by Joshua Wu Kai-Ming | Feb 1, 2023 | Law
On 29th January 2023, a senior member of the Malaysian Bar, Datuk Seri Gopal Sri Ram (“GSR”) passed away.[1]
GSR was a former Court of Appeal and Federal Court judge and during his time on the bench, GSR contributed massively to the development of Malaysia’s constitutional law.
This article intends to highlight some of GSR’s notable constitutional cases and dicta during his time on the bench, and is by no means exhaustive.
1. Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 (FC):
“[5] … Provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively. Take art 10(2)(c). It says that ‘Parliament may by law impose … (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality’. Now although the article says ‘restrictions’, the word ‘reasonable’ should be read into the provision to qualify the width of the proviso. The reasons for reading the derogation as ‘such reasonable restrictions’ appear in the judgment of the Court of Appeal in Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia [2006] 6 MLJ 213; [2007] 1 CLJ 19 which reasons are now adopted as part of this judgment.” (Emphasis mine)
“[8] … it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional. Whether a particular feature is part of the basic structure must be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution. See Keshavananda Bharati v State of Kerala AIR 1973 SC 1461.” (Emphasis mine)
“[12] … The expression ‘morality’ is not defined by the Constitution. However, in Manohar v State of Maharashtra AIR 1984 Bom 47 (a case cited by learned senior federal counsel) it was held that morality in the equipollent Indian Constitution art 19(2) and (4) :
is in the nature of public morality and it must be construed to mean public morality as understood by the people as a whole.” (Emphasis mine)
“[13] … Article 10 contains certain express and, by interpretive implication, other specific freedoms. For example, the freedom of speech and expression are expressly guaranteed by art 10(1)(a). The right to be derived from the express protection is the right to receive information, which is equally guaranteed. See Secretary, Ministry of Information and Broadcasting, Government of India v Cricket Association of Bengal AIR 1995 SC 1236.” (Emphasis mine)
“[19] Accordingly, when state action is challenged as violating a fundamental right, for example, the right to livelihood or the personal liberty to participate in the governance of the Malaysian Bar under art 5(1), art 8(1) will at once be engaged. When resolving the issue, the court should not limit itself within traditional and narrow doctrinaire limits. Instead it should, subject to the qualification that will be made in a moment, ask itself the question: is the state action alleged to violate a fundamental right procedurally and substantively fair. The violation of a fundamental right where it occurs in consequence of executive or administrative action must not only be in consequence of a fair procedure but should also in substance be fair, that is to say, it must meet the test of proportionality housed in the second, that is to say, the equal protection limb of art 8(1). However, where the state action is primary or secondary legislation, that is to say, an Act of Parliament or subsidiary legislation made by the authority of Parliament, the test of constitutionality is only based on substantive fairness: no question arising on whether the legislation is the product of a fair procedure. This is because the doctrine of procedural fairness does not apply to legislative action of any sort. See Bates v Lord Hailsham of St Marylebone & Ors [1972] 1 WLR 1373; Union of India v Cynamide India Ltd AIR 1987 SC 1802.”
“[21] Article 8(1) provides that: ‘All persons are equal before the law and entitled to the equal protection of the law.’ As may be seen, the article guarantees two separate and distinct rights, namely, (a) equality before the law; and (b) equal protection of the law. It cannot be over emphasised that in accordance with well settled principles of constitutional interpretation each of these rights must be treated as a separate and distinct right despite an overlap as will be seen later in this judgment. Indeed, each right is derived from a distinctly different source. The framers of our Constitution (like the framers of the Indian Constitution) derived the equality clause from the Constitution of the Irish Free State. The equality doctrine in reality is drawn from Dicey’s rule of law one of the pillars of which is that persons are equal before the law.” (Emphasis mine)
2. Shamim Reza bin Abdul Samad v Public Prosecutor [2011] 1 MLJ 471 (FC):
“[3] … We therefore accept that the right to a fair trial is a constitutionally guaranteed right.” (Emphasis mine)
3. Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301 (FC):
“[8] In the second place, the Constitution is a document sui generis governed by interpretive principles of its own. In the forefront of these is the principle that its provisions should be interpreted generously and liberally. On no account should a literal construction be placed on its language, particularly upon those provisions that guarantee to individuals the protection of fundamental rights. In our view, it is the duty of a court to adopt a prismatic approach when interpreting the fundamental rights guaranteed under Part II of the Constitution. When light passes through a prism it reveals its constituent colours. In the same way, the prismatic interpretive approach will reveal to the court the rights submerged in the concepts employed by the several provisions under Part II. Indeed the prismatic interpretation of the Constitution gives life to abstract concepts such as ‘life’ and ‘personal liberty’ in art 5(1).” (Emphasis mine)
“[12] … A court when interpreting the other provisions of our Constitution, in particular, those appearing in Part II thereof, must do so in the light of what has been correctly referred to as ‘the humanising and all pervading provisions of art 8(1)’ (see Barat Estates Sdn Bhd & Anor v Parawakan a/l Subramaniam & Ors [2000] 4 MLJ 107).
