FEDERAL COURT OF MALAYSIA
|
www.ipsofactoJ.com/appeal/index.htm [2002] Part 2 Case 2 [FCM] |
|
|
FEDERAL COURT OF MALAYSIA |
|
Coram |
Tengku Idris Shah - vs - Dikim Holdings Sdn Bhd |
|
|
AHMAD FAIRUZ CJ (MALAYA) HAIDAR MOHD NOOR FCJ DENIS J.F. ONG JCA |
6 FEBRUARY 2002 |
Judgment
Haidar Mohd Noor, FCJ
The matter before us is in respect of a reference of constitutional questions by the High Court pursuant to s 84 of the Courts of Judicature Act 1964 (Act 91) ("CJA").
It was agreed by the parties as per order dated July 30, 2001 that the following questions be referred to the Federal Court for determination under s 84 of the CJA-
Whether the plaintiff, the Regent of the State of Selangor, who is appointed to exercise the functions as "Sultan" is a "Ruler" for the purposes of Articles 181, 182 and 183 of the Federal Constitution (as amended by Am Act A848) having regard to the aforesaid provisions and the interpretation of "Ruler" as defined in Article 160 of the Federal Constitution?
If the answer to (1) is in the affirmative, does the Special Court have exclusive jurisdiction to adjudicate on the plaintiffs claim to the exclusion of the High Court of Malaya?
If the answer to (1) or (2) above is in the affirmative does the Special Court have exclusive jurisdiction to adjudicate on the defendant's counterclaim to the exclusion of the High Court of Malaya (subject to the Attorney-General's consent pursuant to Article 183 of the Federal Constitution)?
If the answer to (2) or (3) above is in the negative do the ordinary courts which are constituted under Part IX of the Federal Constitution have jurisdiction to adjudicate on the plaintiffs claim and the defendant's counterclaim?
There are other terms also embodied in the order dated July 30, 2001, inter alia, on costs. It was also ordered that all proceedings be stayed pending the decision of the Federal Court.
In order to assist the Federal Court in deciding the questions and as is provided by s 84(2) of the CJA, the following statement of agreed facts was filed therein by the parties -
On May 6, 1998, the plaintiff filed a writ summons and statement of claim against both defendants. The defendants' filed a defence and counterclaim on July 3,1998 which was subsequently amended by court order dated January 7, 1999. A reply and defence to counterclaim was filed on July 17, 1998.
On April 24, 1999, the plaintiff was appointed Regent of Selangor to exercise the functions as "Sultan" when His Highness's father, DYMM Sultan Salahuddin Abdul Aziz Shah lbni AI-Marhum Sultan Hisamuddin Alam Shah was appointed to the throne as the 11th Yang Di-Pertuan Agong.
On July 27, 1999, the plaintiff's solicitors, Messrs Lim Kian Leong & Co, wrote to the Attorney-General's Chambers to seek advice in respect of the further conduct of this matter. A response was received vide the letter dated September 7, 1999 from the Attorney-General's Chambers stating that in light of His Highness's appointment as "Regent", further action is to be commenced in the Special Court and the consent of the Attorney-General will be required for the same. On September 30, 1999, the defendant's solicitors, Messrs Soo Thien Ming & Nashrah wrote to the Attorney-General's Chambers for consent that the defendants continue their counterclaim in the Special Court.
On October 13, 2000, both parties were granted audience with Tan Sri Datuk Sri Peguam Negara and issues of jurisdiction, among others, were discussed.
On November 4, 2000, the defendants through their solicitors wrote to the Attorney-General's Chambers expressing their reasons why the matter should continue in the High Court and not the Special Court and asking for confirmation that this matter be continued in the High Court and not the Special Court.
On November 15, 2000, a letter was issued by the Attorney-General's Chambers indicating that this issue be determined by the High Court of Malaya.
The defendants subsequently disagreed that the matter should proceed in the Special Court. The plaintiff filed two applications, one to withdraw the claim in the High Court with liberty to file afresh in the Special Court ("application to withdraw") and the other to strike out the defendants' counterclaim. On April 2, 2001, the application to withdraw was heard by the learned Senior Assistant Registrar and on April 4, 2001, she allowed the plaintiff's application to withdraw with costs to be taxed ("the said order").
Both parties lodged their appeals on the said order.
On July 30, 2001, The Honourable Judge, Mr. Justice Datuk Vincent Ng Kim Khoay by consent ordered that a constitutional reference be made to the Federal Court under s 84 of the Courts of Judicature Act 1964 of the questions which are hereinbefore attached, p1 of the record of appeal.
The application to strike out the counterclaim, the appeals lodged by both plaintiff and defendants in respect of the said order is pending and is stayed in light of the reference.
On July 9, 2001, the plaintiff filed their claim in the Special Court and the defendant entered conditional appearance on July 19, 2001.
This matter is also stayed pending the reference to the Federal Court.
After hearing counsel for both parties, we gave an oral judgment answering question (1) in the negative and in view of our answer to question (1), there was no need really to answer the remaining questions. It merely means that Articles 181, 182 and 183 of the Federal Constitution ("Constitution") in relation to the jurisdiction of the Special Court are not applicable to the plaintiff though he has been appointed as a Regent to exercise the functions of Sultan (Ruler) under Article 21(4) of the Laws of the Constitution of Selangor 1959, which reads -
|
His Highness shall appoint a Regent or a Council of Regency, as to Him seems most expedient to exercise His function as Sultan in the event of His being elected to the office of the Yang di-Pertuan Agong or His exercising the functions of the office of the Yang di-Pertuan Agong for a period exceeding fifteen days. |
It is to be noted that His Highness has a choice of appointing a Council of Regency instead of a Regent under Clause 4 of Article 21. It is a matter of the prerogative of His Highness.
When the suit was filed in the High Court at Kuala Lumpur by the plaintiff His Highness was not appointed the Regent yet. The plaintiff was appointed the Regent on April 24, 1999 when His Highness's father was appointed the 11th Yang di-Pertuan Agong. It matters not to us about the status of the plaintiff at the time of the filing of the suit as the issue before us is the interpretation of "Ruler", that is, whether the plaintiff comes within the meaning of "Ruler" under Article 160 for the purposes of Articles 181, 182 and 183 of the Constitution.
