Indigenous Elements of Malaysian Constitution PDF

INDIGENOUS ELEMENTS OF MALAYSIAN CONSTITUTION Noor Shuhadawati Mohamad Amin Indigenous Elements Sultanate/Rulership Islam Bumiputra Malay language Indigenous Elements of the Malaysian Constitution Sultanate/Rulership 👑 The Malaysian monarchy institution comprises the Yang...

INDIGENOUS ELEMENTS OF MALAYSIAN CONSTITUTION Noor Shuhadawati Mohamad Amin Indigenous Elements Sultanate/Rulership Islam Bumiputra Malay language Indigenous Elements of the Malaysian Constitution Sultanate/Rulership 👑 The Malaysian monarchy institution comprises the Yang di-Pertuan Agong (YDPA), Malay Rulers/Sultans, and the Conference of Rulers. Malaysia has nine royal houses/sultanates. Each Sultan takes turns being the YDPA (Supreme Head of the Federation). The monarch is not elected and their powers are limited; they are subject to a parliamentary democracy. The YDPA and rulers hold symbolic roles in the legislature and executive acts. However, the YDPA's role is significant in appointing the government and dissolving the elected house to facilitate elections. The Conference of Rulers plays a role in certain constitutional amendments, particularly those concerning Islam, the Malay language, and Bumiputera. Position of Islam 🕌 Historical Background of Islam in Malaya 🌏 ​ Islam arrived in Malacca during the 14th century, originating from various regions in Arabia, Asia, and China. It gained legal standing in Malaya only in the 15th century ​ The Malay legal system reflects an interplay between Hindu law, Muslim law, and Malay indigenous customs. ​ Some Malay states (Melaka, Pahang, Johore, Terengganu) actively attempted to align Malay customs with Islamic law (refer to Malacca Digest, Johore, and Terengganu Constitutions) ​ British influence marginalized Islamic law, restricting it mainly to personal matters. Relevant cases demonstrating this include: Fatimah v. Logan, Ainan v. Abu Bakar, In the Goods of Abdullah, In Re Maria Heogh ​ R.J. Wilkinson noted that without British intervention, Muslim law would likely have become the law of Malaya. Further supporting cases are Ramah v Lotan and Shaikh Abdul Latif v Shaikh Elias Buxe Article 3, Federal Constitution 📜 ​ Before independence, Malay States' constitutions recognized Islam as the state religion. This was absent in the initial draft constitution prepared by the Constitutional Commission. ​ The Commission recommended leaving the matter to individual states because of the disagreements arose between the Rulers and the Alliance party regarding this issue Reid Commission Report (para 169): The report's stance on this matter. Dissenting note by Justice Abdul Hamid (paras 11 & 12): He argued the Alliance's recommendation for Islam as the federal religion was unanimous and should be accepted. He considered it innocuous, citing similar provisions in at least 15 other countries. He asserted it wouldn't restrict non-Muslims' religious freedom or prevent the state from being secular White Paper Report (para 57): Recommended declaring Islam the federal religion but emphasized that this shouldn't affect the state's secular nature or infringe on religious freedom. Article 3(1): Islam is the religion of the Federation, but other religions may be practiced in peace and harmony ​ This provision is considered a traditional element, basic feature, and unique characteristic of the constitution. ​ Justice Abdul Hamid's dissenting note suggested "shall be" instead of "is," implying a stronger mandate. However, the White Paper's wording suggests recognition of Islam's existing status in states ​ Some interpretations consider this as giving Islam the status of state ideology or social religion (though "social" doesn't explicitly appear in the Reid Commission Report) Different Interpretations of Article 3 🤔 Scholar Interpretation Shad Faruqi: Article 3(1) dismantles the church-state separation. Aziz Bari : Article 3(1) secularized the state, but it's not a fully-fledged Islamic state Mohamad Imam : Article 3(1) obligates the country to uphold and promote Islam Salleh Abas: Article 3(1) grants the federal and state governments the authority to establish and support Islamic institutions Implications of Article 3(1) ⚖️ 1.​ Recognition of Islam's superior status. ​ The Federation, as an entity, professes Islam and has corresponding religious obligations. Some argue a federation can't fulfill all such obligations ​ The Federation's proclamation of its religion in its supreme law is sufficient 2.​ Article 3(4): Derogative Effect 🚫  ​ While seemingly limiting Article 3's scope, it's interpreted as preserving the constitution's secular nature alongside Article 4(1) ​ Despite Article 3(1), Islam remains a state matter, not a federal one. Other Relevant Articles 📚 ​ Refer to Articles 11(1), (4), 11(5), 12(2), List II, 9th Schedule of the FC, 4th Schedule, and Articles 11(4), 12(2), 150(6A)(5) for further information. Article 150(6A)(5) protects Islam during emergencies. The Yang di-Pertuan Agong (YDPA), as Supreme Head, plays a role in protecting Islam ​ Articles 11(4) and 12(2) appear to elevate Islam above other religions without infringing on religious freedom. Sections 36 & 37 of the Education Act 1961 (repealed) stipulated that schools with over 15 Muslim pupils receiving government grants or aids would provide religious instruction to Muslim pupils. Analysis of Cases 👨🏽‍⚖️ Che Omar v. Che Soh (1988) ​ Issue: Whether drug penalties under certain Acts conflicted with Islamic injunctions. ​ Arguments: The death penalty was argued as unconstitutional, and laws should be imbued with Islamic principles, given Syariah law's pre-Merdeka status. ​ Salleh Abas LP's view: Islam is a complete way of life, but he questioned if the Constitution intended this broad interpretation. He stated that Islamic law was confined to marriage, divorce, and inheritance, and that Article 3(1) only referred to rituals and ceremonies. Meor Atiqurrahman ​ Issue: Whether expulsion from school was justified for refusing to remove headgear. ​ The judge (Mohd Noor Abdullah J.) asserted Islam's superior status compared to other religions in the country. Lina Joy v. MAIWP & Anor ​ The case affirmed Islam's special status as the dominant religion of the Federation. Faizaambv Chik J. highlighted the constitution's granting of special status to Islam Kamariah Ali ​ Abdul Hamid Mohammad discussed the different standing of Islam compared to other religions in the Federal Constitution. Sulaiman Takrib v Government of Terengganu ​ The Terengganu State Legislative Assembly (TSLA) unconstitutionally delegated legislative power to the Fatwa Committee by allowing them to issue binding fatwas. ​ Even if delegation were permissible, the TSLA's delegation to the Fatwa Committee was excessive. ​ The TSLA lacked the power to create offenses against precepts of Islam ​ Holding: The court dismissed all three petitions. Gov of Negeri Sembilan & Ors v Muhammad Juzaili b Mohd Khamis & Ors Three Muslim bridal makeup artists with Gender Dysphoria Identity (GID) challenged the constitutionality of Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992. ​ Court of Appeal: Ruled Section 66 unconstitutional, inconsistent with Articles 5(1), 9(2), and 10(1)(a) of the Federal Constitution (FC). ​ Federal Court: Reversed the Court of Appeal's decision, stating the respondents failed to follow the procedures outlined in Article 4(3) and (4) of the FC. The Federal Court deemed the lower courts' proceedings null and void due to lack of jurisdiction. Malay Language 🇲🇾 Article 152 designates Malay as the national language, aiming to unify communities through a common tongue. While Malay is the lingua franca, exceptions exist when dealing with international communities. This doesn't restrict the use of other languages for non-official purposes. The government hasn't always adhered to Article 152; for example, English was used as the medium of instruction in science and mathematics in schools. In Merdeka University Berhad v Government of Malaysia 2 MLJ 243, the government rejected an application to establish a private university using Chinese as the medium of instruction. The court dismissed the plaintiff's claim, citing that the monarch's decision (as a constitutional monarch) was ultimately a government decision under Article 40(1) of the constitution. Bumiputera 🧑‍🌾 Article 153 mandates the YDPA's role in safeguarding the special position of Malays, natives of Sabah & Sarawak, and the legitimate interests of other communities. Articles 89 & 90 discuss Malay reservation land and customary land. Article 8(5)(c) protects indigenous people regarding land or suitable public service positions. Article 8(5)(f) restricts Malay regiments' enlistment to Malays only. Affirmative Action Policies and the Constitution: These policies aim to increase participation of economically disadvantaged groups in education, employment, and business where historical exclusion or underrepresentation exists. Measures often involve preferential policies based on ethnicity, gender, or religion. The special position for the politically dominant but economically depressed Malay majority is balanced with the protection of minorities like the Orang Asli and natives of Sabah & Sarawak. Sabah & Sarawak have special privileges compared to other Malaysian states. Section 2(c) of the 13th Schedule allows for more rural than urban constituencies, giving political weight to rural Malay voters. Article 153, addressing the Bumiputera community's special position, must be balanced with Article 136, which emphasizes efficient and impartial public administration. The government must balance promoting Bumiputera interests with maintaining effective public service functioning. Extent of Protection (Article 10(4)): Parliament can prohibit questioning matters, rights, status, position, privilege, sovereignty, or prerogative established or protected by Part III, Articles 152, 153, or 181, except regarding implementation as specified by law. The provisions concerning Bumiputera are not absolute and must be balanced with the legitimate interests of other communities, including citizenship rights, religious freedom, and the right to use their ethnicity, practices, and language.  