…
The effect of art 8(1) is to ensure that legislative, administrative and judicial action is objectively fair. It also houses within it the doctrine of proportionality which is the test to be used when determining whether any form of state action (executive, legislative or judicial) is arbitrary or excessive when it is asserted that a fundamental right is alleged to have been infringed. See Om Kumar v Union of India AIR 2000 SC 3689.” (Emphasis mine)
“[17] … It is clear from this passage that the rules of natural justice, which is the procedural aspect of the rule of law, is an integral part of arts 5(1) and 8(1). In short, procedural fairness is incorporated in these two articles.” (Emphasis ours)
4. Palm Oil Research and Development Board Malaysia & Anor v Premium Vegetable Oils Sdn Bhd & Another Appeal [2005] 3 MLJ 97 (FC):
“42 … It is the solemn duty of the judicial arm of Government — the courts who are the guardians of constitutional rights – to interpret the fundamental rights provisions in Part II of the Constitution prismatically, so that our citizens obtain the full benefit and value of those rights. And it is in this simple way, through the exercise of the court’s interpretive jurisdiction that our public law gains momentum. Accordingly, it cannot be over-emphasised that on no account should our courts adopt a narrow and pedantic approach to constitutional interpretation.” (Emphasis mine)
“48 In the context of the present appeal, it is art 8(1), particularly the second limb of that Article, which is the relevant constitutional provision which houses the ultra vires doctrine.
49 Article 8(1) has two limbs. The first limb guarantees equality before the law. In other words, it requires fairness in all forms of State action.
…
50 The second limb guarantees equal protection of the law. This is the limb directly relevant to the present appeal. The act or omission of a member of the administration (whether a Minister or a civil servant) which is either: (i)�beyond the power conferred upon him or her by an Act of Parliament; or (ii) constitutes an abuse of that power, denies to the person affected thereby, equal protection of the law and consequently runs foul of art 8(1). Accordingly, the doctrine of ultra vires in respect of acts whether purely administrative or in the exercise of a power to produce delegated legislation finds its place within the second limb of art 8(1).” (Emphasis mine)
“61 In Malaysia, the Federal Constitution has entrusted the law making power to Parliament and the State Assembly of each of the several States of the Federation. While the courts through the common law recognise the power of Parliament to delegate some of its legislative power, it is equally the constitutional duty of the courts to ensure that no excessive delegation takes place. Hence the well settled principle that a provision in a statute conferring power on a member of the executive to enact subsidiary legislation must be construed strictly. This is particularly so where the subsidiary legislation is one that imposes a financial levy — call it a tax or charge or cess or whatever you may — upon the whole or any section of the public.” (Emphasis mine)
Note: GSR, though then a Court of Appeal judge, was empaneled to sit in a Federal Court hearing pursuant to Article 122(2) of the Federal Constitution.
5. Fung Beng Tiat v Marid Construction Co [1996] 2 MLJ 413 (FC):
“First, it is crystal clear from art 121 of the Federal Constitution that there are two separate High Courts in Malaysia exercising distinct territorial jurisdiction over different geographical areas of the country. There is the High Court in Malaya and there is the High Court in Sabah and Sarawak. Each has jurisdiction over disputes that arise within its territory. As presently advised, there is absent in any Federal legislation that confers power upon the one High Court to transfer proceedings to the other.” (Emphasis mine)
Note: GSR, though then a Court of Appeal judge, was empaneled to sit in a Federal Court hearing pursuant to Article 122(2) of the Federal Constitution. GSR also delivered the judgment of the Federal Court in this case.
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by Joshua Wu Kai-Ming | Dec 13, 2022 | Law, Politics
Recently, Parti Pribumi Bersatu Malaysia (Bersatu)’s then Sabah chief, Datuk Seri Panglima Haji Hajiji bin Noor, announced that the leaders of Bersatu Sabah unanimously decided to leave the party.[1]
This departure includes the departure of the following elected representatives from Bersatu’s Sabah chapter:[2]
(i) Datuk Armizan Mohd Ali (Papar)
(ii) Khairul Firdaus Akbar Khan (Batu Sapi)
(iii) Datuk Matbali Musah (Sipitang)
(iv) Datuk Jonathan Yasin (Ranau)
(collectively referred to as the “Bersatu Sabah MPs”).