As intimated, we now proceed to give our reasons.
"Ruler" is defined under Article 160(2) of the Constitution -
|
(a) |
in relation to Negeri Sembilan, means the Yang di-Pertuan Besar acting on behalf of himself and the Ruling Chiefs in accordance with the Constitution of that State; and |
|
(b) |
in the case of any State, includes except in Clause (2) of Article 181 and the Third and Fifth Schedules, any person who in accordance with the Constitution of that State exercises the functions of the Ruler; [Emphasis added] |
Clause 2 of Article 181 in its original form reads -
|
No proceedings whatsoever shall be brought in any court against the Ruler of a State in his personal capacity. |
By the Constitution (Amendment) Act 1993 (Act A 848) which came into force on March 30, 1993 Clause 2 of Article 181 was amended by the insertion of the words "except in the Special Court established under Part XV" after the word "capacity". The amended Article 181(2) now reads -
|
No proceedings whatsoever shall be brought in any court against the Ruler of a State in his personal capacity except in the Special Court established under Part XV. |
The purpose of the amendment to Article 181(2) clearly was to take away the legal immunity hitherto enjoyed by the Ruler in respect of anything done or omitted to be done by him in his personal capacity. It seems clear to us that Articles 182 and 183 were added in view of the amendment to Article 181(2) which gives exclusive jurisdiction to the Special Court. These amendments were made at the proposal of the Conference of Rulers. We will touch on this later in this judgment.
Article 182 established the Special Court, the forum to hear any proceedings by or against the Ruler of a State in his personal capacity. Article 183 restricts the action, be it civil or criminal, against the Ruler of a State in respect of anything done or omitted to be done by him in his personal capacity except with the consent of the Attorney-General personally. The purpose of this provision is to protect the Ruler of a State against any frivolous or vexatious litigation. Articles 182 and 183 were added by Act A 848 and came into force on March 30, 1993. In short, any action or omission on the part of the Ruler of a State in his personal capacity, be it civil or criminal, the Special Court has the exclusive jurisdiction to adjudicate on them to the exclusion of the High Court.
We do not think it is beyond dispute that the original Article 181(2) is meant to accord legal immunity to the Ruler of a State and not to any person exercising the functions of a Ruler. This is clearly shown by the exception to the meaning of "Ruler" in Article 160(2), paragraph (b) of the Constitution which would otherwise include any person exercising the functions of the Ruler of a State.
The Federal Court in Othman Baginda v Ombi Syed Alwi Syed ldrus [1981] 1 MLJ 29 had the occasion to consider Article 160(2) and the original Article 181(2) of the Constitution. Though the Federal Court there was dealing with, inter alia, the legal immunity issue in respect of the Ruling Chiefs of Negeri Sembilan it points to the fact that legal immunity is accorded to the Ruler and not extended to a person exercising the functions of a Ruler. This is what Salleh Abbas, FCJ (as he then was) in the majority judgment said at p 35-
|
That the definition under Article 160(2) is a functional one is clearly reflected by the second limb of the definition as regards other states. Here while the definition of "Ruler" includes "as person who in accordance with the Constitution of that State exercises the functions of the Ruler", it excludes such person from being regarded as a Ruler for the purpose of Article 181(2), (dealing with judicial immunity), the First (should be Third?) Schedule (dealing with the election of the Yang di-Pertuan Agong) and the Fifth Schedule (dealing with the Conference of Rulers). Such exclusion is effected by the words "except in Article 181 (2) and the Third and Fifth Schedules". Thus, for these purposes - i.e. Article 181(2), the Third and Fifth Schedules the status of a Ruler who is a descendent of a royal ancestor is preserved arid not extended to others. He is a Ruler in the full sense of the word, both functionally and status wise. |
Further, Suffian, LP, in the same case, though delivering a dissenting judgment, put legal immunity as usually an attribute of sovereignty (see p38). Salleh Abbas, FJ, himself was of the same view when he said at p 35 thus-
|
It is the sovereignty possessed by the Rulers which make them immune from judicial proceedings in their personal capacity. |
We respectfully agree with the views expressed therein. It follows that a person exercising the functions of a Ruler of a State cannot be said to possess sovereignty. Sovereignty, in our view, is personal to the Ruler. Counsel for the plaintiff at p 4 of her skeletal submission conceded that in regard to Article 181(2) the plaintiff is not considered a Ruler but contended that the plaintiff is a "Ruler" for the purposes of Articles 181(1), 182 and 183 of the Constitution. Simply put, the meaning of "Ruler" in Article 160(2) excludes the plaintiff from Article 181(2), the Third and Fifth Schedules but not Articles 181(1), 182 and 183. The counsel for the plaintiff took, in our view, a literal approach to the interpretation of the relevant Articles and at first blush, she would appear to be right.
However, counsel for the defendants urged upon us to consider the purposive approach to remedy the anomaly or the mischief rule of interpretation ought to be used in the interpretation of the amended Article 181(2) and Articles 182 and 183. Can we adopt this approach?