The Federal Constitution provides for separation of powers consisting of the executive (Art39), the legislature (Art44) and judiciary (Art121) Executive YDPA Who is YDPA The Reid Commission stated that YDPA shall be the symbol of the unity of the country which are the head of the federation that unites the different races and above political partisan Article 32 : the office of YDPA was created in the constitution of the Federation of Malaya on 31th August 1957 Functions of YDPA Functions Description Executive A.32 (1) Supreme Head of Federation Functions ​ The YDPA is the Supreme Head of the Federation and takes precedence over all persons in the Federation hence not liable to any proceedings in any court except in the Special Court established under Part XV of the Constitution ​ The Raja Permaisuri Agong (the Consort of the YDPA) takes precedence next after the YDPA over all other persons in the Federation A.39 Executive Authority of Federation ​ The YDPA is the head of state but not the head of government. The executive authority of the Federation is vested in the YDPA and is exercised by him or by the Cabinet or any Minister authorized by the Cabinet A.40 (1)(1A) Acting on Advice ​ The YDPA shall act in accordance with the advice of the Prime Minister (PM) and the Cabinet in all executive matters except for matters specified in Article 40(2) ​ The YDPA must act upon the advice of the PM, and this advice is direct and not obtained after consultation Madhavan Nair’s Case Dealt with the promulgation of an ordinance during an emergency. The applicant asked the court to determine whether the Emergency Ordinance of 1969 and the Essential Regulations of 1975 were valid. The applicant argued that the ordinance was not properly promulgated because it did not have the Yang di-Pertuan Agong's (YDPA) public seal and formula, suggesting that the YDPA had not assented to it, and therefore, it was not enforceable Held The ordinance had been properly promulgated and had the force of law and the Essential Regulations were made valid by the YDPA Principle ​ Although the executive power is in the hands of the YDPA and his Cabinet, the emergency rule which temporarily transfers legislative power from Parliament to the YDPA, did not change the YDPA role as a constitutional monarch  ​ The YDPA is still bound by the Constitution to act on the advice of the Cabinet as even though the YDPA can act on his own discretion in certain matters as provided in Article 40(2) he must still act in accordance with what is prescribed by the Constitution Abdul Ghani B Ali Ahmad & Ors v PP The Federal Court decided that the Yang Di-Pertuan Agong (YDPA) must act on the advice of the Cabinet when proclaiming an emergency meaning that the YDPA, in his role as a constitutional monarch, is required to follow the advice of the Cabinet as specified in Article 40 of the Constitution A.43(1)(2) Appointment of PM, Cabinet Ministers, and Deputy Ministers ​ The YDPA appoints the PM, who is a member of the House of Representatives who, in his judgment, is likely to command the confidence of the majority of the members of that House ​ The YDPA appoints other Ministers on the advice of the PM Power to appoint a PM is prescribed under Art40(2)(a) where this provision shall be read together with Art43(2)(a) -​ However this power is not absolute as if a party has an absolute majority, its leader has the right to be the Prime Minister -​ But in some cases of death, resignation or disqualification of MPs, only then YDPA’s discretion came into action A.40(2)(a)(b)(c) : Discretionary Functions of YDPA The YDPA can exercise his discretion in the following matters: (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, and in any other case mentioned in the Constitution Non-Discretionary Functions of YDPA Functions exercisable on the advice of the PM 43(5) Dismissal of Ministers other than the PM 41 The YDPA is the Supreme Commander of the Armed Forces 132(2A)/ 135 Appointment and removal of persons in the federal public services 139/ 141A Appointment and removal of Commissions and Councils established by the Constitution such as the Public Service Commission & Education Service Commission Legislative YDPA as a Component of Parliament Functions The YDPA is one of the components of Parliament, which also includes the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives)  A.45(1) Appointment of Senators The YDPA appoints 40 Senators A.55(1) & A.55(2) Summon, Prorogue, and Dissolve Parliament The YDPA has the power to summon, prorogue (discontinue without dissolving), and dissolve Parliament A.48(3) Removal of Disqualification of Membership The YDPA can remove the disqualification of membership of either House A.60 Addressing the House The YDPA can address either House of Parliament A.66 Giving Royal Assent The YDPA gives Royal Assent to bills passed by both Houses of Parliament. If the YDPA fails to give his assent within a specified period, the bill automatically becomes law Judicial A.122B Appointment of Superior Court Judges Functions The YDPA appoints superior court judges based on the advice of the PM after consulting the Conference of Rulers Removal of Judges The YDPA can remove judges upon the recommendation of a tribunal Dato Seri Anwar Ibrahim V PP The court addressed the issue of the (YDPA) authority in appointing judges by clarifying that the YDPA must act upon the advice of the Prime Minister (PM) as stipulated in Article 40(1A) of the Constitution which means that the YDPA has no option but to accept the advice given by the PM Principle YDPAis bound to follow the direct advice of the PM without needing further consultation, and while the appointment of superior court judges is made by the YDPA upon the advice of the PM after consulting the Conference of Rulers, the PM can legally insist on the appointment proceeding even if the Conference of Rulers does not agree or delays its advice, as the actual appointing authority is the PM Other Article 3 : Religion of the Federation Constitutional (2) Head of the religion of Islam in states without Rulers Role (3) In Malacca, Penang, Sabah and Sarawak (5) In the federal territories of Kuala Lumpur Putrajaya and Labuan A.42 Power to Grant pardon ​ The YDPA has the authority to grant pardons, reprieves, and respites for all offences that have been tried by court-martial and for all offences committed in the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya ​ The decision to grant pardon is at his discretion and is not subjected to the judicial review Juraimi b. Husin Case Issue: Whether the court has the power to interfere with the royal prerogative of mercy exercised by the Sultan of Pahang Held  ​ The death sentence imposed on the plaintiff was constitutionally valid and permissible by law. The court held that the legality of a delayed execution cannot be questioned, as the prerogative of mercy is not susceptible to judicial review ​ The court concluded that the royal prerogative of mercy is not amenable to judicial review. This means that the court does not have the authority to interfere with or question the Sultan's decision to grant or withhold a pardon Article 150 : Proclamation of Emergency Withhold Consent to a dissolution of Parliament ​ In cases where PM ceases to command confidence of Dewan Rakyat he may he request from the YDPA to dissolve parliament OR he resign ​ If YDPA thinks that the government is still able to function well, he may refuse to dissolve parliament Requisition of COR ​ YDPA may in his discretion call for Conference of Rulers ​ In matters concerning privileges, positions, honours and dignities of their highness Election & Article 32(3) : Supreme Head of the Federation Qualifications The Yang di-Pertuan Agong shall be elected by the Conference of Rulers for a term of five years, but may at any time resign his office by writing under his hand addressed to the Conference of Rulers or be removed from office by the Conference of Rulers, and shall cease to hold office on ceasing to be a Ruler ​ The post of YDPA can only be hold by muslim ​ YDPN cannot be YDPA 3rd Schedule of FC : Election of YDPA A Ruler is qualified to be elected Yang di-Pertuan Agong unless— (a)​he is a minor (b)​he has notified the Keeper of the Rulers’ Seal that he does not desire to be elected (c)​ the Conference of Rulers by secret ballot resolves that he is unsuitable by reason of infirmity of mind or body or for any other cause to exercise the functions of Yang di-Pertuan Agong ➔​ How does it Works? ​ The Conference of Rulers shall offer the office of Yang di-Pertuan Agong to the Ruler qualified for election whose State is first on the election list described in section 4 and, if he does not accept the office, to the Ruler whose State is next on the list, and so on until a Ruler accepts the office ​ When a Ruler to whom the office of Yang di-Pertuan Agong has been offered in accordance with section 2 has accepted the office, the Conference of Rulers shall declare him elected Fourth Schedule : Oath in the Name of Allah Dictate that YDPA must be a Muslim Disabilities of Article 34 YDPA Once a Sultan becomes the Yang di-Pertuan Agong (YDPA), he cannot exercise his functions as the ruler of his state except in his role as the Head of Religion for Islam in his state 1.