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Star (Used by permission)
Reflecting on the law by Shad Saleem Faruqi
The first post–1993 case against a serving Sultan has gone to full trial. The verdict will remain, forever, a signpost to guide future litigation.
MALAYSIA’S Constitution is unique in that it allows civil and criminal actions to lie against a serving Head of State.
Subject to the special provisions of Articles 181–183, civil and criminal actions can be commenced against the Yang di–Pertuan Agong and the state Rulers.
In this connection, an important constitutional case has almost gone unnoticed.
The Yang diPertuan Besar of Negri Sembilan is being sued in the Special Court by Standard Chartered Bank for recovery of a RM3.24mil debt.
The Special Court wound up the hearing last week and reserved its judgment.
History: Up to 1993 the sovereignty and prerogatives of the state Rulers were guaranteed by Article 181 of the Federal Constitution. The Article conferred on the Rulers an absolute personal immunity from proceedings in any civil or criminal court.
There is a wealth of case law to illustrate that the Sultans were beyond the reach of the law in their personal capacities.
1993 amendment: However, an amendment in January 1993 sought to make the Yang di–Pertuan Agong and the Sultans liable to criminal and civil proceedings in the ordinary courts.
Not surprisingly, the Amendment Bill was vetoed by all nine members of the Conference of Rulers. In March 1993 a compromise Bill was drafted and it offered Their Majesties four significant concessions.
First, no civil or criminal action can commence against Their Majesties in their personal capacities except with the consent of the Attorney–General under Article 183.
This “A–G filter” will not apply if the Yang di–Pertuan Agong or the Rulers themselves institute the proceedings to enforce their civil rights.
Second, Their Majesties will not be dragged to the ordinary courts. A Special Court will be created under Articles 181(2) and 182 to try all cases by or against the Yang di–Pertuan Agong and the Rulers.
Third, the Conference of Rulers will have the right to nominate two out of five judges on the Special Court: Article 182(1).
Fourth, if convicted of a crime, the Yang di–Pertuan Agong and the Rulers and their consorts may be pardoned by the Conference of Rulers: Article 42 (12)(b).
This face–saving draft was ultimately assented to by a majority of the members of the Conference of Rulers in March 1993.
In one area, however, there was no guidance in the 1993 amendment. This was about the fate of a Ruler during the period of the prosecution or after the conviction.
1994 amendment: This flaw in the law was removed by a constitutional amendment in 1994. Part I of the Eighth Schedule was amended by Section 1A (1) which provides that “Where the Ruler is charged with an offence under any law in the Special Court ? he shall cease to exercise the functions of the Ruler of the State”.
Section 1A(3) mandates that “Where the Ruler is convicted of an offence in the Special Court and sentenced to imprisonment for more than one day he shall cease to be the Ruler of the State unless he receives a free pardon”.
The overall effect of the amendments is quite revolutionary.
> Royal immunities are abolished.
> Rulers can be sued by ordinary citizens in civil cases provided the A–G gives his consent under Article 183.
> Rulers can be prosecuted by the state for crimes provided the A–G consents.
> If convicted they could be imprisoned like ordinary criminals.
> If convicted and sentenced to imprisonment for more than one day they are automatically dethroned.
> The iron–clad guarantee of Article 71 that the Federation shall guarantee the right of a Ruler “to hold, enjoy and exercise the constitutional rights and privileges of Ruler of that State in accordance with the Constitution of that State” is now a matter of history.
Case law: Articles 181–183 have generated interesting case law. In Faridah Begum v Sultan Haji Ahmad [1996] 1 MLJ 617 a Singaporean sought to sue the Sultan of Pahang for defamation.
The Special Court interpreted Articles 181–183 narrowly and held that the right to sue a Sultan belonged only to a citizen.
A foreigner has no right to commence proceedings under Articles 181–183.
In Tengku Idris Shah v Dikim Holdings [2003] 2 MLJ 1, the plaintiff, a son of the then Sultan of Selangor, had on May 6, 1998, sued the defendants in the High Court.
On April 24, 1999, the plaintiff was appointed to exercise the functions of ‘Sultan’ when his father Sultan Salahuddin was elected as the 11th Yang di–Pertuan Agong.
On July 30, 2001, the High Court referred to the Federal Court the question whether the plaintiff, who was appointed to exercise the functions of a Sultan, was a ‘Ruler’ for the purpose of Articles 181, 182 and 183. The Federal Court answered the question in the negative.
On Nov 21, 2001, Sultan Salahuddin passed away and on Nov 22, 2001, the plaintiff was proclaimed the Sultan of Selangor. The case was referred to the Federal Court again.
Defendant’s counsel argued that since the case commenced in the High Court before the plaintiff ascended the Selangor throne, Articles 181–183 were not applicable and the suit should remain in the High Court.
The term ‘Ruler’ should be construed to mean ‘Ruler at the time when the cause of action arose’. The Federal Court held that as of the date when the plaintiff was proclaimed a Ruler, he acquired all the attributes of sovereignty under Article 181(1).
Though he could sue and be sued in his personal capacity, such proceedings must be brought in the Special Court.
In Datuk Hari Menon, suing as legal representative of Tuanku Ja’afar Ibni Almarhum Tuanku Abdul Rahman, Yang diPertuan Besar Negri Sembilan [2005] 4 MLJ 506, the plaintiff had commenced an action pursuant to a power of attorney given to him by the Yang diPertuan Besar of Negri Sembilan.
It was argued that the plaintiff (Menon) lacked the right to sue as the action must be commenced by the Ruler himself in the Special Court.
In a surprising decision the High Court ruled that Article 181(1) includes the Ruler’s prerogative to grant a power of attorney to any person of legal capacity to commence legal proceedings for and on behalf of the Ruler.
The consequence of this High Court judgment is that a clever device has been found to circumvent Article 182. The Article had sought to confer an exclusive power on the Special Court to try suits by or against the Rulers.
If any Ruler wishes to avoid the Special Court, he can grant a power of attorney to any agent to bring a suit in his (agent’s) name on behalf of the principal (the Ruler) in the ordinary courts.
This is very intelligent but is surely contrary to the intention of Articles 181–183.
The judicial verdict in the more recent Chartered Bank case against the Yang diPertuan Besar of Negri Sembilan is eagerly awaited.
Whichever way the judicial gravel falls, this will be a landmark decision because the Faridah Begum suit in 1996 against the Sultan of Pahang was dismissed on her ineligibility to sue.
This is the first post–1993 case against a serving Sultan that has gone to full trial. The verdict will remain, forever, a signpost to guide future litigation.
Dr Shad Saleem Faruqi is Professor of Law at UiTM