The purposive approach has been adopted by our courts following the English cases. M.T. Chang, FJ, speaking for the Federal Court in United Hokkien Cemeteries, Penang v Majlis Bandaran, Pulau Pinang [1979] 2 MLJ 121 in considering whether the columbarium should be exempted from assessment just like the cemetery grounds and the crematorium, stated at p 123-
|
The question of the determination of the exact nature and extent of a taxing act is rather different from that of the nature and extent of exemptory provisions. Then, in my view, it is a matter for the purposive approach to replace the literal. As was said by Lord Diplock in Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 at p 899, the literal method of construction is now completely out of date and has been replaced by a 'purposive approach'. It ought to be noted that this purposive approach is not a modem fashion. Since the 17th century, it has been the task of the judiciary to interpret an Act "according to the intent of them that made it": Coke 4 Inst 330. |
On the same page, His Lordship proceeded to quote a passage in Northaman v Barnet Council [1978] 1 WLR 221 where Lord Denning MR said at p 228-
|
In all cases now in the interpretation of statutes, we adopt such a construction as will 'promote the general legislature purpose' underlying the provision. It is no longer necessary for Judges to wring their hands and say: 'There is nothing we can do about it.' Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the Judges can and should use their good sense to remedy it by reading words in, if necessary so as to do what Parliament would have done, had they had the situation in mind. |
This purposive approach has now been given statutory recognition by our Parliament enacting s 17A in the Interpretation Acts 1948 and 1967 (Act 388) which reads -
|
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. |
Recently, the Federal Court in a majority judgment in Lam Kong Co Ltd v Thong Gum Co Ptd Ltd [2000] 3 AMR 3304, Mohamed Dzaiddin, FCJ, (now CJ Malaysia) took the purpose or object of the legislature as provided by s 17A of the Interpretation Acts 1948 and 1967 (Act 388) for the construction of s 68(1)(a) of the CJA on the "filter" principle. In view of the statutory recognition we can and should adopt a purposive approach in the interpretation of "Ruler" for the purposes of Articles 181, 182 and 183.
In pursuing the purposive approach, one of the matters that can assist this court in interpreting the amended Article 181 (2) and Articles 182 and 183 of the Constitution is to refer to the Parliamentary reports or Hansard. This is permissible as held by the Federal Court in Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 AMR 2103. This is what Edgar Joseph Jr, FCJ, speaking for the court, after reviewing a number of cases from different jurisdictions, said at p 2124-
|
We have also considered the cogent criticisms of the majority view in Pepper v Hart, by Mr. J H Baker in his article entitled "Statutory Interpretation & Parliamentary Intention' [1993] 52 Camb LJ 353; by Mr. Brian Davenport in his article entitled, 'Perfection - But At What Cost?' [1993] 109 LQR 149; and by Mr. David Miers in his article entitled 'Taxing Perks and Interpreting Statutes' [1993] 56 MLR 695. Nevertheless, we have arrived at the conclusion that we should follow the recent trend of the cases decided in the United Kingdom, Australia, New Zealand and Singapore and permit a relaxation of the exclusionary rule by allowing a reference to Hansard as an aid to statutory interpretation where the enactment is ambiguous or obscure, or which if literally construed might lead to absurdity and provided always that the statement reported in Hansard was made by a Minister or other promoter of a bill. More particularly, we gratefully adopt the passage in the judgment of Lord Browne-Wilkinson in Pepper v Hart, reproduced above. |
The passage quoted with approval in Pepper v Hart [1993] 1 All ER 42 at p 64; [1992] 3 WLR 1032 at p 1056 A-C by Edgar Joseph Jr, FCJ, is at p 2123-
|
My Lords, I have come to the conclusion that, as a matter of law, there are sound reasons for making a limited modification to the existing rule (subject to strict safeguards) unless there are constitutional or practical reasons which outweigh them. In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee any statement other than the statement of the minister or other promoter of the bill is likely to meet these criteria. |
However, we note and agree with the caution put forth by Edgar Joseph Jr, FCJ, at p 2124 as follows -
|
We hasten to add, however, that when resort to Hansard is permissible, that by itself although meriting serious consideration cannot be determinative of the issue since it is only available as an aid to interpretation. To hold otherwise, would amount to substituting the words of the Minister or other promoter of the bill for the words of the statute, and that cannot be the law. |
We also note that Singapore courts have followed the majority judgment in Pepper v Hart. Indeed the rule in Pepper v Hart has now received statutory recognition in Singapore by way of s 2 of the Interpretation (Amendment) Act 1993. May be it is time such a provision be given statutory recognition in our Interpretation legislation as with s 17A referred to earlier. It will give statutory force to the courts to look at the policy speech of the Minister or the promoter of the bill in the Hansard for the purpose of an aid to the interpretation of statutes.
Before proceeding to consider the purposive approach as urged upon us by counsel for the defendants, we need to give consideration to the submission of counsel for the plaintiff on the interpretation of "Ruler" for the purposes of Articles 181, 182 and 183 of the Constitution. The issue is whether the said Articles are ambiguous or obscure or the literal meaning of which leads to absurdity. The argument of counsel for the plaintiff was put this way.
The meaning of "Ruler" in Article 160(2) of the Constitution does not refer to the Ruler of a State per se, but also includes any person who in accordance with the Constitution of a State exercises the functions of the Ruler. It was therefore submitted that the plaintiff as the Regent who exercises the functions as Sultan (i.e. the Ruler of the State) by virtue of Article 21 of the State Constitution of Selangor, comes within the meaning of "Ruler" in Article 160(2), paragraph (b). It was, however, conceded by the counsel for the plaintiff that in the meaning of "Ruler" in paragraph (b) of Article 160(2) there are three circumstances where, as she put it, this wide meaning of "Ruler" is excluded -
Article 181(2);
The Third Schedule;
The Fifth Schedule.
She concluded that the plaintiff, therefore, is a "Ruler" for the purposes of Article 181, Article 182 and Article 183 of the Constitution though for the purposes of Article 181(2) she conceded that the plaintiff is not considered a "Ruler". We would for completeness add that for the purposes of the Third Schedule (dealing with the election of the Yang di-Pertuan Agong) and the Fifth Schedule (dealing with the Conference of Rulers) the plaintiff is not considered a "Ruler" as well. Her contention is that the meaning of "Ruler" in Article 160(2), paragraph (b) was not amended to exclude Articles 182 and 183 like Article 181(2). In other words, Article 160(2) remains intact.
Counsel for the defendants argued that the literal interpretation adopted by the counsel for the plaintiff on the meaning of "Ruler" for the purposes of Articles 181, 182 and 183 would lead to an undesirable situation or absurdity. He put his argument in this way.
It is not disputed that prior to the amendment of Article 181(2) and the addition of Articles 182 and 183, only the Ruler of a State enjoys legal immunity by virtue of the exception given to the meaning of a "Ruler" in paragraph (b) of Article 160(2) of the Constitution. The legal immunity does not extend to a person exercising the functions of a Ruler like the case of the plaintiff. This is the situation prior to the amendment and the addition of the relevant Articles of the Constitution.