​ The YDPA can still act as the Head of Religion for Islam in his state 2.​ The YDPA must appoint a regent to govern his state in his absence Prohibitions ​ The YDPA cannot hold any appointment that comes with remuneration ​ He cannot engage in any commercial enterprise ​ He cannot be absent from the Federation for more than 15 days without the consent of the Conference of Rulers (COR), except for state visits to another country ​ If the YDPA is on a state visit for more than 15 days, the Deputy YDPA or another person authorized by law will exercise the functions of the YDPA. During this period, the same rules that apply to the YDPA will apply to the person acting in his place  Conference of Rulers Intro COR Refer to Article 38 & 5th Schedule of FC General Functions of COR I.​ Function of Policy Nature where COR is expected to act on the advice of the PM and Chief Minister who would be present during the meeting of COR II.​ Function relating to the religion, ceremonies and those relating to their privileges and their position as Rulers ​ COR may act on their discretion in certain matters on Article 38(6) and Section 7 of the 5th Schedule ​ The COR has 3-4 meetings a year where he YDPA or any 3 members can call for the meeting Article 38(2) of FC Main Function The Conference of Rulers shall exercise its functions of Election of YDPA and The Conference of Rulers elects the Yang di-Pertuan Agong (YDPA) and Deputy YDPA the Timbalan Yang di-Pertuan Agong (Deputy YDPA) according to the rules set out in the Third Schedule of the Constitution Extension of Religious The Conference of Rulers can agree or disagree to extend any religious Acts acts, observances, or ceremonies to the whole Federation Consent and Advice on The Conference of Rulers must give its consent or withhold consent to any Laws and Appointments law that requires its approval and also provides advice on appointments that need its consultation or consent as per the Constitution Appointment of Special The Conference of Rulers appoints members of the Special Court under Court Members Clause (1) of Article 182 Pardons and Sentences The Conference of Rulers has the power to grant pardons, reprieves, respites, or to remit, suspend, or commute sentences under Clause (12) of Article 42. Deliberation on The Conference of Rulers can discuss and deliberate on questions of National Policy national policy, such as changes in immigration policy, and any other matters it deems fit Protection of Rulers' No law that directly affects the privileges, position, honours, or dignities Privileges of the Rulers can be passed without the consent of the Conference of Rulers Consultation on Policy The Conference of Rulers must be consulted before any changes in policy Changes that affect administrative actions under Article 153 are made Constitutional Article 38(2) : Election of the King Function The Majlis Raja-Raja has the constitutional function of electing the YDPA and the Timbalan YDPA. This power is significant because the YDPA can be seen as a delegate of the Majlis Raja-Raja at the federal level and is accountable to the Majlis. Article 38(6) : Dismissal of the King The Majlis Raja-Raja has the power to dismiss the YDPA. Although this power has never been exercised, it serves as a significant check on the YDPA's behavior, encouraging him to respect the wishes of his fellow Rulers Veto Power on Federal Legislation The Majlis Raja-Raja has the power to veto federal legislation on several critical and sensitive issues I.​ Article 38(1) and 159(5) : Any law affecting the privileges, position, honours, or dignities of the Rulers II.​ Article 2(b) : Any law altering the boundaries of a state Phang Chin Hok Case Observation The Federal Court mention that the COR is a constitutional body under Article 38 of the Federal Constitution where it exercised ​ Executive functions such as electing and removing the Yang di-Pertuan Agong (YDPA) and his Deputy, deciding on the extension of religious acts to the entire Federation, and consenting to laws affecting the privileges of Rulers or altering state boundaries, as well as advising on key appointments ​ Consultative functions related to administrative actions under Article 153 concerning the special position of Malays in West Malaysia, and the YDPA is accountable to the Conference, which has the power to dismiss the YDPA serving as a significant check on his authority Consultative Article 38 (2)(c), (6)(b) Functions Consenting or withholding consent to any law and making or giving advice on any appointment which under this Constitution requires the consent of the Conference or is to be made by or after consultation with the Conference Article 38(5) Conference of Rulers shall be consulted before any change in policy affecting administrative action under Article 153 (special position of Malays, Sabah & Sarawak) is made Deliberative Article 38(2) Functions Conference of Rulers may deliberate on questions of national policy (for example changes in immigration policy) and any other matter that it thinks fit. Article 38(3) Conference of Rulers shall be accompanied by the Prime Minister, and the other Rulers and the Yang di-Pertua- Yang di-Pertua Negeri by their Menteri-Menteri Besar or Chief Ministers; and the deliberations shall be among the functions exercised, by the Yang di-Pertuan Agong in accordance with the advice of the Cabinet, and by the other Rulers and the Yang di-Pertua-Yang di-Pertua Negeri in accordance with the advice of their Executive Councils Other Art 38 (2)(b) : Religion of Islam Discretionary The agreeing or disagreeing to the extension of any religious acts, observances or Power ceremonies to the Federation as a whole Art 38 (2)(e) : Pardon The granting of pardons, reprieves and respites, or of remitting, suspending or commuting sentences, under Article 42(12)(b) ​ YDPA shall not be accompanied by the prime minister and the other rulers shall not be accompanied by the chief ministers ​ The decision shall be made with the consideration of the opinion made by the Attorney General Proceeding Article 182 against YDPA The establishment and functions of the Special Court, which handles legal and the Rulers proceedings involving the Yang di-Pertuan Agong (YDPA) and the Rulers of states Jurisdiction of the Special Court ​ Any legal proceedings by or against the YDPA or a state Ruler in their personal capacity must be brought in the Special Court ​ The Special Court has exclusive jurisdiction to try all offences committed in the Federation by the YDPA or a state Ruler, as well as all civil cases involving them, regardless of where the cause of action arose ​ The Special Court has the same jurisdiction and powers as those vested in inferior courts, the High Court, and the Federal Court by the Constitution or any federal law ​ The registry of the Special Court is located in Kuala Lumpur. Procedure and Practice Until Parliament makes special provisions regarding procedure (including the option to hold proceedings in camera), evidence and proof in civil and criminal proceedings, the practice and procedure applicable in inferior courts, High Courts, and the Federal Court will apply in the Special Court Decision-Making ​ Decisions in the Special Court are made by the majority opinion of its members ​ The decisions of the Special Court are final and conclusive and cannot be challenged or questioned in any other court on any grounds Article 183 No action to be instituted against the YDPA or a Ruler except with the consent of the Attorney General personally DYMM Tengku Idris Shah Sultan Salahuddin Abdul Aziz v DIKIM Holdings Sdn Bhd The plaintiff filed a claim in the High Court in Kuala Lumpur in May 1998 against the defendant. In April 1999, the plaintiff was appointed as the Regent of Selangor when his father became the Yang di-Pertuan Agong (YDPA). In July 2002, the High Court referred a question to the Federal Court: whether the plaintiff, while acting as the Regent of Selangor, should be considered a Ruler for the purposes of Articles 181, 182, and 183 of the Federal Constitution. The Federal Court ruled that the plaintiff was not considered a Ruler at that time, and the case should be heard in an ordinary civil court. Later, the plaintiff's father passed away, and the plaintiff was proclaimed the Sultan of Selangor. The High Court again referred several questions to the Federal Court for a decision  Federal Court's Decision The Federal Court has the jurisdiction to decide constitutional issues where upon his accession as the Sultan of Selangor, the plaintiff became a Ruler for all time, including his successor in office which means according to Article 181(2), the High Court ceased to have jurisdiction over the plaintiff, and the case should be transferred to the Special Court as the plaintiff, now a Ruler, falls within the exclusive jurisdiction of the Special Court for any legal actions Faridah Begum Abdullah v Sultan Hj. Ahmad Shah The plaintiff, Faridah Begum Abdullah, was a Singaporean citizen who sued the Sultan of Pahang in his personal capacity for alleged libel and sought damages Issue : Whether a non-Malaysian citizen has the right to sue a Ruler in his personal capacity in the Special Court Court's Decision The court noted that Article 