Faridah Begum bte Abdullah v. Sultan Haji Ahmad Shah Al Mustain Billah Ibni Almarhum Sultan Abu Bakar Ri’Ayatudin Al Mu’Adzam Shah, 1 MLJ 617 is the first and, prior to 2009, the only Malaysian case to have been heard by the Special Court of Malaysia, a court specialised in presiding over proceedings brought by or against the Yang di-Pertuan Agong and the Malay Rulers of the respective Malay states. The Special Court ruled that the plaintiff, being a Singapore citizen, could not be conferred the right to sue the Sultan of Pahang as the precise and clear wording of article 182(2) of the Federal Constitution of Malaysia did not entitle the plaintiff to take legal action against any of the Malay Rulers in the latter's personal capacity.
Background
Article 181(1) of the Federal Constitution preserves and protects the sovereignty, prerogatives, powers and jurisdiction of a Malay Ruler. Before March 30, 1993, the Yang di-Pertuan Agong and a Ruler could not be sued at all nor charged with a criminal offence in his personal capacity as provided by articles 32(1) and 181(2) of the Federal Constitution. However, Parliament amended the said articles by adding the words ‘except in the Special Court established under Part XV’ of the Federal Constitution:
The amendments took away the immunity of the Yang di-Pertuan Agong and a Ruler from being sued or charged with a criminal offence but the proceedings must be brought in the Special Court. Article 182(3) of the Federal Constitution further confers exclusive jurisdiction on the Special Court to try all offences committed by a Ruler and all civil cases brought by, or against, a Ruler. Parliament in essence amended the Federal Constitution by introducing Part XV which contains articles 182 and 183 of the Federal Constitution:Asmida bt Ahmad, Fork, Yow Leong & Andrews, Paul Linus. "Chapter 3 - Other Courts With Specialised Jurisdiction". In Legal Systems in ASEAN - Malaysia.
The plaintiff, Faridah Begum binti Abdullah, a businesswoman and a Singapore citizen, took legal action against the Sultan of Pahang, Sultan Haji Ahmad Shah Al Mustain Billah Ibni Almarhum Sultan Abu Bakar Ri’Ayatudin Al Mu’Adzam Shah for alleged libel committed against her and sued for damages in the Special Court. The Attorney General had given his consent to the plaintiff to sue the Sultan of Pahang under article 183 of the Federal Constitution. Nonetheless, the issue of the alleged libel was never addressed as it was not a question of fact but a question of law, specifically whether the plaintiff, not being a Malaysian citizen, had the right to sue the Sultan in his personal capacity in the Special Court.
Decision
The case was heard by a bench of five judges, empanelled by the Chief Justice of Malaysia, Tun Datuk Seri Mohamed Eusoff bin Chin, the Chief Judge of the High Court of Malaya, Tan Sri Anuar Zainal Abidin, the Chief Judge of the High Court of Sabah and Sarawak, Tan Sri Datuk Amar Chong Siew Fai and two other Federal Court judges, Justices Tun Azmi bin Mohamed and Tun Mohamed Suffian bin Mohamed Hashim.
Majority Judgement
The Special Court issued its decision on February 6, 1996 and February 7, 1996. In a 4-1 judgement, the Special Court decided that the plaintiff, being a Singaporean citizen, was not entitled to take proceedings against the Sultan of Pahang in the Sultan’s personal capacity as the Sultan as well as the Malay Rulers were legally immune from lawsuits being brought against them from anyone outside of Malaysia. This principle was based on the concept of reciprocity and the principle of sovereign immunity under international law.
The majority judgement was written by Chief Justice of Malaysia, Tun Datuk Seri Mohamed Eusoff bin Chin and joined by the Chief Judge of the High Court of Sabah and Sarawak, Tan Sri Datuk Amar Chong Siew Fai and Justices Tun Azmi bin Mohamed and Justices Tun Mohamed Suffian bin Mohamed Hashim.
In addressing Parliament’s intention of conferring rights on persons outside of Malaysia the right to take legal action, Chief Justice Tun Datuk Seri Mohamed Eusoff bin Chin reasoned that the general presumption was that Parliament's legislative competence was normally restricted to territorial nexus and that statutes were not intended, in the absence of clear express language, to operate on events taking place or on persons outside the territories to which the statutes were expressed to be applied.
The Right Honourable Chief Justice further continued that article 73(a) of the Federal Constitution allowed Parliament to make laws having effect outside Malaysia. For instance, it can be seen in section 27 of the Prevention of Corruption Act 1961, which expressly provided that the provisions of that Act shall, in relation to citizens, have effect outside as well as within Malaysia. There was another presumption that a statute was not intended to apply to persons outside the territories of a country enacting it, and it was particularly strong in the case of foreigners, for the normal presumption is further strengthened by another presumption that the legislature intended to respect the rules of international law.