Granted that the meaning of "Ruler" in Article 160(2) remaining intact, it can give rise to two interpretations of "Ruler" for Article 181(2) and Articles 182 and 183-
Article 181(2) does not extend to a person exercising the functions of the Ruler.
Articles 182 and 183 would appear to include a person exercising the functions of the Ruler.
That is if the literal approach of interpretation is taken. Such an interpretation would lead to an ambiguity and absurdity as a Regent exercising the functions of the Ruler is not a Ruler for the purposes of Article 181(2), the Third Schedule and the Fifth Schedule and hence the Regent can be sued in the ordinary courts as the establishment of the Special Court by the amendment to Article 181(2) is exclusively reserved to the Rulers personally in respect of actions in their personal capacity but for the purposes of Articles 182 and 183, he is the Ruler and shall sue or be sued in the Special Court for the reason that the meaning of "Ruler" in Article 160(2), paragraph (b) remains intact.
We then have the awkward situation where Article 181(2) excludes the Regent who exercises the functions of the Ruler from the jurisdiction of Special Court and he is within the jurisdiction of the ordinary courts for actions in his personal capacity whereas Articles 182 and 183 would appear to confer the jurisdiction of the Special Court exclusively to him as well when exercising the functions of the Ruler by virtue of Article 182.
Article 182(2) reads-
|
Any proceedings by or against the Yang di-Pertuan Agong or the Ruler of a State in his personal capacity shall be brought in a Special Court established under Clause (1). |
This ambiguity will lead to problems to the ordinary citizens who wish to sue the Regent, that is, which provision shall prevail, Article 181(2) of the Constitution read with Article 160 or Article 182(2) and Article 183 of the Constitution?
There is the further absurd situation herein. As stated earlier in this judgment, there is the prerogative of the Ruler to appoint a Council of Regency as well. We have examined the constitution of all the Malay States and this provision is common to all the Malay States. In the event a Council of Regency is appointed in place of a Regent, is it intended that the members of the Council of Regency when collectively exercising the functions of the Ruler is a "Ruler" for the purposes of Articles 181, 182 and 183? A member of the Council of Regency need not be appointed from members of the Royalty and is it intended therefore that an ordinary person as in the case of Trengganu recently, as was told to us by the counsel for the defendants, would come within the meaning of "Ruler" also? With respect, we did not think so as it will lead to absurdity. By way of analogy, the reasoning in Othman regarding legal immunity to the Ruling Chiefs would support our view.
In order to resolve the ambiguity or absurdity situation, we need to consider the purpose or object of establishing the Special Court, that is, whether the exclusive jurisdiction of the Special Court to try offences committed in the Federation by the Ruler of a State and all civil cases by or against the Ruler of a State notwithstanding where the cause of action arise is to include a person exercising the functions of the Ruler of a State as in the case of the plaintiff here?
As stated earlier s 17A of the Interpretation Acts 1948 and 1967 (effective from July 24, 1997 vide Act A996/97) now permits for a purposive approach quite apart from the authorities cited earlier on. It has been given, so to say, statutory recognition. A reading of Articles 182 and 183 under Part XV of the Constitution showed the composition, jurisdiction, powers, procedure of the Special Court including the requirement of the consent of the Attorney-General personally in respect of action, civil or criminal, to be instituted against the Ruler of a State in respect of anything done or omitted to be done by him. These are matter of details.
The important matter that needs to be considered is the purpose or object of the establishment of the Special Court, which is the amendment to Article 181(2). Once the object or purpose is determined it follows, in our view, that the Special Court stated under Part XV must necessarily be read with the object or purpose of the amendment to Article 181(2). Such a construction will promote the general legislative purpose underlying the provision in line with s 17A of the Interpretation Acts 1948 and 1967. Once such a construction is given, the word "Ruler" in Articles 182 and 183 should and must mean "Ruler" referred to in Article 181(2) read with Article 160(2), paragraph (b).
As is not disputed "Ruler" under Article 160(2), paragraph (b) for the purposes of Article 181(2) excludes a person exercising the functions of the Ruler and it follows that "Ruler" under Articles 182 and 183 is not intended to include a person exercising the functions of the Ruler as in the case of the plaintiff. The exclusive jurisdiction of the Special Court as envisaged in the amendment to Article 181(2) is to be accorded to the Ruler and not to a person exercising the functions of the Ruler by virtue of the exception to Article 160(2), paragraph (b) of the Constitution. To read Article 182(2) in isolation without reference to the intent and purpose of the amendment to Article 181(2) would lead to an absurd situation. As conceded by the counsel for the plaintiff Article 181(2) does not cover a person exercising the functions of the Ruler and the amendment to Article 181(2) giving the exclusive jurisdiction of the Special Court to the Ruler of a State therein similarly cannot be intended to include a person exercising the functions of the Ruler as in the case of the plaintiff.
In addition thereto, it is permissible for the courts, as held by the Federal Court in Chor Phaik Har, supra, to resort to the Hansard as an aid to interpretation. We can therefore look at the policy speech of the Minister when tabling the bill for the purpose or the object of the bill as an aid to interpretation.
The bill to amend the Constitution was first moved by the Prime Minister on January 18, 1993. In his speech, the Prime Minister touched on the history of the Rulers from the time of the British Rule and concluded that legal immunity was accorded to the Rulers in view of the sovereignty possessed by the Rulers. However, in view of the happening of certain events involving one or two Rulers, the Government thought it was time that the citizen be given protection and further, the role of a Ruler being a Constitutional one, the legal immunity hitherto enjoyed by the Rulers in their personal capacity should be removed.