The question at hand is whether the Bersatu Sabah MPs are required to vacate their seats under the anti-hopping provision in the Federal Constitution.[3]
Article 49A(1) of the Federal Constitution, which came into operation on 5th October 2022,[4] provides the following:
“(1) Subject to the provisions of this Article, a member of the House of Representatives shall cease to be a member of that House and his seat shall become vacant immediately on a date a casual vacancy is established by the Speaker under Clause (3) if—
(a) having been elected to the House of Representatives as a member of a political party—
(i) he resigns as a member of the political party; or
(ii) he ceases to be a member of the political party.”[5] (Emphasis mine)
Some are of the view that by leaving Bersatu, the Bersatu Sabah MPs need to vacate their seats.[6]
Meanwhile, others are of the view that the Bersatu MPs need not vacate their seats despite leaving Bersatu.[7]
The definition of “political party” for the purposes of the Federal Constitution “includes a coalition of such societies which has been registered under any federal laws.”[8]
Gabungan Rakyat Sabah (“GRS”) is an official coalition which has been registered with the Registrar of Societies since March 2022.[9]
This would mean that GRS is a “political party” for the purposes of the Federal Constitution, including for the purposes of Article 49A.
It is undisputed that the Bersatu Sabah MPs were elected to the House of Representatives as members of GRS.[10]
As such, the issue to be decided then is whether the Bersatu Sabah MPs have:
(i) resigned as a member of GRS; or
(ii) ceased to be a member of GRS.
Based on the information available at the time of writing, the former appears to be unlikely.
As for the latter, if by leaving Bersatu, the Bersatu Sabah MPs cease to be members of GRS, the Bersatu Sabah MPs would have to vacate their seats pursuant to Article 49A(1)(a)(ii) of the Federal Constitution.
This would occur where, for example, GRS’ constitution does not allow the Bersatu Sabah MPs to remain as members of the coalition in light of their departure from a component party of the coalition.
However, the Bersatu Sabah MPs need not vacate their seats if they can remain as members of GRS despite leaving Bersatu.
This would occur where, for example, the Bersatu Sabah MPs have direct/individual membership of GRS[11] or because GRS’ constitution allows them to remain as members of the coalition notwithstanding their departure from a component party of the coalition.
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by Joshua Wu Kai-Ming | Dec 7, 2022 | Law, Politics
For the purposes of the 15th General Elections (“GE15”), the Pakatan Harapan coalition launched the Harapan Action Plan (“HAP”).[1]
At page 40 of the HAP, the Pakatan Harapan coalition outlined that it intends to separate the roles and responsibilities of the Public Prosecutor from the Attorney General (“the Separation”):
The Separation is not a novel one as it was mooted in Pakatan Harapan’s manifesto for the 14th General Elections.[2]
Unfortunately, despite being successful in the 14th General Elections, the Separation did not materialise during the Pakatan Harapan coalition’s 22 months in power.[3]
In fact, there was controversy surrounding some of the prosecutorial decisions made when Tan Sri Tommy Thomas (Pakatan Harapan coalition’s choice for Attorney General)[4] was the Attorney General.[5]
Post-GE15, Dato’ Seri Anwar bin Ibrahim (Pakatan Harapan’s GE15 candidate for Prime Minister) has been sworn in as the 10th Prime Minister of Malaysia[6] and the current Federal Government is in effect a Pakatan Harapan coalition-led government.
It is now time for Pakatan Harapan to fulfill its plans in the HAP. One of the major institutional reforms planned in the HAP is the Separation.
Some possible models for implementing the Separation can be gleaned from Commonwealth jurisdictions such as Bangladesh, India, Jamaica, and Kenya.[7]
Legally, the Separation would require a constitutional amendment to inter alia Article 145 of the Federal Constitution.[8]
Such a constitutional amendment would require two third majority as per Article 159(3) of the Federal Constitution.[9]
The current Federal Government, led by Dato’ Seri Anwar bin Ibrahim, at the time of writing, appears to have two third majority support in the Dewan Rakyat (lower house of Parliament).[10]
The Pakatan Harapan coalition thus has a golden opportunity to bring about major institutional reform by passing a constitutional amendment act to implement the Separation.
Post-Script: Dato’ Sri Azalina binti Othman Said, the Minister in the Prime Minister’s Department (Law and Institutional Reform), announced on 7th December 2022 that the first steps for the Separation have been taken. [11]
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by Joshua Wu Kai-Ming | Oct 2, 2022 | Law, Politics
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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by Joshua Wu Kai-Ming | Sep 13, 2022 | Law
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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