The King Can Do No Wrong?: An Overview of Proceedings in the Special Court of Malaysia Against the Monarchs of Malaysia

Introduction

One of the least well-known courts in Malaysia is the Special Court of Malaysia where proceedings are brought involving the Yang Di-Pertuan Agong and the Rulers of a State. Enacted in 1993 under Article 182 of the Federal Constitution, the Special Court was established to try all civil suits and criminal cases brought by or against the Yang Di-Pertuan Agong or the Ruler of a State in their personal capacity. This article will provide a brief overview of proceedings in the Special Court of Malaysia.

Who Can Commence Proceedings in the Special Court?

To commence proceedings in respect of the Yang Di-Pertuan Agong or the Ruler of a State in their personal capacity, reference is made to Article 182(2) and 182(3) of the Federal Constitution which sets out as follows:

(2) Any proceedings by or against the Yang di-Pertuan Agong or the Ruler of a State in his personal capacity shall be brought in a Special Court established under Clause (1).

(3) The Special Court shall have exclusive jurisdiction to try all offences committed in the Federation by the Yang di-Pertuan Agong or the Ruler of a State and all civil cases by or against the Yang di-Pertuan Agong or the Ruler of a State notwithstanding where the cause of action arose.

In applying this provision, it has been determined that Malaysian citizens and Malaysian companies may commence civil proceedings in the Special Court. Additionally, the Rulers may commence counterclaims in Special Court proceedings that have been brought against them. In the case of Standard Chartered Bank Malaysia Berhad v Duli Yang Maha Mulia Tuanku Ja'afar Ibni Almarhum Tuanku Abdul Rahmad, Yang Di-Pertuan Besar Negeri Sembilan Darul Khusus [2009] 4 MLJ 1, the Special Court had allowed the Plaintiff’s claim for the sum of USD $999,772.44 with liberty to set-off the said sum against the fixed deposit of the Ruler that was held by the Plaintiff. Additionally, the Special Court had dismissed the Ruler’s own counterclaim for a declaration that the Plaintiff was not entitled in law to apply or appropriate the fixed deposit sum in settlement of any liability arising from the SBLC, damages and costs.

The Rulers may also commence civil proceedings in their own personal capacity in the Special Court and the Special Court retains exclusive, original and final jurisdiction to hear all such cases notwithstanding that legal proceedings had already been commenced in a different court prior to the ascension of that particular Ruler. In the case of DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v Dikim Holdings Sdn Bhd & Anor [2003] 2 MLJ 1, a suit was brought in the Kuala Lumpur High Court by the Plaintiff therein and that suit was pending trial prior to the Plaintiff’s ascension as the Sultan of Selangor. In determining the jurisdiction of the Special Court, it was held by Denis Ong JCA that:

“The problem here is that the suit was brought in the High Court in Kuala Lumpur before 22 November 2001 and was pending trial there. Dato Vendargon takes the stand that the suit should remain in the High Court to be tried there and that 'Ruler' in arts 181, 182 and 183 should be construed to mean Ruler at the time when the cause of action arose — not a Ruler when the proceeding is before the court because art 182(3) is specific on where but is silent on when the cause of action arose. Both Mr Lim and the senior federal counsel take the stand that the suit should be tried in the Special Court for the same reason, namely, because the plaintiff is now the Ruler of the State of Selangor regardless of when he became Ruler.

Having regard to the principles of law on accession, the Latin maxim rex nunquam moritur stated in Halsbury's, and art 181(1), I conclude that time, and therefore when the cause of action arose, is understood to be irrelevant to the construction or meaning of 'Ruler'. For that reason, it appears to me unnecessary to spell out 'when' the cause of action arose in art 182(3). In short, 'Ruler' in arts 181, 182 and 183 is a Ruler for all time which includes his successor in office. Upon his accession as a Ruler, I hold on issue (a) above that the High Court ceased to have jurisdiction over the plaintiff and thus could no longer continue to exercise jurisdiction to adjudicate on the suit. Article 181(2) operates to bar the suit in the High Court (see Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64). And I hold further that upon accession, the plaintiff comes within the exclusive jurisdiction of the Special Court. He can sue or be sued in his personal capacity only in the Special Court established under Part XV of the Federal Constitution compatible with his newly acquired status. That is the position of the plaintiff vis-a-vis the defendants under the Federal Constitution. To construe in the way as Dato Vendargon submits, is to import a limitation on the meaning of 'Ruler' in art 181(1) which would be inconsistent with the Latin maxim, would lead to discontinuity in the office of the Ruler and exclude his successor in office from invoking arts 181(2) and 182(2) besides demeaning the plaintiff, a Ruler, by placing him on the same footing as an ordinary litigant in the High Court. The constitutional position of the plaintiff upon accession as Ruler is safeguarded by art 70(1), and by art 38(4) no law directly affecting his position and dignity shall be passed without the consent of the Conference of Rulers.”

