by Joshua Wu Kai-Ming | Feb 21, 2022 | Law
Dato’ Arif Perkasa Dr. Mohd Asri bin Zainul Abidin, the Mufti of Perlis (“Perlis Mufti”), recently provided his comments on the unilateral conversion of Loh Siew Hong’s three children.[1]
With all due respect to the Perlis Mufti, many of his key contentions do not hold water.
The English version of the Federal Constitution is authoritative
The Perlis Mufti reportedly claimed that the Raja of Perlis Tuanku Syed Sirajuddin Syed Putra Jamalullail was instrumental in issuing an authoritative text of the Federal Constitution in the Malay language when the latter was Yang di-Pertuan Agong.
Consequently, this would invoke Article 160B of the Federal Constitution and render the Malay version of the Federal Constitution the authoritative text.
However, it is important to note that the Perlis Mufti’s proposition has not been judicially accepted.
Rather, the superior courts have recognised the English version of the Federal Constitution to be the authoritative text.
In Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 (“Indira Gandhi”), the Federal Court had to decide whether the Malay version or English version of the Federal Constitution was authoritative.[2]
The Federal Court unanimously held that:
“… In the present appeals, despite the learned State Legal Adviser’s reliance on Article 160B, no evidence of the necessary prescription was adduced by either of the Respondents. In the circumstances, we will proceed on the basis that the English version to be authoritative.”[3] (Emphasis mine)
The English version of the Federal Constitution will remain the authoritative text until and unless a subsequent Federal Court departs from Indira Gandhi and decides otherwise.[4]
Any laws which are inconsistent with the Federal Constitution are void
The Perlis Mufti reportedly claims that unilateral child conversions are valid under Perlis law.
Even if that were the case, such provisions would be void if they are inconsistent with the Federal Constitution.
Article 4(1) of the Federal Constitution provides that:
“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.” (Emphasis mine)
In Indira Gandhi, the Federal Court was of the view:
“… Since a literal construction of art 12(4) would give rise to consequences which the legislative could not possibly have intended, the Article should not be construed literally (Sukma Darmawan at p 247). A purposive reading of art 12(4) that promotes the welfare of the child and is consistent with good sense would require the consent of both parents (if both are living) for the conversion of a minor child.”[5] (Emphasis mine)
Accordingly, provisions in Perlis’ law which allow for unilateral child conversions would contravene Article 12(4) of the Federal Constitution and would thus be void.
Certificates for unilateral child conversions are void and must be set aside
Since provisions of Perlis’ law allowing for unilateral child conversions are void for being inconsistent with Article 12(4) of the Federal Constitution, certificates of conversions issued pursuant to those provisions must be set aside.
Support for this proposition can be found in Indira Gandhi, a case which concerned unilateral child conversions under Perak’s law.
The Federal Court in Indira Gandhi held the following:
“We also find that the certificates of conversion were issued without the consent of the Appellant thus contravening Article 12(4) of the Federal Constitution and sections 5 and 11 of the GIA. The certificates of conversion are void and must be set aside.”[6] (Emphasis mine)
Editor’s Note: This article also appeared on Malaysia Now
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by Joshua Wu Kai-Ming | Jan 27, 2022 | Law
1. An exercise of Federal Court’s inherent power
Rule 137 of the Rules of the Federal Court 1995 provides the following:
“For the removal of doubts it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”
The Federal Court in Golden Star & Ors v Ling Peek Hoe & Ors [2021] 2 MLJ 259 expressly recognised that it has the inherent power to review its own decision pursuant to Rule 137 of the Rules of the Federal Court 1995:
“Under r 137 of the RFC the Federal Court has the inherent power to review its own decision but this is exercised only in rare and exceptional circumstances.”[1]
Previous Federal Courts have also taken a similar position [see e.g. Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) BHD [2008] MLJU 1090 (FC)].
2. Cannot be invoked to review the merits of earlier Federal Court decision
In Kerajaan Malaysia v Semantan Estates (1952) Sdn Bhd [2019] 2 MLJ 609, Ahmad Maarop PCA held that:
“The inherent power of this court under r 137 cannot be invoked to review its own decision on its merits.”[2]
This position has consistently been taken by the Federal Court [see e.g. Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2022] 1 MLJ 1 (FC), at para 29; TR Sandah ak Tabau & Ors (suing on behalf of themselves and 22 other proprietors, occupiers, holders and claimants of native customary rights (NCR) land situated at Rumah Sandah and Rumah Lajang, Ulu Machan, 96700 Kanowit, Sarawak) v Director of Forest, Sarawak & Anor and other appeals [2019] 6 MLJ 141 (FC), at para 13; Chan Yock Cher v Chan Teong Peng [2005] MLJU 673 (FC)].