182 does not clearly state whether actions can be brought by citizens or non-citizens and emphasized that the amendments to Article 181(2) and the introduction of Article 182 are special and exceptional measures where it was held that these provisions are not intended to give rights to a person who is not a citizen of Malaysia unless Article 182 expressly provides for such rights through clear and unambiguous language Must Be Read Harmoniously The Special Court's decision was based on the principle of reciprocity between Commonwealth nations, which ensures that the rights granted to citizens of one nation are also available to citizens of the other nation. Since Singapore does not allow non-citizens to sue their rulers, it would be inconsistent to allow a Singaporean citizen to sue a Malaysian Ruler #Interesting to note that in Faridah Begum the court seems to suggest that the consent in Art 183 need to be looked at from the consent of COR which led to the establishment of Special Court The i. The Constitutional Crisis of 1983. Constitutional ii. The Constitutional Crisis of 1993. Crisis Involving (For details see Andrew Harding Law, Government and the Constitution in Malaysia, Rulers  Prime Minister and the Cabinet Prime Minister Article 43(2): Appointment of PM Article 40 & 43 ​ The Yang di-Pertuan Agong (YDPA) appoints the PM from the House of Representatives, choosing someone who is likely to command the confidence of the majority of its members. ​ The PM then advises the YDPA on the appointment of other ministers, who can be from either House of Parliament ​ The PM has the authority to select and dismiss ministers as he sees fit. All ministerial appointments are made under the PM's advice. Dismissal of the Prime Minister Loss of Confidence ​ If the PM ceases to command the confidence of the majority in the House of Representatives, Article 43(4) allows the PM to either advise the YDPA to dissolve Parliament or to tender his resignation. However, the YDPA has the discretion to refuse the dissolution of Parliament ​ The Reid Commission suggested that if the PM no longer holds the majority's confidence and the YDPA does not grant a dissolution of Parliament, the PM must resign to make way for a successor. State vs. Federal Level Articles 40 and 43 pertain to the federal level and the powers of the YDPA, not the Rulers of states. Therefore, these articles cannot be applied at the state level The PM in Malaysia is appointed by the YDPA based on likely majority support in the House of Representatives. If the PM loses this support, they are expected to resign or advise the YDPA to dissolve Parliament. The YDPA has the discretion to refuse dissolution, leading to the PM's resignation. There is no explicit provision for the automatic dismissal of the PM in the Federal Constitution Cases on Tun Datu Hj Mustapha v Tun H Robert & Datuk Pairin Kitingan Appointment After the general election in 1985, Tun Datu Hj Mustapha took an oath as Chief Minister and on the same day, the Yang di-Pertua Negeri (YDPN) revoked his appointment and appointed the second defendant as Chief Minister. Later, Tun Datu Hj Mustapha sought an injunction to restrain the second defendant from taking office Court's Decision ​ The Head of State must consider the number of elected seats secured by each political party and independent candidates in the election before making a judgment on the appointment of the Chief Minister thus ignoring this requirement would be unlawful and unconstitutional ​ The Head of State should make his judgment freely, independently, and impartially, without any influence, pressure, or threat as the constitution envisages that the Head of State should be allowed to make his decision quietly and without external pressures ​ The decision of the Head of State in appointing a Chief Minister must be signified in some way and according to constitutional convention, this should be in the form of a signed and sealed instrument of appointment, which aligns with established tradition and usage in Sabah and Malaysia Determining Loss Through formal voting of Confidence Stephen Kalong Ningkan v. Tun Abang Haji Openg & Tawi Sli Members of the Sarawak State Legislature sent a letter to the Head of State indicating they no longer had confidence in Chief Minister Stephen Kalong Ningkan. The Governor asked him to resign, but he refused. In accordance with Article 7(1) of the Sarawak constitution, the governor declared that the plaintiff and other members of supreme council had ceased to hold the office. The Governor then dismissed him and appointed Penghulu Tawi Sli as the new Chief Minister Decision The court held that the dismissal was null and void because the Sarawak Constitution required a vote in the Council Negeri to demonstrate a lack of confidence, not a letter. ​ The letter signed was not an acceptable method to demonstrate a lack of confidence even if the majority agreed a formal vote was still required ​ The governor is not correct to base his determination on a letter written by members of the state legislative assembly to him as according to Section 21 of the Interpretation Ordinance Governor power to dismiss Chief Minister could only be exercised if the Council Negari had shown a lack of confidence through formal vote Through surrounding circumstances Datuk Amir Kahar Tun Mustapha v Tun Mohd Said Keruak & Ors Datuk Pairin was appointed Chief Minister of Sabah after the 1994 state election. His government collapsed due to defections to the rival coalition. He requested the Yang di-Pertua Negeri (YDN) to dissolve the Assembly, but the request was denied. Datuk Pairin then resigned as Chief Minister but did not tender the resignations of his cabinet members. The YDN appointed Tan Sri Hj Sakaran Dandai as the new Chief Minister. It was held that the loss of confidence of the majority of the members of the Assembly can be proven by various circumstances, which either through the knowledge of the Chief Minister himself or formal voting in the Assembly. The court departed from Stephen Kalong Ningkan. Hence, in Sabah, it can be based on knowledge of the Chief Minister himself from the surrounding circumstances or it can be through formal voting in the Assembly by its members Dato’ Seri Ir Mohammad Nizar bin Jamaluddin v Dato Seri Dr Zambry bin Abdul Kadir Pakatan Rakyat won 31 out of 59 seats, and Dato Sri Nizar was appointed as Chief Minister. Later, three members left Pakatan and supported Barisan Nasional, giving Barisan the majority. Dato Sri Nizar requested the dissolution of the State Legislative Assembly but was denied Decision The court held that evidence of a Chief Minister ceasing to command the confidence of the majority can be found from various sources, not just formal votes. The Sultan used his discretionary power to refuse the dissolution and requested Nizar to resign. If he refused, his position and the other members would be deemed vacated Loss of Federal Level Confidence at Article 43(2)(a) Federal & State ​ The Yang di-Pertuan Agong (YDPA) appoints a Prime Minister (PM) who, in his Level judgment, is likely to command the confidence of the majority of the House of Representatives (HOR) ​ As long as the PM can secure the majority of the HOR, he can remain PM. However, since the majority of the HOR are usually members of the ruling party, there is a high probability that the PM could lose his position if he loses the confidence of the ruling party ​ A person who does not hold any office but is a member of the HOR can still be appointed as PM, as Article 43(2)(a) does not specify that the PM must hold an office or post within the ruling party ​ Gender, race, or religion factors do not play a part in the appointment of the PM. For example, citizenship through naturalization is sufficient to qualify someone as a member of the HOR and potentially as PM State Level ​ Similar principles apply at the state level, where the MB or CM and the State Executive Council are responsible to the State Legislative Assembly (SLA) ​ Cases like Tan Sri Khalid in Selangor, Datuk Seri Mukhriz Mahathir in Kedah, and Tan Sri Musa Aman v. Tan Sri Shafie Afdal illustrate that loss of confidence can lead to the appointment of a new MB or CM, following the principles established in cases like Zambry Kadir. Consequences Loss of Confidence in the Ruling Party If the PM loses the confidence of the delegates of the ruling party in the General Assembly, he could still remain PM as long as he commands the majority of the HOR. However, the likelihood of this is high if the majority of the HOR are members of the ruling party. Cabinet Unity The Cabinet should present a united front to ensure the efficient implementation of policies. This principle of "speaking in one voice" is crucial for the effectiveness of government policies. Consequences for Ministers Ministers who do not answer questions satisfactorily may be forced to resign There may be proposals to reduce the salaries of ministers to indicate disapproval during budget debates. However, enforcing such principles can be difficult, especially when there is a strong emphasis on party solidarity and discipline 8th Schedule of Powers and Functions of State Rulers the FC Section 2(a)(6)Appointment and Resignation of the Menteri Besar ​ The Ruler appoints the Menteri Besar, choosing someone who, in his judgment, is likely to command the confidence of the majority of the members of the State Legislative Assembly (SLA). ​ If the Menteri Besar ceases to command the confidence of the majority of the SLA members, he must tender the resignation of the Executive