The bill of January 18, 1993 in its original form for the purpose of the removal of the legal immunity, inter alia, proposed amendments to Articles 32 and 181 of the Constitution. The original proposed amendments to Article 181 as per Clause 7 of the Bill read -
|
(a) |
in Clause (2), by substituting for the words "in his personal capacity" the words "in respect only of anything done or omitted to be done by him in the exercise or purported exercise of his functions under any written law"; and |
||
|
(b) |
by inserting, after Clause (2), the following Clause:
|
A saving provision was provided by Clause 8 which reads -
|
For the avoidance of any doubt, it is hereby declared that no proceedings whatsoever shall be brought in any court against the Ruler of a State in his personal capacity in respect of anything done or omitted to be done by him before the coming into force of this Act. |
It is clear therefore that the intention of the legislature in the proposed amendments was to remove altogether the legal immunity hitherto given to the Ruler of a State. It means that any legal proceedings by or against the Ruler in his personal capacity will be within the jurisdiction of the ordinary courts just like the ordinary citizen. The Ruler's legal immunity is preserved in respect of his functions under any written law.
The Bill was accordingly passed by Parliament. However, when the Bill was sent to the Yang di-Pertuan Agong for His Highness's assent, the Prime Minister informed Parliament that the Conference of Rulers, through the Yang di-Pertuan Agong, gave the reasons why no assent could be given and suggested amendments for the consideration of Parliament. It was in this situation that the Prime Minister moved the Bill again on March 8, 1993 and taking into consideration the proposals of the Conference of Rulers moved in Parliament for Article 181(2) be amended and Articles 182 and 183 under a new Part XV be added. The proposed amendments and additions were subsequently passed by Parliament.
This is what the Prime Minister said, inter alia, at p 13986 of the Hansard moving the Bill again on March 8, 1993 [translation]-
|
Now a special body is set up for trial of Rules who have breached the laws of this country. The Special Court is not meant for commoners but for Rulers. This will not diminish the special position of Rulers in the sense that they may not be sued in the ordinary courts, but will enhance their position with the creation of a court which is specific for them. |
From the above passage and from a perusal of the speech of the Prime Minister it is clear that no mention was made at all that the exclusive jurisdiction given to the Special Court to the exclusion of the ordinary courts in respect of the Ruler is to include a person exercising the functions of the Ruler. Clearly the object or purpose of the amendment to Article 181(2) and the addition of Articles 182 and 183 was a compromise to the Rulers where their legal immunity was taken away in respect of any legal proceedings in their personal capacity. The mischief that was aimed by the amendment to Article 181(2) and the addition of Articles 182 and 183 clearly was to take away the legal immunity hitherto enjoyed by the Rulers and the establishment of the Special Court was a compromise. If the literal approach of interpretation is taken as submitted by the counsel for the plaintiff it will lead to absurdity for the reasons stated earlier on.
For the record, Mr. Abdul Aziz, Senior Federal Counsel, appearing for the Attorney-General by way of watching brief, supported the submission of counsel for the defendants.
In the circumstances and for the reasons stated, we answered the first question in the negative. In view of our answer to the first question, there would be no need really to answer the remaining question as it is clear that only the Rulers and not the persons exercising the functions of the Rulers have the exclusive recourse to the Special Court.
By consent, each party agreed to bear his own costs of the proceedings before us.
My learned Chief Judge Malaya, has seen my judgment and agreed with the reasons stated therein.
Denis J.F. Ong, JCA
This case comes before the Federal Court in the form of a special case referred by the High Court in Kuala Lumpur pursuant to s 84 of the Courts of Judicature Act 1964 (Act 91) for our decision on four questions namely:-
|
(1) |
Whether the plaintiff, the Regent of the State of Selangor, who is appointed to exercise the functions as "Sultan" is a "Ruler" for the purposes of Articles 181, 182 and 183 of the Federal Constitution (as amended by Act A848) having regard to the aforesaid provisions and the interpretation of "Ruler" as defined in Article 160 of the Federal Constitution? |
|
(2) |
If the answer to (1) is in the affirmative, does the Special Court have exclusive jurisdiction to adjudicate on the plaintiffs claim to the exclusion of the High Court of Malaya? |
|
(3) |
If the answer to (1) or (2) above is in the affirmative does the Special Court have exclusive jurisdiction to adjudicate on the defendants' counterclaim to the exclusion of the High Court of Malaya (subject to the Attorney-General's consent pursuant to Article 183 of the Federal Constitution)? |
|
(4) |
If the answer to (2) or (3) above is in the negative do the ordinary courts which are constituted under Part IX of the Federal Constitution have jurisdiction to adjudicate on the plaintiffs claim and the defendants' counterclaim? |
We heard submissions on October 22, 2001 from both learned counsel Miss Low Chi Cheng for the appellant (the plaintiff) and Mr. Bastian Vendargon for the respondents (the defendants) and also queried Mr. Abdul Aziz Abdul Rahim Senior Federal Counsel on certain points. He was present to hold a watching brief for the Attorney-General (AG). The submissions were confined solely to question (1). At the conclusion of the hearing we unanimously answered it in the negative. I now give my reasons.
The facts agreed in the High Court between the parties to assist the Federal Court in deciding those questions which have arisen are as follows:
On May 6, 1998, the plaintiff led a writ of summons and statement of claim against both defendants in Suit No D1-22-1350-1998 (the said suit). The defendants filed a defence and counterclaim on July 3, 1998 which was subsequently amended by court order dated January?, 1999. A reply and defence to the counterclaim was filed on July 7,1998.
On April 24, 1999 the plaintiff was appointed Regent of Selangor to exercise the functions as "Sultan" when His Highness's father, DYMM Sultan Salahuddin Abdul Aziz Shah lbni AI-Malhum Sultan Hisamuddin Alain Shah was appointed to the throne as the 11th Yang Di-Pertuan Agong.
On July 27, 1999, the plaintiffs solicitors, Messrs Lim Kian Leong & Co, wrote to the AG's Chambers to seek advice in respect of the further conduct of this matter. A response was received vide the letter dated September 7, 1999 from the AG's Chambers stating that in the light of His Highness's appointment as "Regent" further action is to be commenced in the Special Court and the consent of the AG will be required for the same. On September 30, 1999, the defendants' solicitors Messrs Soo Thien Ming & Nashrah wrote to the AG's Chambers for content that the defendants continue their counterclaim in the Special Court.