Chief Justice Tun Datuk Seri Mohamed Eusoff bin Chin also noted that the Federal Constitution still preserved, by virtue of article 181(1) of the Federal Constitution, the sovereignty, prerogatives, powers and jurisdiction of the Rulers, and article 181(2) of the Federal Constitution provided the narrow exception that if a Ruler was to be sued, the proceedings must be brought in the Special Court established by article 182(1) of Federal Constitution. The Special Court of Malaysia was conferred exclusive jurisdiction under article 182(3) of the Federal Constitution to try civil cases brought by or against a Ruler, which meant that the courts established under article 121 of the Federal Constitution cannot try such cases at all. Therefore, the amendment to article 181(2) of the Federal Constitution and the introduction of article 182 of the Federal Constitution were matters of a special and exceptional kind and were not intended to give rights to a person who is not a citizen of Malaysia, unless article 182 of the Federal Constitution so expressly provides by clear and unambiguous language.
The Right Honourable Chief Justice made reference to article 17 of the Constitution of the Republic of Singapore, which stipulated that the President of the Republic of Singapore is not liable to any proceedings whatsoever in any court. Therefore, a Malaysian citizen cannot sue the President of Singapore in any Singapore court. In addition, the Ruler of a Malay State cannot even be sued by any person in a Singapore court unless the Ruler waives his immunity.
Chief Justice Tun Datuk Seri Mohamed Eusoff bin Chin concluded that even if Parliament were to confer by the express language under article 182 of the Federal Constitution any right on a Singapore citizen to sue the Yang di-Pertuan Agong or a Ruler, such conferment of a right was unlawful under article 155 of the Federal Constitution and was of no effect, unless a similar right was given to a Malaysian citizen in Singapore to sue the President of Singapore. Parliament had wide legislative powers to make laws under articles 73(a) and 74 of the Federal Constitution but such powers were restricted by article 74(3) of the Federal Constitution. Parliament's legislative power was therefore subject to the special provision of article 155 of the Federal Constitution, so that even if Parliament were to confer a right on a Singapore citizen to sue the Yang di-Pertuan Agong or a Ruler, such conferment of right is illegal and ultra vires article 155 of the Federal Constitution:Asmida bt Ahmad, Fork, Yow Leong & Andrews, Paul Linus. "Chapter 3 - Other Courts With Specialised Jurisdiction". In Legal Systems in ASEAN - Malaysia.
Concurrences
Chief Judge of the High Court of Sabah and Sarawak, Tan Sri Datuk Amar Chong Siew Fai, Justice Tun Azmi bin Mohamed and Justice Tun Mohamed Suffian Mohamed Hashim authored separate concurrences. Chief Judge Tan Sri Datuk Amar Chong Siew Fai rejected the argument of the plaintiff’s counsel, Dato’ Seri Utama Karpal Singh s/o Ram Singh Deo, stating that although the distinction between ‘person’ and ‘citizen’ was beyond question, article 182(2) of the Federal Constitution employed none of those words. It fell short of expressing whether the proceedings were available to citizens only or to all persons including foreigners and was open to statutory interpretation. Thus, in the interpretation of a constitutional provision, while effect should be given to the language used, recognition should also be given to the character and origins of the instrument.
The Right Honourable Chief Judge further argued that permitting a foreigner such as the plaintiff to sue the Malay Rulers would be a substantial alteration to the position and privileges of the latter. Hence, such a situation ought not to be taken to have been intended except by clear and unequivocal words to the effect. Chief Judge Tan Sri Datuk Amar Chong Siew Fai also explained that the doctrine of reciprocity assumed considerable significance, in consideration that the President of the Republic of Singapore was absolutely immune from any suit brought by persons outside of Singapore.
Chief Judge Tan Sri Datuk Amar Chong Siew Fai concluded that to allow a citizen of Singapore to sue the Malay Ruler when the Constitution of the Republic forbade her President to be sued by a citizen of Malaysia would not be in accordance with the doctrine of reciprocity under international law. Hence, article 182(2) of the Federal Constitution, as it stood, fell short of the effect as the ambiguous or imprecise wording in the said provision did not entitle the plaintiff, as a citizen of the Republic of Singapore, to sue the Sultan of Pahang.
Justice Tun Azmi bin Mohamed wrote that the article 182 of the Federal Constitution not only had taken away the legal immunity enjoyed by the Sultan of Pahang from being sued but also abolished his rights to sue in the ordinary courts. Therefore, the Sultan of Pahang’s capacity to sue, or to be sued, cannot be recognised by the ordinary courts. As far as the ordinary courts were concerned, they continue as before to have no jurisdiction to hear any civil case against the Sultan of Pahang and in addition, they also ceased to have jurisdiction to hear all civil cases by the Sultan. The jurisdiction over these matters, even if the immunity was waived, had been conferred exclusively on the Special Court.
The Honourable Justice propounded that the courts must apply the established principle of interpretation applicable to written constitutions. The Federal Constitution is not an ordinary statute as it is the supreme law of the land, to which all existing and future legislative instruments must be subservient. The Constitutional (Amendment) Act 1993, the amendment which stripped off the immunity of the Malay Rulers, required the mandatory consent of the Conference of Rulers under article 38(4) of the Federal Constitution before the amending bill could become law with regard to every amendment directly affecting the privileges, position, honours and dignity of the Malay Rulers. Under article 159(5) of the Federal Constitution, any amendment of article 38 of the Federal Constitution per se is unconstitutional if passed without the consent of the Conference of Rulers.