Council unless the Ruler dissolves the SLA at his request. Executive Council Section 2(2) : The Executive Council is appointed as follows ​ The Ruler first appoints the Menteri Besar from the SLA members who is likely to command the confidence of the majority ​ The Ruler then appoints not more than ten nor less than four other members from the SLA on the advice of the Menteri Besar. Discretionary Powers of the Ruler Section 1(2) The Ruler may act in his discretion in the following functions: ​ The appointment of a Menteri Besar ​ The withholding of consent to a request for the dissolution of the SLA Section 4 In appointing a Menteri Besar, the Ruler may, in his discretion, dispense with any provision in the State Constitution that restricts his choice if, in his opinion, it is necessary to comply with the provisions of this section Loss of Confidence Among Ruling Party Delegates If the Menteri Besar loses the confidence of the delegates of the ruling party in the General Assembly, the following steps are taken ​ Section 2(6) If the Menteri Besar ceases to command the confidence of the majority of the SLA members, he must tender the resignation of the Executive Council unless the Ruler dissolves the SLA at his request ​ Section 1(2)(a) The Ruler has the discretion to appoint a new Menteri Besar who is likely to command the confidence of the majority of the SLA members  lOMoARcPSD|50368711 a) the Ruler shall first appoint as Menteri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the Assembly; and b) he shall on the advice of the Menteri Besar appoint not more than ten nor less than four other members from among the members of the Legislative Assembly What if the MB lost confidence among the delegates of the ruling party in the General Assembly of the Ruling party? - 8th schedule section 1 ss 2 (a) (2) The Executive Council shall be appointed as follows, that is to say: (a) the Ruler shall first appoint as Menteri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the state legislative Assembly; and (4) In appointing a Menteri Besar the Ruler may, in his discretion, dispense with any provision in the Constitution of this State restricting his choice of a Menteri Besar, if in his opinion it is necessary to do so in order to comply with the provisions of this section. (6) If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request the Ruler dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council. Similar at federal level- state level refer 8th schedule CABINET MINISTERS Appointment of YDPA appoints on the advice of PM among the members of either House of Parliament ministers- (Refer to a. 43(2) (b). PM also has the power to dismiss a minister.- a43(5) o (5) Subject to Clause (4), Ministers other than the Prime Minister shall hold office during the pleasure of the Yang di- Pertuan Agong, unless the appointment of any Minister shall have been revoked by the Yang di-Pertuan Agong on the advice of the Prime Minister but any Minister may resign his office. o Resign/ dismissed Besides the PM also has the power to choose, switch, promote his colleague and place them according to seniority and dismiss the ministers. He may create a new ministerial office or wind up one. He may transfer functions from one minister to another and designate one of his minister to the extra constitutional post of Deputy PM. However the appointment of Parliamentary Secretaries are appointed by PM without prior reference to the YDPA (Refer to A.43B, 43C). Similar power to dismiss them (A. 43B (3) & 43C (2) (c ) ) YDPA may revoke a minister’s appointment on the advise of PM. - Anwar’s case Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 Dato Seri Anwar -The plaintiff who was the DPM and Minister of Finance was dismissed from office by the 1st Ibrahim defendant. Issue: who should make the decision to dismiss.- THE KING Ct: “Common practice dictates that as the King could only act on advice, the PM must first formulate a decision to dismiss the plaintiff. Next step is for the PM to inform the King about the decision. Thereafter the decision is to be conveyed to the plaintiff. The question is who is responsible to inform the plaintiff about the revocation. Normally the King would personally inform a minister about the revocation of a minister’s appointment but would instruct his servant or agent to do so. Such a person includes the King’s private secretary.” Who should signed In this case, it was the PM who signed. the letter od HC : it is immaterial that the PM signed himself the dismissal letter. dismissal? “Here the PM informed the plaintiff about the revocation. As there is no prescribed format for instance, requiring any particular person to sign the letter to convey the decision to the plaintiff.” - Not an issue PM who signed the dismissal letter- not mention in FC The PM is not bound by Cabinet advice. He may make his own decision alone or by consulting one or two of his Cabinet members. PM also seen as an international figure besides being a national leader. PM AND CABINET Create committee of the Cabinet. Choose their membership, prescribe their terms of COMMITTEE reference & give them decision making power. He may preside over some Commission He may also create an advisory body outsiders e.g. National Economic Action Council to counsel him on any particular matter. CARETAKER If the House of Representative is dissolved for an election, a convention has developed that GOVERNMENTS the PM and his Cabinet continue in office in a caretaker capacity for 120 days. The House may be in dissolution under A 55(4). - Within the dissolution of the parliament – the previous PM will be caretaker - Cannot introduce new policies APPOINTMENT OF Appointment of judges of superior courts – A 122A & 122B CERTAIN POSTS Appointment of AG – A 145, YDPA- ON the 44 Senators – A 45 advice of the PM Governor of Penang, Malacca, Sabah, Sarawak, KL, Labuan, Auditor General (A.105) PM & THE PARTY As a leader of his party or coalition, he has a powerful organisation behind him to protect his image in the most favourable light. - STRONG NUMBER OF SEAT – no problem to the PM and his collation Hence, due to so much power of the PM in the system of govt in parliamentary democracies today, the PM is described as ‘elective dictatorship, absolute premiership, imperial premiership and presidential premiership Though PM has power in advising the YDPA- take into account many criteria Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 Limits However, there are some unseen political & conventional correctives that limits the power of the PM. Appointment of minister Dismissal of minister Vastness of the govt Federal system Judicial review The ministerial responsibility Article 43(3) (3) The Cabinet shall be collectively responsible to Parliament. - clear – overlapping between executive and legislature Min. responsibility to Parliament is an important convention of parliamentary system of gvt. Aim: to maintain relationship of check & balance btw two bodies- executive & legislature. Exp- u.s- total separation – no interaction between executive & legislature- overlapping might be overuse of power but no interaction- 1 organ might frustrate the other organ 2 types Individual responsibility Collective responsibility Individual He is answerable for all Ministry’s acts or omission. responsibility He must bear the consequence of any defect of the Ministry’s admin or any aspects of its policy which may be criticised in Parliament. The minister also cannot blame the civil servant for any mismanagement or maladministration of his Ministry. Blame JKR for fall of bridge- must take the blame / responsibility Collective Cabinet act unanimously though not all power on the Cabinet. responsibility Such convention came to be accepted in UK in the middle of 19th century. In Malaysia, it has been accepted at least in form as part of parliamentary system of gvt which Malaysia adopted when it achieved its independence. This principle was introduce by the Reid Commission Report. - Individual minister cannot individually / publicly express their disagreement - They can disagree in certain procedure- outside the cabinet he can Each member in the Cabinet is responsible not only for decisions made in respect of his ministry but also collectively responsible for decisions involving other matters. Though he disagrees with the Cabinet’s decision, he is obliged to defend it in public; if not, just keep quite, his dissent opinion minted in Cabinet meeting or resign. - State level – 8th schedule Works more effectively in Malaysia rather than Individual responsibility Hardly find a proposal to cut minister salary/ to force to resign when with probs of maladministration or mismanagement of gov. funds Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 - Principle of Collective responsibility, If PM resign because of loss of confidence then it will dissolve the entire cabinet - The general principle is if the PM/CM resign the entire cabinet will be dissolved from case of Amir Kaha - EXCEPTION: But if the PM resign because of personal reason such as health issue, the existing cabinet can stay - At state level, refers to the case of Amir Kaha, the CM because of personal reason - But the court held that resignation of the CM means the dissolution of the entire cabinet, but in this case it was because of the vote of loss of confidence RATIONAL It underlines a very important aspect of Parliamentary Democracy. It means that min are responsible to Parliament for actions or inactions in relation to their ministries. Therefore, the Parliament has devised certain