On October 13, 2000, both parties were granted audience with YB Tan Sri Datuk Sri Peguam Negara and issues of jurisdiction, among others, were discussed.
On November 4, 2000, the defendants through their solicitors wrote to the AG's Chambers expressing their reasons why the matter should continue in the High Court and not in the Special Court.
On November 15, 2000, a letter was issued by the AG's Chambers indicating that this issue be determined by the High Court of Malaya.
The defendants subsequently disagreed that the matter should proceed in the Special Court. The plaintiff filed two applications, one to withdraw the claim in the High Court with liberty to file afresh in the Special Court ("application to withdraw") and the other to strike out the defendants' counterclaim. On April 2, 2001, the application to withdraw was heard by the learned Senior Assistant Registrar and on April 4, 2001, she allowed the plaintiffs application to withdraw with costs to be taxed ("the said order").
Both parties lodged their appeals against the said order.
On July 30, 2001, the Judge of the High Court by consent of the parties ordered that a reference be made to the Federal Court under s 84 of Act 91 of the four questions.
The application to strike out the counterclaim, the appeals by both parties against the said order are pending and were stayed in the light of the reference.
On July 9, 2001, the plaintiff filed their claim in the Special Court and the defendants entered conditional appearance on July 19, 2001.
This matter was also stayed pending the reference to the Federal Court.
In respect of agreed fact (1), it is noteworthy from the statement of claim in the record of appeal that the cause of action was in contract based on an agreement in writing dated July 10, 1995 (the SPA) entered into between the plaintiff as vendor and the first and second defendants as purchasers for the sale and purchase of certain shares (allegedly identified in the SPA) for the purchase price of RM100 million. The claim of the plaintiff was for RM35 million being the unpaid balance of the purchase price and also for interest and cost. The amended counterclaim of the defendants was for RM25 million based on a supplemental agreement dated January 15, 1996 (the SA). Neither the SPA nor the SA were included as part of the record of appeal.
In connection with agreed fact (2), it is noted that the appointment of the plaintiff as Regent was published in the Government of Selangor Gazette (Sel PU 19/99) a copy of which was produced at the hearing before us by the Senior Federal Counsel at my request. Such appointment took effect on April 24. 1999. The text in English of Sel PU 19/99 so far as is relevant reads as follows:
|
By the Grace of Allah, His Royal Highness SALAHUDDIN ABDUL AZIZ SHAH AL-HAJ IBNI ALMARHUM SULTAN HISAMUDDIN ALAM SHAH AL-HAJ, .... OF THE STATE OF SELANGOR AND ALL ITS DEPENDENCIES, SULTAN AND RULER: WHEREAS by Article XXI of the First Part of the Laws of the Constitution of Selangor. 1959. it is provided, inter alia, that if His Royal Highness the Sultan is selected to the office or exercises the functions of the Yang di-Pertuan Agong, He shall appoint a Regent or .... to exercise His functions as Sultan: AND WHEREAS the Conference of Rulers at its 182nd Meeting on 26th day of February 1999 .... has elected His Royal Highness the Sultan to be the 11th Yang di-Pertuan Agong: AND WHEREAS His Royal Highness the Sultan will be holding the office of Yang di-Pertuan Agong commencing on 26th day of April 1999: NOW THEREFORE, in accordance with the provisions of Article XXI of .... 1959, His Royal Highness the Sultan has been graciously pleased to appoint DULI YANG TERAMAT MULIA TENGKU IDRIS SHAH IBNI SULTAN SALAHUDDIN ABDUL AZIZ SHAH AL-HAJ .... RAJA MUDA SELANGOR, to be REGENT during the period that His Royal Highness the Sultan is holding the office of Yang di-Pertuan Agong, for HIM as His representative and in accordance with the Laws of the Constitution to do, exercise and perform all acts, rights and duties falling to be done, exercised and performed by the Ruler of the State. GIVEN at Istana Alam Shah, Klang this 24th day of April 1999 .... By His Royal Highness's Command. ABU HASSAN OMAR, The Chief Minister of Selangor |
On agreed fact (3) the plaintiffs solicitors queried -
Whether the said suit should properly be brought in or be transferred to the Special Court as provided under Article 182(2) of the federal Constitution; and,
Whether the consent of the AG under Article 183 must be obtained by the defendants before making a counterclaim against the plaintiff.
The basis for such queries was that in the Iight of his appointment as Regent the plaintiff was, to all intents the "Ruler". These queries were addressed by letter dated July 27, 1999 to the AG's Chambers by the plaintiff's solicitors and copied to the solicitors for the defendants. Without copying to the latter, the AG's advice dated September 7, 1999 to the former on both queries was in the affirmative. Having been informed by the plaintiff's solicitors of such advice the defendants' solicitors requested the AG in writing dated September 30, 1999 for the requisite consent. The AG's reply dated "September 18, 1999" was received by the defendants' solicitors on November 24, 1999. Here, it is observed that the date "September 18, 1999" was obviously mistaken having regard to paragraph 2 of that reply which specifically referred to the letter dated September 30, 1999. The reply must have been made at any time between September 30, 1999 and November 24, 1999. In any event the consent in writing was not forthcoming in the reply; instead, the defendants' solicitors were informed that under Article 183 it should have been obtained before (and not after) the counterclaim was made and suggested a meeting of the parties with the AG. The purpose of bringing these out is lo give a fuller picture of what is comprehended by agreed fact (3).
On agreed fact (5) the solicitors' letter recalled that the AG informed at that meeting that since the plaintiff was then performing duties as "Regent" the said suit should appropriately be tried in the Special Court in accordance with the Federal Constitution and advised both solicitors present to take appropriate action. By that letter the defendants' solicitors openly stated the defendants' disagreement with such advice for the following reasons:-
At the time the claim and counterclaim was filed, the plaintiff was not yet a Regent. Thus he was within the jurisdiction of the High Court.
Though performing the duties and functions of a Regent, on November 4, 2000, he was not a "Ruler" for the purpose of Article 181(2). The judgment of Salleh Abas FJ (as he then was) in Othman Baginda v Ombi Syed Alwi Syed ldrus [1981] 1 MLJ 29 at p35 was cited as authority for this point.
