31, 34, 36, 37(1)(b), 39, 40, 41, 42, 43, 44, 45, 47 and 48 …”[1]

(collectively referred to as the “Impugned Provisions”)

Floodgates?

Some quarters have claimed inter alia that Nik Elin’s case is significant as it would open the door to similar legal challenges in relation to Syariah criminal provisions in other states.[2]

At the outset, it is important to note that it is not novel for the constitutionality of Syariah criminal provisions to be the subject of legal challenge.

Pre-Nik Elin, there were recent appellate decisions regarding the constitutionality of Syariah criminal provisions.

The constitutionality of Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 was challenged and the Federal Court in SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356 [“SIS Forum”] ruled in 2022 that the provision was “unconstitutional and void, as it is a provision which the [Selangor State Legislative Assembly] has no power to make.”[3]

In Iki Putra bin Mubarrak v Kerajaan Negeri Selangor & Anor [2021] 2 MLJ 323 [“Iki Putra”], the Federal Court held in 2021 that Section 28 of the Shariah Criminal Offences (Selangor) Enactment 1995 “… is inconsistent with the [Federal Constitution] and is therefore void …”[4]

The constitutionality of Section 23 of the Syariah Criminal Procedure Enactment 2003 was also the subject of legal challenge not too long ago. In 2022, the High Court ruled that the provision was unconstitutional for being inconsistent and ultra vires the Federal Constitution.[5] The High Court’s decision was later reversed on appeal to the Court of Appeal.[6]

It remains to be seen whether Nik Elin’s case will be a catalyst for further similar legal challenges, or whether Nik Elin merely joins a list of successful challenges to the constitutionality of Syariah criminal provisions.

Substantive Test

In terms of the substantive test, the majority of the Federal Court in Nik Elin’s case merely reiterated the established legal position that:

(a) There are certain matters within Parliament’s legislative power/jurisdiction and State Assemblies cannot legislate on those matters, and vice versa:

“… except for matters that fall within the Concurrent List, when the two Lists (Federal and State) are understood and applied correctly, both Parliament and the State Legislatures cannot then ordinarily legislate on matters that fall within the purview of the other.”[7]

(b) The pith and substance doctrine/test, as espoused in Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119 (SC), applied:

“It is not the outward appearance of the law in question and the words it uses that matter, rather the law must be examined as a whole to ascertain whether it deals, in pith and substance, with a subject-matter upon which the body making it has the power to enact in accordance with the Legislative Lists.”[8]

Nik Elin’s case is not a game changer on the substantive test for constitutional challenges on Syariah criminal provisions as Nik Elin’s case essentially reiterated the legal approach in Iki Putra and SIS Forum.[9]

Locus Standi

On another hand, Nik Elin’s case is significant as the Petitioners were allowed to challenge the constitutionality of the Impugned Provisions despite the absence of any real and actual controversy affecting the Petitioners’ rights [“Lack-of-Locus-Standi Argument”].

For example, the Petitioners in Nik Elin’s case (unlike in Iki Putra) were not charged with committing any offence under the Impugned Provisions.

The Lack-of-Locus-Standi Argument was the main reason for Abdul Rahman bin Sebli CJSS’ dissenting judgment in Nik Elin’s case.[10]

Dr. Hamid Sultan bin Abu Backer, a former Court of Appeal judge, shares Abdul Rahman bin Sebli CJSS’ views on the Lack-of-Locus-Standi Argument in Nik Elin’s case.[11]

On the issue of locus standi, the majority of the Federal Court in Nik Elin went so far as to say that:

All citizens (and in some cases all persons) are entitled to rely on the FC for protection and to approach the Federal Court for competency challenge under Articles 4(4) and 128 of the Federal Constitution.”[12] (Emphasis mine)

Nik Elin’s case, if not successfully reviewed by the Federal Court pursuant to Rule 137 of the Rules of the Federal Court 1995, would have notably expanded the test for locus standi for constitutional challenges under Articles 4(4) and 128 of the Federal Constitution.

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Justiciability of Parliamentary No-Vacancy Decisions pursuant to Article 49A of the Federal Constitution

Citizenship: An Exclusive Right of the Federal Government?

Datuk Seri Saifuddin Nasution bin Ismail, the Minister of Home Affairs (“Minister”), was recently quoted as having said that:

“The granting of Malaysian citizenship to non-citizen individuals is the exclusive right of the government, which is not offered and given arbitrarily.”[1]

Earlier this year, the Minister repeated a similar line in Parliament when he said:

“Malaysian citizenship is an exclusive right of the federal government, so it takes time to consider the application for Malaysian citizenship”[2]

An issue which arises from the Minister’s remarks is whether Malaysian citizenship is an exclusive right of the Federal Government.

In short, Malaysian citizenship is an exclusive right of the Federal Government only in relation to citizenship by registration and naturalisation.

The Minister’s remarks, although not legally incorrect, can be misleading when used too broadly in a manner so as to appear to apply to all citizenship pathways.