procedures to allow time for matters involving the work of ministries to be brought up for discussion. - Check and balance The most important procedure is the period allotted in each session to allow members of Parliament to put questions to Min about matters for why they are responsible to Parliament. Cabinet cannot be seen as disunited. This is to guarantee the efficiency of the policy to the effects that the Cabinet should ‘speak in one voice’. Consequences for They may be forced to resign. min who do not Propose a reduction in the min salary to indicate disapproval during Debate on Budget. answer the - Party solidarity ? questions It can also be uncertain during Public Accounts Committee of Parliament whether any satisfactorily. department has spent more money that Parliament had granted or had spent on other objects other that what Parliament had granted Why? In reality, such principle is difficult to enforce. Why? Emphasis given to party solidarity & party discipline. When ruling party is strong, most charges of improper or inefficient conduct in ministers are stifled under the blanket of party solidarity. In Britain, there were in fact more Ministers that ‘got away’ that min who did not in the last century. What is the There appears to be consensus in the community for a strong gvt to maintain political position in stability & bring about nat. unity through correcting & economics & imbalance among the Malaysia? varies races in the country. IN PRACTISE, DOES Discuss on the charges of maladministration in the Malacca hospital which resulted in MINISTERIAL several death in July & August 1973 and the abnormality of high rate of infant deaths at the RESPONSIBILITY same hospital APPLIES IN MALAYSIA? Thus for the time being at least, the convention can be said to operate in malaysia more in form than in reality Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 2. Cabinet cannot be seen as disunited. This is to guarantee the efficiency of the policy to the effects that the Cabinet should ‘speak in one voice - impression of the public when there is disagreement - they should be untied, speak in one voice - first, just have to keep quite- can express it in cabinet meeting Consequences/implications for ministers who do not answer the questions satisfactorily? - They may be forced to resign by their own party - proposal from a member of parliament to ask them to resign/ proposal to reduce or cut the minister salary - Propose a reduction in their salary to indicate disapproval during debate on budget. In reality such principle is difficult to enforce. Emphasis given to party solidarity and party discipline. (when ruling party is strong, everything is stifled under the blanket of party solidarity) - Not happen in Malaysia, due to party solidarity In Britain there were in fact more Ministers that got away than ministers who did not in the last century. However, there is a general consensus in society that min are liable to lose their office should they be guilty of mismanagement or administrative blunderings. - Better than Malaysia parliament The role of press and other mass media to inform public about mismanagement or improper use of public fund. - Social media, if the public not satisfy THE APPLICATION In 1956, Sir Edward Boyle the economic minister resigned as he could not agree with the OF MINISTERIAL invasion of Egypt during Suez crisis. RESPONSIBILITY IN BRITAIN In 1981, Keith Speed, the British Navy Minister was dismissed by Mrs Thatch er the PM for his outspoken criticism of the gov. policy to reduce naval forces. POSITION IN Political realities in Malaysia apply a different kind of democracy compared to Britain. MALAYSIA There appears to be consensus in the community for a strong government to maintain political stability and bring about national unity through correcting and economics and imbalance among the varies races in the country. Dato Aziz Ishak ➔ Minister of agriculture was forced to resign because of his disagreements with other members of the cabinet and not because he had publicly expressed criticisms against gov. policies. Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 Dato Abd Rahman Talib ➔ Mins. Of Edu was forced to resign bcs he had lost a court case in which he had sued a member of the opposition for libel and slander in connection with statements made by the opposition member charging the Minister with corruption and misuse of public office for personal gain. Thus the political environment of Malaysia does not appear to have the characteristics that allow the convention of ministerial responsibility to operate fully and effectively. - But it does not mean that there is no ministerial responsibility at all this means that government prefers to deal with probs of maladministration or mismanagement of gov. funds thru more internal methods rather than to discuss these matters in open debate in parliament. - Preference of the government Within the executive branch of gov. there are agencies created for matters involving maladministration and corruption. - Corruption agency PUBLIC SERVANT Whether dismissal of Yusof is lawful or not? 1. Whether Yusof’s right to be heard is fulfilled? Based on the fact that Yusuf was dismissed on ‘other information’ that was not made known to him which may affect his prior explanation. The dismissal was unlawful because he was not given reasonable opportunity to be heard on the “other information” that he had no knowledge of.- Malek’s case 2. Whether rule against bias existed in this case? Based on the fact that Yusuf used to make complaint against one of the members of the disciplinary tribunal who was his former superior. One of the tribunal member was Yusof’s superior which he made a complaint against so it can be assumed that the decision to dismiss Yusof has personal feelings laced in it. As Yusof was not given the right to be heard and the element of rule against bias exist in this case, Yusof’s dismissal was unlawful. Thus he can demand to be reinstated back to his original post. A. 132- definition Part of the executive. They implement the decision/law that executed/made by the cabinet. A. 135- right for The devote the whole working life for public service in return for proportionate emolument reasonable and pension for old age. opportunity to be Never acquired wealth and not exposed to unemployment or other risk of commercial life. heard when - Tak kena buang kerja Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 dismissed/ reduce The definition of public servant not provided in Federal constitution but define who are in rank those working in public service. A.132 (a)-(f) laid down- who are those working in public service. If under PS under exception of A. A.132 (3) The public service shall not be taken to comprise— 135(2)- reasonable (a) the office of any member of the administration in the Federation or a State opportunity to be - Meaning of ‘members of administration’ mentioned in A.132 (3), office of profit’ and heard could not be public authority (cross refer A.160) not considered as PS. afforded against “member of the administration” means, in relation to the Federation, a person holding the public servant office as Minister, Deputy Minister, Parliamentary Secretary or Political Secretary and, in relation to a State, a person holding a corresponding office in the State or holding office as member (other than an official member) of the Executive Council - Not considered as public servant A.132 (3)(b) the office of President, Speaker, Deputy President, Deputy Speaker or member of either House of Parliament or of the Legislative Assembly of a State; or (c) the office of judge of the Federal Court, the Court of Appeal or a High Court; or (d) the office of member of any Commission or Council established by this Constitution or any corresponding Commission or Council established by the Constitution of a State - election/ education Commission (e) and diplomat Principles of PS: i. *Above party politics* is serving the gov. They must serve the gov. of the day. (*they have to be impartial, cannot actively involved in politics) - cannot have any political inclination - should not affect their position, They must serve the government of the day. ii. Entitled for impartial treatment after appointment. iii. the public servant hold office during pleasure of YDPA (A.132(2A)) (when receive letter from gov agencies, usually stated ‘urusan sri paduka baginda’) iv. they are Only eligible and not entitled to pension V. whether there is a situation in the country like pandemic, there is degree of security of employment Vi. Terms of office may be amended unilaterally. i.e the authority can change the administrative rules and regulation without consulting the public servant A. 132(2A) ‘Hold office during pleasure of YDPA or Head of State as provided by the State constitution’ DOCTRINE OF PLEASURE Hold office during pleasure- Their appointment is based on the discretionary power of the government. Their position is based on the mercy of the government and the employee can be dismissed without even having prior disciplinary case. appointment- promotion- transfer Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 This is to reinstate the common law position. However, it is subject to the FC. Holding office during pleasure would include subject of appointment, promotions, transfers, salaries, other benefits. Ridge v Baldwin Privy Council had classified 3 categories of service: ➔ Pure contractual basis ➔ Holding office during pleasure where appointment is based on the discretion ➔ Employee who hold office during good