The purpose of bringing these out was to indicate the views expressed by the AG at the meeting referred to in agreed fact (4) and also the reasons expressed by the defendants' solicitors for their disagreement therewith.
On question (1) of this reference. Miss Low makes the following points namely,
That the definition of "Ruler" in Article 160(1) is a wider definition in the sense that it refers to both the incumbent Ruler and the Regent appointed to exercise the functions as Sultan.
The only instances where such wider definition is excluded from application are those specifically mentioned in limb (b) of that definition, that is to say. Article 181(2), the Third Schedule and the Fifth Schedule to the Federal Constitution. Consequently, that definition does not apply to "Ruler" in Article 181(2).
Since limb (b) is silent on Articles 181(1), 182 and 183 she says that the wider definition applies to them. So applied she contends that the plaintiff a Regent exercising the functions as Sultan is a "Ruler" for the purposes of Articles 181(1), 182 and 183 but not a "Ruler" for the purpose of Article 181(2) of the Federal Constitution.
In the premises she submits that the answer to question (1) should be in the affirmative.
Mr. Vendargon observes that -
The definition of "Ruler" in Article 160(2) is retained without amendment introduced by Act A848;
Article 181(2) has been amended by Act A848 to include the words "except in the Special Court established under Part XV"; and
Article 182(2) has been included by Act A848 and provides for "Any proceedings by or against ...."
He says that ambiguities arise from a reading of these provisions:
first, a Regent exercising the functions of a Sultan is not a "Ruler" for the purposes of Article 181(2) and thus can be sued in the ordinary courts, however, for purposes of Article 182(2) he is a "Ruler" and shall sue or be sued in the Special Court;
secondly, if one wishes to sue the Regent, which provision will prevail - Article 181(2) read with the definition of "Ruler" in Article 160(2), or Article 182(2) and Article 183?
He submits that the literal interpretation ought not to be used as it would lead to undesirable conclusions or absurdities in that:-
Proceedings by the Regent shall be instituted in the Special Court under Article 182(2) whilst proceedings against the Regent may be instituted in the ordinary courts as the Regent is not a "Ruler" for the purposes of Article 181(2). Accordingly, the determination of the claim in the present case would fall within the jurisdiction of the Special Court whilst the determination of the counterclaim which is founded on the same facts as the claim would fall within the jurisdiction of the High Court. He queries what if two different decisions are reached on the same facts that arise from the same transaction.
The Regent does not require the consent of the AG to institute an action but the defendants may require such consent. On this point he drew attention to Article 183 compared with Article 181(2).
The Regent may cease to exercise the function of the Ruler when his father resumes the role. In that event he queries whether his claim should then be transferred from the Special Court to the ordinary courts.
Instead he submits that the mischief rule/purposive interpretation ought to be used to interpret the relevant provisions of the Federal Constitution in answering question (1) of the reference for the following reasons:-
That the mischief that Parliament sought to rectify by Act A848 was to take away the immunity of the Rulers from legal proceedings and to establish the Special Court to deal with all matters by and against the Rulers.
That it was never the intention of Parliament to extend the immunity of the Regents or persons exercising the functions of the Ruler who never enjoyed immunity from legal proceedings under the original provisions of the Federal Constitution in the first place.
That the purpose of Parliament was never to grant the privileges of the Special Court procedure to the Regent or persons exercising the functions of the Ruler who never enjoyed the immunity under the original provisions of the Federal Constitution.
That the purpose of the qualification in the definition of "Ruler" in Article 160 was to ensure that immunity from legal proceedings was never to be extended to Regents exercising the functions of the Rulers.
In the premises he submits that the answer to question (1) ought to be in the negative.
Learned Senior Federal Counsel draws attention to Article 3 and Article 34 of the Federal Constitution and expresses the view that question (1) should be answered in the negative.
There is common ground between the parties on a point of law namely, that the definition of "Ruler" in Article 160(2) does not apply to Article 181(2). The query raised by point (c) of Miss Low's submission is, does that definition apply to Article 181(1). She says it does. Mr. Vendargon however, is silent on this point.
Whether that definition applies to Article 181(1) or (2) is a point of construction which has been canvassed by the Federal Court in Othman in the judgment of Salleh Abas FJ. He construes that the definition of "Ruler" in Article 160(2) is inapplicable for the purpose of interpreting "Ruler" in Article 181 be it Clause (1) or (2) because the context of Article 181 requires otherwise and that definition is a functional one which has no bearing on the personal status of the Ruler at all. That construction is shared by Suffian LP (as he then was) and Hashim Yeop Sani J (as he then was) in separate judgments delivered in the same case. Consequently, in Othman, on the issue of law i.e. whether a Ruling Chief, an Undang, is a Ruler, Salleh Abas FJ decided that a Ruling Chief is a Ruler as regards performance of functions and power but not a Ruler for the purpose of judicial immunity under Article 181(2). Hashim Yeop A Sani J supports that decision. There seems to be implicit approval by Suffian LP when he expresses the view that he is doubtful that Article 181 gives the Ruling Chief legal immunity at all although he makes it clear that he is undecided on that point but is prepared to assume for the purpose of that appeal that the Ruling Chief enjoys legal immunity in his personal capacity to the extent that he is sovereign.
The question then is who is "Ruler" in the context of Article 181(2). According to Salleh Abas FJ in Othman at p 35 left column B, and right column F, Article 181(1) provides the answer to Article 181(2) that is to say, he belongs to a royal ancestry and possesses the four attributes namely, sovereignty, prerogatives, powers and jurisdiction. In short, "Ruler" in Article 181(2) means Ruler in the full sense of that word, both functionally and status wise. The attribute which differentiates a Ruler from the Ruling Chief status wise is the attribute of sovereignty which a Ruling Chief lacks. That attribute which a Ruler possesses is the basis of immunity from proceedings in his personal capacity.