3. Not intended to operate as another tier of appeal
Tengku Maimun CJ was of the view, in Yong Tshu Khin & Anor v Dahan Cipta Sdn Bhd & Anor and other appeals [2021] 1 MLJ 478 (“Yong Tshu Khin”), that:
“The review process is not intended to give the losing litigant a second bite at the proverbial cherry. Motions for review are not meant to operate as another tier of appeal. It is confined to the very specific purpose to prevent a manifest miscarriage of justice. While ‘miscarriage of justice’ is not an easy phrase to define, the development of our case law makes it abundantly clear that the correctness of a decision of the Federal Court is not, per se, a valid reason to seek a review of it. The public policy reason for setting this high threshold is premised on a simple fact that there must be finality to litigation, and if we may add: due respect to the decision of the final court of appeal.”[3] (Emphasis mine)
Nivesh Nair a/l Mohan v Dato’ Abdul Razak bin Musa, Pengerusi Lembaga Pencegahan Jenayah & Ors [2021] 5 MLJ 320 referred to and relied upon the above dictum in Yong Tshu Khin.[4]
4. Will only be successfully invoked in exceptional circumstances
The Federal Court in Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) BHD [2008] MLJU 1090 provided some circumstances in which the Federal Court could exercise its power to review:
“(a) that there was a lack of quorum e.g. the court was not duly constituted as two of the three presiding judges had retired (Chia Yan Tek & Anor v Ng Swee Kiat & Anor [2001] 4 MLJ 1);
(b) the applicant had been denied the right to have his appeal heard on merits by the appellate court (Megat Najmuddin bin Dato Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385);
(c) where the decision had been obtained by fraud or suppression of material evidence (MGG Pillai v Tan Sri Dato’ Vincent Tan Chee Yioun [2002] 2 MLJ 673);
(d) where the court making the decision was not properly constituted, was illegal or was lacking jurisdiction, but the lack of jurisdiction is not confined to the standing of the quorum that rendered the impugned decision (Allied Capital Sdn Bhd v Mohd Latiff bin Shah Mohd and another application [2005] 3 MLJ 1);
(e) clear infringement of the law (Adorna Properties Sdn Bhd v Kobchai Sosothikul [2006] 1 MLJ 417);
…
(g) where an applicant under r 137 has not been heard by this court and yet through no fault of his, an order was inadvertently made as if he had been heard (Raja Prithwi Chand v Sukhraj Rai [AIR] 1941);
(h) where bias had been established (Taylor & Anor v Lawrence & Anor [2002] 2 All ER 353);
(i) where it is demonstrated that the integrity of its earlier decision had been critically undermined eg where the process had been corrupted and a wrong result might have been arrived at (Re Uddin [2005] 3 All ER 550);
(j) where the Federal Court allows an appeal which should have been consequentially dismissed because it accepted the concurrent findings of the High Court and Court of Appeal (Joceline Tan Poh Choo & Ors v V Muthusamy [2007] 6 MLJ 485).”
5. There must have been an error which obviously was an injustice
Tun Zaki Azmi CJ in Badan Peguam Negara v Kerajaan Malaysia [2009] 2 MLJ 161 held the following:
“Before the application can succeed, he must be able to show on the face of the record that there was injustice. That error must be obvious on the face of the record. It should be able to be seen just by reading the record that there was an error which obviously was an injustice … It cannot apply where a decision of this court is only questioned, whether in law or on the facts of the case.”[5] (Emphasis mine)
This test was applied by subsequent Federal Courts [see e.g. Golden Star & Ors v Ling Peek Hoe & Ors [2021] 2 MLJ 259 (FC), at para 43].
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by Joshua Wu Kai-Ming | Sep 28, 2021 | Law
Malaysian defamation law has received significant judicial deliberation by the apex court over the past few years.
This includes determinations on whether governments, government/public officials, and political parties are able to bring and maintain defamation suits.
Governments
In Chong Chieng Jen v Government of State of Sarawak & Anor [2019] 3 MLJ 300 (“Chong Chieng Jen“), the Federal Court unanimously upheld the Court of Appeal’s decision and held:
“The right of the government including the State Government of Sarawak to sue including to sue for defamation is statutorily provided under s 3 of [the Government Proceedings Act 1956]. Hence, the English common law principle expounded in Derbyshire does not apply.”[1]
After the decision, the Appellant filed for a review of the Federal Court’s decision pursuant to Rule 137 of the Rules of the Federal Court 1995.[2]
The Appellant was, unfortunately, unsuccessful as another panel of the Federal Court unanimously dismissed the Appellant’s application for review.[3]
The legal position, at the present moment, is that governments can initiate and maintain defamation suits.