pleasure. (employee would not be dismissed except for breach of certain standard of conduct. The employee has the right to be heard) Rights to be heard A.135 (only dismissal and reduction in rank. Termination xleh) Haji Arifin v Gov of Pahang ➔ FC: “here in Malaysia there is no such things as permanent service, though the expression is mush used by gov servants, there is no such thing as permanent service bcs every member of public service (other than judge and Auditor General) holds office during the pleasure of the YDPA at federal level /State authority. ➔ PS are employed for public good so if they are no longer in position to serve the public good, Authority has the right to dismiss at will. iv. Only eligible and not entitled to pension v. Degree of security of employment vi. Terms of office may be amended unilaterally. ie authority can change administrative rules etc (without consulting the PS) Whether the A public servant has no right to hold a post until retire, he cannot insist to hold the post transfer of a civil until the age of retirement servant is the right of the A public servant has no right of compensation for lost of office government to - If He was dismissed decide A public servant has no right against transfer Pengarah Pelajaran Wilayah Persekutuan & Ors. V. Loot Teng Yee ➔ He was a teacher in one of the schools in KL and later transferred to Terengganu. He challenged the court. A school teacher in KL was transferred to another school in Jerteh, Terengganu Claimed transfer was inoperative and void and that he is still "legally entitled" to continue teaching at his old school ➔ FC: “as civil servant holds office during pleasure, not only the length of the service is subject of pleasure but the time and place of this service is also similarly subject of pleasure. Thus whether a civil servant should be transferred, and if so where and when the transfer is to be made are matters for the gov. to decide” Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 For dismissal and reduction in rank procedural safeguards in Art. 135 of FC must be observed but in cases of transfer and other matters no such safeguards need be followed No officer can claim to have a legal right of non-transferability because by joining the Government service they are subject to the pleasure of the YDPA - no right against transfer Hold office during the pleasure of YDPA means right to dismiss at will. The rationale of giving power to dismiss at will is that since public servant is employed for the public good therefore authority should be able to dismiss when the employments is against public interest. - Because public servant serves for the public good, if they cannot serves for the public good for certain reason, they could be dismissed As per Art. 132(1)(h), Mimi is considered as a public servant, thus she holds the office during the pleasure of YDPA as stated in Art. 132(2A) Relying heavily on the case Pengarah Pelajaran WP & Ors v Loot Ting Yee, Mimi shall not refuse the order to of transfer given to her as such transfer is the subject of YDPA and as a public servant, it is obligated for Mimi to abide the order. The government has the right to decide on Mimi's transfer of school as their will Thus, there is no protection given to public servant. The protection only given when; i. he is being Dismissed – there is an element of punishment or involves element of penalty ii. Reduction in rank – involves element of penalty. Refer to A. 135 (2) TERMINATION ,DISMISSAL AND REDUCTION IN RANK IS NOT THE SAME Termination-Does not have element of penalty Rights to be heard A.135 (only dismissal and reduction in rank. Termination xleh) element of penalty Dhingra v Union of India, the Indian court had evolved 2 penalty tests; Dismissal involves element of penalty -In order for a ➔ A servant was punished if either; first, he was deprived of a right to hold a post or he public servant to was visited by evil consequences. exercise his right under A. 135, it has - Dismissed usually because serious cause, involve in drug/ absent to be proved that - If he was terminated because of the term of the contract, there is no stigma on him the case involved dismissal or ➔ Evil consequences: refers to forfeiture of payment or allowances, loss of seniority in his reduction in rank substantive rank, stoppage or postponement of future chances of promotion, loss of benefit already earned or stigma on his name or misconduct or incompetency. Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 but not - usually a public servant is dismissed because of misconduct or incompetency. termination These tests of Dhingra v Union of India were applied by Privy Council in; Munusamy v Public Service Commission ➔ An immigration officer whose appointment as an assistant passport on probation was terminated due to misrepresentation in his educational qualification. He claimed that he should be given reasonable opportunity of being heard. - In order for a public servant to exercise his right under A. 135, it has to be proved that the case involved dismissal or reduction in rank but not termination - Mere termination A 135(2) will not be applicable ➔ “A.135 applied only when dismissal, removed or reduction in rank is inflicted under circumstances involving the levelling of some imputation or charge against the servant and the imposition of punishment or penalty. It also decided that penal consequences or punishment exist if an order for the reduction of a member of public service entails or provides for forfeiture of pay or allowances, loss of seniority in a substantive rank, or the stoppage or the postponement of his future chances of promotion..” ➔ In this case it was neither dismissal nor reduction in rank, he was terminated, if he was terminated, the right under A. 135 will not be applicable Situations where - it is not a dismissal if it does not involves element of penalty/ punishment termination of service does not i. Giving the stipulated period of notice of payment in lieu of notice. amount to The PS remedy lies in damages if the termination was in breach of contract, but he will not punishment: be granted specific performance on the declaration that he is still in service. - If the public servant was given period of notice of payment in lieu of notice. - Given a notice of termination in lieu of payment ii. Revert the servant to the substantive post (from probation or temporary post) - They do not have the right to hold the post until he retire iii. Compulsory or premature retirement, based on the principle that he has no right to any post whether temporary or permanent. (eg. Bcs health issues) - public servant has the right to hold the post - pre matured retired/ compulsory retirement due to health issues, does not amount to dismissal iv. Abolition of the office which public officer holds - the principle is that, the authority has unliteral right with regards to term and condition, without referring to the public servant - Terms of office may be amended unilaterally. i.e the authority can change the administrative rules and regulation without consulting the public servant Hj Arifin v Gov. of ➔ Court accepted the penalty test that dismissal was a penalty Pahang Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 ➔ However, if the PS was terminated under a term in his contract of service, that termination didn’t involve a penalty or punishment so as to make it dismissal under A.135(2) Mahan Singh v Only dismissal case or reduction of rank can be discussed under Art 135. Termination does GOM not equal to dismissal as dismissal has punishment element to it. ➔ P a PS was terminated under reg 44 of the Public Officers Regulations 1969 which provide for compulsory retirement under public interest after receiving a report on his work and conduct. - Might happen if the public servant does not perform his work satisfactorily, therefore the authority has the right to ask for compulsory retirement. ➔ Privy Council: “not every PS whose employment is terminated by the gov against his will is within the meaning of A.135. for dismissal to arise, the decision to terminate the employment must be connected with conduct of the servant in relation to his office which is regarded by the government as unsatisfactory or blameworthy and the consequences of the termination must involve an element of punishment. - the public servant has been dismissed, it usually involve a very serious disciplinary case or absent from office after given several notice A.135(2) provides that Public servant shall not be dismissed or reduced in rank without given a reasonable opportunity of being heard. RIGHT TO BE A.135(2) No member of such a service as aforesaid shall be dismissed or reduced in HEARD A.135(2) rank without being given a reasonable opportunity of being heard: EXCEPTION !! Can be found in Public Officer Conduct and Disciplinary Action 1993. (Chapter D) A PS will be furnished with details of allegations against him in writing and he is given the opportunity to reply to the allegations in writing. If an oral hearing is held, the allegation will be read to him and he is given the opportunity to defend himself and bring his witnesses to that effect. - reasonable opportunity of being heard. What Is Natural Whether the right embraces in Article 135 (2) includes both rules of natural justicewhich are Justice? right to be heard (audi alteram partem) and right against bias (nemo judex in causa sua)?? (rights to be heard = audi alteram partem & rights against bias = nemo judex in causa sua) According to Jayakumar, the right embraces both rules, audi alteram partem