The query here is whether the construction of law by Salleh Abbas FJ still stands in the light of the amendments to the Federal Constitution effected by Act A848. Act A848 makes no amendment to the definition of "Ruler" in Article 160(2) or Article 181(1). They remain intact. Thus there is no reason to depart from his construction and in my view his construction still holds good. Act A848 amends Article 181(2) by inserting the words "except in the Special Court established under Part XV" after "capacity". Article 181(2) in its unamended form does not define a Ruler but deals rather with the consequence of one being a Ruler namely, immunity from proceedings in any court in his personal capacity: (see Othman at p 34). As I see it, the amendment to Article 181 (2) and for that matter the introduction of Articles 182 and 183 into the Federal Constitution by Act A848 in no way alters the construction or meaning of "Ruler" determined by the Federal Court in Othman which should apply to them uniformly as well. The amendment to Article 181(2) alters the consequence by taking away the immunity of the Ruler from being sued or charged and stipulates that such proceedings shall only be brought in the Special Court established under Part XV: see Faridah Begum Abdullah v Sultan Haji Ahmad Shah Al Mustain Billah [1996] 2 AMR 1498 (Special Court) at p 1498 per Eusoff Chin CJ.
The question in our present case is whether the plaintiff, a Regent, appointed to exercise the functions as Sultan, is a "Ruler" for the purpose of Article 181(2). Bearing in mind that "Ruler" in Article 181 (2) means Ruler in the full sense of that word that question entails a consideration of the Regent in his official and personal capacities.
His appointment as is clear from the operative part of Sel PLJ 19/99 is for the Sultan and as the representative of the Sultan "and in accordance with the Laws of the Constitution to do, exercise and perform all acts, rights and duties falling to be done, exercised and performed by the Ruler of the State". Further, such appointment takes effect from April 24, 1999 and for the duration that the Sultan is holding the office of Yang Di-Pertuan Agong. In such representative capacity the Regent, like the Sultan exercises the functions of the Sultan under the State Constitution or any State Law in accordance with and on the advice of the State Executive Council (the Majlis Mesyuarat Kerajaan Negeri [MMKN]) or a member thereof, which advice the Regent is bound to accept and act in accordance therewith: See Article 55(1) and (1A) of the Constitution of State of Selangor. In his official capacity the Regent like the Sultan can be sued in name only, not in the Special Court, but in the courts established under Article 121 of the Federal Constitution as the act of the Regent like that of the Sultan is deemed to be the act of the State Government. More appropriately, the State Government is the party to any such proceeding in those courts and not the Sultan or Regent: see Othman per Salleh Abas FJ at p 35 left column D. See also Stephen Kalung Ningkan v Tun Abung Hj Openg [1967] 1 MLJ 46 (HC) and Teh Cheng Poh v PP [1979] 1 MLJ 50 (PC) at p 52 left column C-F. It will thus be seen that "Ruler" in the sense defined in limb (b) of Article 160(2) really means the Ruler (and likewise the Regent) acting nut personally but on the advice of the MMKN that is the State Government.
It is a fact agreed between the parties that the SPA and the SA were entered into and the said suit commenced well before the appointment of the plaintiff as Regent, a reason expressly stated by the solicitors for the defendants for disagreeing with the views of the AG. It follows from this that they were entered into or commenced in his personal and not in his official capacity acting in accordance with or on the advice of the MMKN of Selangor or a member thereof. Thus. there is no question of the application of Article 160(2) to the facts of this case. Otherwise, the SPA or the SA and the said suit would all have been in the name of the State Government of Selangor in accordance with the Government Contracts Act 1949 (Act 120) and the institution of civil proceedings could only have been in the High Court, taking into account the value of the subject matter, and governed by the Government Proceedings Act 1956 (Act 359).
Applying the construction of Salleh Abas FJ in Othman's case, the Regent is my view a "Ruler" of Selangor in the functional sense as regards performance of functions and power with effect from April 24, 1999 but not one before that date. Before April 24, 1999 the Sultan of Selangor w as such a Ruler.
It is a fact that the plaintiff belongs to a royal ancestry. He is a Tengku and Raja Muda of Selangor and that status remains with him during his regency.
Status wise, he is not on an equal footing with his father who is both the Sultan of Selangor and the 11th Yang Di-Pertuan Agong.
As the reigning Sultan of Selangor he possesses the attribute of sovereignty and not the Regent.
Thus applying the construction and meaning of "Ruler" by Salleh Abas FJ in Othman the Regent is not a Ruler for the purposes of Article 182 and Article 183. "Ruler" in the context of those Articles would properly have meant the Sultan of Selangor.
For all these reasons stated, I answered question (1) of this reference in the negative.
Cases
United Hokkien Cemetries, Penang v Majlis Bandaran, Pulau Pinang [1979] 2 MLJ 121; Lam Kong Co Ltd v Thong Gum Co Ptd Ltd [2000] 3 AMR 3304; Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 AMR 2103; Pepper v Hart [1993] 1 All ER 42; Faridah Begum Abdullah v Sultan Haji Ahmad Shah Al Mustain Billah [1996] 2 AMR 1498; Othman Baginda v Syed Alwi Syed Idrus [1981] 1 MLJ 29; Stephen Kalung Ningkan v Tun Abang Hj Openg [1967] 1 MLJ 46; Teh Cheng Poh v PP [1979] 1 MLJ 50
Legislations
Courts of Judicature Act 1964: s.84
Constitution of State of Selangor: Art.55
Federal Constitution: Art.3, Art.34, Art.121, Art.160, Art.181, Art.182, Art.183, Parts IX, XV, Third Schedule, Fifth Schedule
Government Contracts Act 1949
Government Proceedings Act 1956
Representations
C.C. Low and Y.P. Wong (Lim Kian Leong & Co) for Appellant
Bastion Vendargon, Philip Chai & Dhayana Shila (Soo Thien Ming & Nashrah) for Defendants
Abdul Aziz Abdul Rahim & Syed Marzidy Syed Marzuki, Senior Federal Counsels as observers for Attorney-General
Notes:-
This decision is also reported at [2002] 2 AMR 1503
|
|
all rights reserved taiking.thing pte ltd |
|
|