Government Officials
In Lim Guan Eng v Ruslan bin Kassim [Federal Court Civil Appeal No. 02(f)-61-07/2019(W)] which was heard together with Lim Guan Eng v Dato’ Ibrahim Ali & Anor [Federal Court Civil Appeal No. 02(f)-61-07/2019(W)] (collectively referred to as ” “), the Federal Court had the following leave question for its determination:
“Does the decision of the Federal Court in Chong Chieng Jen v The State Government of Sarawak [2019] 1 CLJ 329 allow a Government Official to sue for defamation in his or her official capacity bearing in mind the decision in Derbyshire County Council v Times Newspaper Ltd & Ors [1993] 1 All ER 1011, not being applicable under Malaysian law?”[4]
In Chong Chieng Jen v The State Government of Sarawak [2019] 1 CLJ 329, the Federal Court unanimously held that:
i. pursuant to Section 3 of the Government Proceedings Act 1956, Government’s could sue including for defamation;[5] and
ii. the principle in & [1993] 1 All ER 1011, that it is contrary to the public interest for organs of government to have a right to sue for defamation, does not apply in Malaysia.[6]
The Appeals were essentially an attempt to clarify whether, in light of Chong Chieng Jen, government officials too have the right to sue for defamation.
Amongst others, the majority of the Federal Court in the Appeals (2-1) were of the view that:
i. the Appellant brought the defamation action personally and not in his official capacity;[7] and
ii. Chong Chieng Jen was irrelevant as it was about the right of the State Government to sue for defamation whereas the Appeals were about an individual’s right, albeit a public official, to sue for defamation.[8]
Notwithstanding the above, the Federal Court allowed the appeal[9] and opined that:
“… a public official must enjoy the same rights as other citizens and be allowed to sue for damages for defamation in any individual capacity whether in relation to personal or official matters. He need not avail himself to the provisions of the Government Proceedings Act 1956. Accordingly, the decision in the case cannot be sustained.”[10] (emphasis mine)
The current position, as per the Appeals, is that government/public officials can bring an action for defamation in their individual capacity in relation to personal or official matters.
Political Parties
The Malaysian Chinese Association, had initiated a defamation suit against Mr. Lim Lip Eng (the Member of Parliament for Kepong) over the latter’s claims that the former had misused Government and public funds allocated for National Type Chinese Schools.[11]
Mr. Lim applied to strike out the defamation suit but was unsuccessful.[12]
On appeal to the Court of Appeal, Mr. Lim was once again unsuccessful.[13]
Mr. Lim then sought leave to appeal to the Federal Court and obtained leave on the legal question whether a political party can maintain a suit for defamation in the light of the decisions in Goldsmith v Bhoyrul (1998) and Rajagopal v Jayalalitha (2006).[14]
Recently, the Federal Court unanimously answered the leave question in the negative[15] and allowed Mr. Lim Lip Eng’s appeal.
The legal position as it stands is that political parties cannot bring an action for defamation.
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by Joshua Wu Kai-Ming | Oct 21, 2020 | Law
On 11th March 2010, the High Court granted Indira Gandhi “custody of [her] three children. The custody order also directed [Patmanathan a/l Krishnan (“Patmanathan“)] to deliver the youngest child, Prasana Diksa, to [Indira Gandhi] immediately.”[1]
Indira Gandhi commenced commital proceedings against Patmanathan “for willfully refusing to comply with the civil High Court custody order and indeed in flagrant violation of it. She had prayed for an order of committal of the husband to prison until the contempt is purged. Leave was obtained on 18 October 2013 and this notice of application for an order of committal was filed on the same day.”[2]
The learned High Court judge, Justice Lee Swee Seng (now JCA), found Patmanathan guilty of contempt of court and issued a warrant of committal and a committal order.[3]
The High Court also granted a recovery order directed at the police, pursuant to Section 53 of the Child Act 2001.
Patmanathan appealed the matter to the Court of Appeal and his appeal was subsequently struck out.[4]
This means Patmanathan was found guilty of contempt of court for failing to deliver his youngest child, Prasana Diksa, to Indira Gandhi.
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by Joshua Wu Kai-Ming | Mar 29, 2019 | Law
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