As correctly pointed out by the majority decision of the Federal Court in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 (“CTEB”), there are four pathways of acquiring Malaysian citizenship and they are:

“(a) operation of law (art 14);

(b) registration (arts 15, 15A, 16, 16A and 18);

(c) naturalisation (art 19); or

(d) incorporation of territory (art 22).”[3]

Operation of law

In relation to citizenship by operation of law, the majority in CTEB made it clear that it is automatic:

“[128]  Of the four categories, the operation of law citizenship is almost automatic. One either fits the given criteria under the FC or one does not. The criteria are clearly stipulated in the FC and it does not require any exercise of discretion by the authority.

[130]  The segregation between these two broad classes vis by operation of law and other forms of citizenship (registration and naturalisation) is mainly this: The other categories of citizenship may be acquired through an application to the Federal Government upon the required conditions being fulfilled. Thus, unlike the operation of law citizenship, their qualifications are not automatic at birth. They become qualified upon fulfilling the stipulated conditions.”[4] (Emphasis mine)

Emeritus Professor Datuk Dr Shad Saleem Faruqi’s views in his book titled Our Constitution, reproduced below, were referred to and relied on by the majority in CTEB:[5]

“Birth and descent: This type of citizenship is also referred to as citizenship by operation of law. Its complex details are found in Article 14(1)(a) and the Second Schedule, Part 1. It confers an automatic right of citizenship without oath and without any official discretion on the following categories of persons.”[6] (Emphasis mine)

The Federal Court in CCH & Anor (on behalf of themselves and as litigation representatives of one CYM, a child) v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia [2022] 1 MLJ 71 made it clear that citizenship by operation of law is a fundamental and constitutional right:

“In this regard and with respect, we are minded to observe that citizenship by operation of law is a right — a fundamental and constitutional right. It leaves absolutely no room for the exercise of subjective notions or presuppositions on what citizenship is. The words citizenship ‘by operation of law’ could not be any clearer, and there is no room whatsoever for discretion. The FC reigns supreme at all times and the respondent and all related bodies are bound to comply with its dictates.”[7] (Emphasis mine)

If citizenship by operation of law is automatic, and is a fundamental and constitutional right, it cannot be said to be an exclusive right of the Federal Government.

Registration

The majority in CTEB recognised that the Federal Government will exercise its discretion when it comes to citizenship by registration:

“To illustrate this point we can take a citizen by registration as an example. One of the persons qualified to apply is a married woman who is a wife of a Malaysian citizen. Why I refer her as a person who qualifies is because she is eligible to apply for citizenship to the Federal Government, who then will exercise its discretion. She must first satisfy the prerequisites of art 15(1)(a) in that she must reside in the Federation for a continuous period of two years, before applying, and (b) she must be of good character. These two conditions are subjected to further qualifications in arts 15(4) and (5). It says if she had resided in the States of Sabah or Sarawak before Malaysia Day she is treated as residing in the Federation. Then her marriage to the Malaysian citizen must be registered in accordance with any written law (see art 15(5)).”[8] (Emphasis mine)

Since the Federal Government is the sole party entrusted by the Federal Constitution to exercise its discretion vis-a-vis citizenship by registration, the Federal Government can be said to have an exclusive right over citizenship by registration.

Naturalisation

In relation to citizenship by naturalisation, based on the phraseology employed in Article 19 of the Federal Constitution, it involves an exercise of discretion wholly by the Federal Government:

“(1) Subject to Clause (9), the Federal Government may, upon application made by any person of or over the age of twenty-one years who is not a citizen, grant a certificate of naturalization to that person if satisfied

(2) Subject to Clause (9), the Federal Government may, in such special circumstances as it thinks fit, upon application made by any person of or over the age of twenty-one years who is not a citizen, grant a certificate of naturalization to that person if satisfied—” (Emphasis mine)

Azizul Azmi Adnan J (now JCA) in Chandra Morgan Velutham @ Velautham & Anor v Ketua Pengarah Pendaftaran Negara & Ors [2022] MLJU 1452 recognised that there is an exercise of power and discretion by the Federal Government when it comes to citizenship by naturalisation:

“The second mode by which citizenship is acquired is by the exercise of a power of the Federal government to register a person as a citizen, to issue a certificate of naturalization or to issue a certificate of citizenship. It is the exercise of the power and discretion under this second mode that section 2 of Part II of the Second Schedule purports to immunise from curial oversight.”[9] (Emphasis mine)

Given that the Federal Government has been wholly entrusted by the Federal Constitution to exercise its discretion vis-a-vis citizenship by naturalisation, citizenship by naturalisation can be said to be an exclusive right of the Federal Government.

Incorporation of Territory

Pursuant to Article 22 of the Federal Constitution, Parliament is entrusted with the power of determining citizenship by incorporation of territory:

“If any new territory is admitted to the Federation after Malaysia Day in pursuance of Article 2, Parliament may by law determine what persons are to be citizens by reason of their connection with that territory and the date or dates from which such persons are to be citizens.” (Emphasis mine)

Considering citizenship by incorporation of territory is under Parliament (the Legislature)’s purview, as opposed to an exclusive exercise of discretion by the Federal Government (the Executive), it cannot be said to be an exclusive right of the Federal Government.


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Justiciability of Parliamentary No-Vacancy Decisions pursuant to Article 49A of the Federal Constitution

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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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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