and nemo judex in causa sua According to Trindale, only right to be heard is included. Surinder Singh Kanda v The Government of the Federation of Malaysia MLJ 169 “The rule against bias is one thing. The right to be heard is another. Those two rules are Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 the essential characteristics of what is often called natural justice. They are the twin pillars supporting it.” A procedure used to safeguard the citizen against improper exercise of power by public authority A fair administrative procedure to be followed by the administrative body in arriving at the right decision Natural justice represents the idea that (1) a person is entitled to a hearing and (2) the hearing must be a fair hearing If the right of hearing is specifically conferred by the Constitution or statute, it is not considered as part of natural justice but a requirement under the Constitution or statutory provisions Procedures Procedures governed under Public Officer Conduct & Disciplinary Action 1993 (Chapter D) A public servant will be furnished with details of allegations against him in writing. He will be given an opportunity to reply to the allegations in writing. If an oral hearing is held, the allegations will be read to him. He will be given an opportunity to defend himself and bring his witnesses. Surinder Singh Kanda v The Federation of Malaya ➔ The dismissal was void because he was denied a reasonable opportunity of being heard. ➔ “the rule against bias is one thing. The right to be heard is another, the two rules are the essential characteristics of what is called natural justice. They are the 2 pillars supporting it. The Romans put them in the 2 maxims. In this case, they are separate concepts and are governed by specific consideration” ➔ Arguments of P: the police commissioner had no power to dismiss him. ➔ His constitutional right has been infringed because he had no knowledge on the report made against him until the 4th day. ➔ The right to be heard carries with it the right of the accused to know the case made against him, the evidence given and the statements made affecting him; and he must be given a fair opportunity to correct or contradict them. Applying these principles, Kanda was not given a reasonable opportunity of being heard Procedures under Chapter D i. Statement will be sent to the officer concerned regarding any misconduct or disciplinary hearing. ii. Officer is allowed to send a written report within 21 days to state his side of the story. In Ganasundram v Public Service Commission, it was decided that Termination of service in accordance with contract does not amount to dismissal Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 - terminated after the expiry of contract then he can find job elsewhere - no black record (if dismiss, yes) Rohana v USM ➔ App was denied to have full discovery of all docs that belongs to respondent. ➔ The court emphasized that the right to be heard demands that opportunity to be given to all parties to be heard. It is important that public servant has the right to have access to materials considered by the authority - they cannot concealed any material which lead to prejudice against him Shamsiah and Raja Abdul Malek ➔ Court held their rights were breached. *in rohana, the content of the personal file was not known to the PS. In Shamsiah, “other info” was not made known to the PS. - the authority had breached he right of the public servant Raja Abdul Malek Muzaffar Shah v Setiausaha Suruhanjaya Pasokan Polis & ors RIGHT TO BE He claim to make a declaration that his dismissal from police force was null and void. The HEARD was plaintiff was an assistant superintendent with the Royal Malaysian Police Force when he breached. was dismissed. The first defendant wrote to the plaintiff informing him of the decision to institute disciplinary proceedings against him on charges, inter alia, of gross dereliction of duty and corruption. The plaintiff responded giving a very full explanation of the allegations made against him and requested for an oral hearing as well as for certain documents which were later supplied to him. The plaintiff then made a further written response. No oral hearing was held and by a letter of 4 April 1990, the first defendant informed the plaintiff of the decision to dismiss him after considering the plaintiff explanations in his two letters, and other information. The plaintiff alternatively submitted that the defendant had taken into account material information which had never been put to the plaintiff and without giving him the opportunity to comment on it. Held: A fair procedure includes the duty of an arbiter not to take into account matters that have not been first put to the accused with an opportunity for him to rebut them. The appeal was allowed and court order for his reinstatement. a.135 (2) right to Whether right to be heard includes right to be represented by a counsel? be heard / right to be Doresamy v Public Service Commission represented by an ➔ Whether the presentation of the applicant may be made by a solicitor on behalf of an agent aggrieved person? Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 different views ➔ Held: although the legislation is silent on the right to assistance of counsel it is not adequate to deprive the aggrieved person of such right. The right to counsel must be accorded to an aggrieved person especially when his reputation and livelihood in jeopardy bcs every man is entitled at common law to appoint an agent(lawyer) to act for him. - it is his right to be represented by a counsel *But no absolute right. It depends on a case to case basis right to be VC Jacob v AG represented by an ➔ Court held that there is no absolute right to be represented by an agent. agent - It depends on each case Whether there is Another issue is Whether there is separate right to plea (merayu untuk kurangkan separate right to hukuman) in mitigation? No. plea in mitigation? - When a public servant exercise his right to be heard, should there a separate right to plea in mitigation - There is no separate right,if he wants to plea in mitigation, should be when exercise his reasonable opportunity to be heard Whether right to Could the requirement under a.135(2) right to be heard done in a form of letter and not be heard include oral hearing oral hearing? In the case of Najar Singh v GOM & Ors ➔ Pricy council emphasised that a hearing is to be given but need not be an oral hearing. - Not necessary in a form of oral hearing Lembaga Tatatertib Perkhidmatan Awam Hospital PP & Anor v Ultra Badi’ ➔ Not necessary that a fair hearing must be an opportunity to be heard orally. The respondent was a hospital attendant at Penang General Hospital. He was issued a show cause letter by the appellant to institute disciplinary proceedings for dismissal or reduction in rank on the grounds that the respondent’s urine sample was positive of morphine, breaching Chapter D It was held that, The show cause letter to the respondent was clear and certain enough about the contemplated punishment which is dismissal or reduction in rank. The respondent had been informed earlier about the two possible punishments. But he made no representation as regards punishment though he had been made aware of the two possibilities Similarly in Ghazi bin Sawi v Ketua Polis Negara ➔ A police constable was denied an oral hearing. ➔ Court decided that it does not affect the case against him. - The court were of the opinion in exercise reasonable opportunity to be heard, it is Not necessary in a form of oral hearing *different approach adopted in Ang Seng Wan Downloaded by Aleesuff Study ([email protected])  lOMoARcPSD|50368711 Although there is no right for an oral hearing, it does not mean that it is correct to deny the need for an oral hearing in all cases. - There could be an oral hearing, it depends on case The appellant was an assistant superintendent of police. A summary of facts, report and statement of witnesses were circulated to members of the first respondent for the purpose of determining whether there was a prima facie case against the appellant. A show cause letter was sent to ASP Ang which contained four charges of corruption. In response to the letter, ASP Ang made a representation to Police Service Commissioner through his letter in which he denied the four charges and provided evidence to exculpate himself. The appellant had been dismissed from police force without oral hearing and being accused for receiving bribe. It is important to note that there was no report and statement of witnesses supplied to ASP Ang regarding the allegation. Held: Due to the lack of evidence from the respondent’s side, it was justifiable to hold an oral hearing or enquiry. The omission to hold an oral hearing was tantamount to a failure on the part of the first respondent to afford the appellant a reasonable opportunity of being heard. The appeal was allowed and ASP Ang will be reinstated in the police force. - No oral hearing, only through letter when he denied the 3 charges ➔ It is significant to note that no committee of inquiry was set up. The report and statement of witness were not supplied to Ang. - No oral hearing so no committee of inquiry was set up. ➔ The court stated that it was wrong in this case not to have oral hearing bcs he had tendered unchallenged evidence to prove his innocence. ➔ COA: “there is nothing in the law that which prohibits a disciplinary authority from holding an oral hearing or enquiry. The decision whether to hold an enquiry or not would depend on the circumstances of each case.