Gaps in Special Court law
Reflecting on the law Oleh SHAD SALEEM FARUQI
IN the last few months, several novel legal issues relating to the Sultan of Kelantan and his royal family have ended up in courts. The most spectacular was the application on behalf of the Sultan for a writ (order) of habeas corpus to free him from the allegedly unlawful restraint exercised over him by the State authorities of Kelantan when he sought to travel abroad for medical treatment.
The application was slated to be heard in the Special Court on May 9 but had to be postponed due to lack of quorum. The filing of the application draws our attention to the constitutional provisions relating to proceedings by or against the Rulers under Articles 181-183.
Pre-1993 immunity: Up to 1993 the sovereignty and prerogatives of the State Rulers and their absolute immunity from proceedings in any court were guaranteed by Article 181.
Due to the unfortunate abuse of their immunity by several Rulers, the Government of then Prime Minister Tun Dr Mahathir Mohamad, in an extremely courageous and controversial move, amended the Federal Constitution in 1993 and 1994 to abolish these immunities but with the following concessions to their Highnesses:
A-G filter: No civil or criminal action can commence against their Highnesses in their personal capacities except with the consent of the Attorney-General: Article 183.
Special Court: Their Highnesses cannot be dragged to the ordinary courts. A Special Court has been created to try all cases by or against the Yang di-Pertuan Agong and the Rulers: Articles 181(2) and 182(2) & (3).
Composition of Special Court: The Special Court has five judges. The Conference of Rulers has the right to nominate two of the judges: Article 182(1) and the other three are the Chief Justice of the Federal Court and the two Chief Judges of the High Courts.
Pardon: If convicted of a crime, the Yang di-Pertuan Agong, the Rulers and their consorts may be pardoned by the Conference of Rulers: Article 42(12)(b).
Despite these concessions, the overall effect of Articles 181-183 and section 1A of the Eighth Schedule on the position of the Rulers is quite drastic. Royal immunities are abolished. With the consent of the A-G, the Yang di-Pertuan Agong and the Rulers can be sued by ordinary citizens or prosecuted by the state. Where the Ruler is charged with an offence in the Special Court, he shall cease to exercise the functions of the Ruler of the State and those functions will devolve upon a Regent or a Council of Regency.
If convicted, a Ruler can be imprisoned like any ordinary person. No special place of detention is provided for by the law. Where a Ruler is sentenced to imprisonment for more than one day, he shall cease to be the Ruler of the State unless he receives a free pardon.
Putting the law under scrutiny, some issues remain enshrouded in mystery and mystique.
Royal families: Are members of royal families immune from the law? The legal answer is that the pre-1993 immunities applied only to the Sultans. Their consorts, Regents and other family members never enjoyed any immunity. Note for example the case of PP v Tengku Mahmood Iskandar (1973).
Likewise, the Ruling Chiefs or the Undangs of Negeri Sembilan are not part of the definition of “Ruler” and enjoy no special dispensation: Dato Menteri Othman Baginda v Dato Ombi Syed Alwi (1981).
Acting Sultans: Despite their exalted position, it was held in the case of Tengku Idris Shah v Dikim Holdings([2003) that acting Sultans are not covered by the definition of “Ruler” and are, therefore, open to civil or criminal proceedings in the ordinary courts.
The A-G filter: Though the Constitution gives the Attorney-General the momentous and discretionary power to grant or refuse consent to an action against the King or a Ruler, it appears that the “A-G filter” will not apply in some circumstances. First, if the Yang di-Pertuan Agong or the Rulers themselves institute proceedings to enforce their civil rights and secondly, if the court proceedings relate to the actions of the King or the Rulers in their official capacities. In such situations, the Government concerned will be sued.
A third exception is when a Ruler sues through an attorney: Dato’ Hari Menon (suing as legal representative of Tuanku Ja’afar Ibni Almarhum Tuanku Abdul Rahman, Yang Di Pertuan Besar Negeri Sembilan (2005).
Jurisdiction: Under Articles 181-183 as amended in 1993, the Special Court has exclusive jurisdiction to try all civil and criminal cases by or against their Highnesses no matter where the cause of action arose.
No one could have anticipated that one day the Special Court would be asked by a Sultan to grant him habeas corpus or a declaration of his rights. The law is silent about a number of other momentous issues: whether the Special Court has jurisdiction to resolve disputes relating to a Sultan’s incapacity? What is the extent of an acting Sultan’s powers? Specifically, can an acting Sultan alter the composition of the State Succession Council to his advantage?
Muslim personal law: An engaging issue has come up whether the Syariah Courts’ monopoly over Muslim personal law applies against the Special Court? For example, if a Sultan divorces his wife and the matter is contested or if the consort herself seeks a divorce, which court has jurisdiction?
The law is by no means clear. In favour of the view that despite Articles 181-183 the Syariah Court has exclusive jurisdiction, one can point firstly, to Article 121(1A) that in matters of Muslim personal law the ordinary civil courts cannot interfere.
Secondly, under Article 182(4), the jurisdiction and powers of the Special Court are the same as that of civil courts under the Federal Constitution or any federal law. Syariah matters do not belong to civil courts or to federal law and should therefore be outside the Special Court’s jurisdiction.
Thirdly, the composition of the Special Court and the qualification of its judges under Article 182(2) are so defined that not a single judge may have syariah qualification. In fact, the CJ who is the Chairman and the two Chief Judges could conceivably be non-Muslims.
Fourthly, rules relating to the Special Court link it closely with the Attorney-General but under Article 145(3), the A-G has no jurisdiction over syariah court matters.
On the other hand, it could be argued that the Constitution repeatedly provides that no proceeding whatsoever shall be brought in any court by or against the Ruler in his personal capacity except in the Special Court: Articles 181-182. To exempt the Rulers from all civil courts but subject them to the Syariah Courts of which they themselves are the titular heads does seem unusual.
The Special Court is not an ordinary civil court and is not ousted by Article 121(1A). Under Article 183(7), the King on the advice of the Chief Justice may make any adaptations or alterations to the law for the removal of any difficulty.
It is often said that hard cases produce bad precedents. They put the law on trial. This is what has happened to Articles 181-183 as a result of Kelantan’s imbroglio – its war games.
> Shad Saleem Faruqi is emeritus professor of Law at UiTM and visiting professor at USM