In the case of foreigners or non-Malaysian citizens on the other hand, the Special Court in Faridah Begum Bte Abdullah v Sultan Haji Ahmad Shah Al Mustain Billah Ibni Almarhum Sultan Abu Bakar Ri' Ayatuddin Al Mu' Adzam Shah [1996] 1 MLJ 617 has determined that foreigners or non-Malaysian citizens (in that case, the Plaintiff was a Singaporean citizen) are not entitled to commence proceedings in the Special Court. Notwithstanding this, the Special Court opined that the rule of Commonwealth Reciprocity under Article 155 of the Federal Constitution may apply to enable a Commonwealth citizen to commence proceedings in the Special Court if, and only if, their country of citizenship removes immunities against its own head of state to enable Malaysian citizens to commence proceedings against the foreign head of state in that Commonwealth country’s domestic courts. Using Singapore as an example, it was observed by Mohd Suffian FCJ that:

“In Singapore, its Head of State the President enjoys total immunity and may not be sued by anybody. If, and only if, Singapore amends its Constitution to allow a Malaysian citizen to sue the President in Singapore – in other words, only if there is reciprocity – only then may the Malaysian Parliament confer on a Singapore citizen a similar right or privilege to sue a Ruler in our country. The Singapore Constitution has not been so amended. Giving effect to the very clear language of art 155, I am of the opinion that the plaintiff, a Singapore citizen, has no right or privilege of suing HRH in the Special Court.

The Singapore President is the head of state of a sovereign country; the Ruler of Pahang is not, he is only head of a state of the Federation. He may not, for instance, appoint or receive ambassadors. But, nevertheless, the Pahang State Constitution refers to him in many articles as Sovereign, and so does the Federal Constitution.

Its art 181(1) provides:

Subject to the provisions of this Constitution, the sovereignty, prerogatives, powers and jurisdiction of the Rulers... within their respective territories as hitherto had and enjoyed shall remain unaffected.

That Article is meant to preserve the pre-Merdeka position of our Rulers who were then regarded as sovereign by British, Malayan and Singapore courts and therefore immune from legal process, a position since modified by Act A484.”

It is further arguable that the Special Court does not have any jurisdiction in respect of proceedings against the Yang Di-Pertua Negeri (i.e. the State Governors) or a Ruling Chief (i.e. the Undang) in Negeri Sembilan. In the case of Dato’ Menteri Othman Bin Baginda & Anor v Dato’ Ombi Syed Alwi Bin Syed Idrus [1981] 1 MLJ 29, it was observed by the Federal Court that a “Ruling Chief” cannot be interpreted to mean a “Ruler” for the purposes of invoking the Rulers’ Immunity under Article 181 of the Federal Constitution. It was held by Salleh Abas FJ:

“That the definition under Article 160(2) is a functional one is clearly reflected by the second limb of the definition as regards other States. Here while the definition of "Ruler" includes "any person who in accordance with the Constitution of that State exercises the functions of the Ruler", it excludes such person from being regarded as a Ruler for the purpose of Article 181(2), (dealing with judicial immunity), the First Schedule (dealing with election of the Yang di-Pertuan Agong) and the Fifth Schedule (dealing with the Conference of Rulers). Such exclusion is effected by the words "except in Article 181(2) and the Third and Fifth Schedules". Thus for these purposes — i.e. Article 181(2) the Third and the Fifth Schedules the status of a Ruler who is a descendant of a royal ancestor is preserved and not extended to others. He is a Ruler in the full sense of the word, both functionally and status wise. Others such as the Ruling Chiefs and the Yang di-Pertua Negeri are included in the definition of Ruler for certain purposes only. It appears therefore clear that by virtue of the context of Article 181 itself and the definition of Ruler under Article 160(2), an Undang is not intended to be included in the word "Ruler" under Article 181(2). Here I agree with the conclusion of the court below that "the immunity from proceedings as envisaged by Clause (2) of Article 181 cannot be held to cover an Undang", because for the purpose of this Article he is not a Ruler.”

Consent of the Attorney General is a Mandatory Pre-Condition

Prior to commencing proceedings in the Special Court against a Ruler, Article 183 of the Federal Constitution prescribes a mandatory pre-condition that needs to be satisfied. It states that:

“No action, civil or criminal, shall be instituted against the Yang di-Pertuan Agong or the Ruler of a State in respect of anything done or omitted to be done by him in his personal capacity except with the consent of the Attorney General personally.”

The requirement of obtaining consent from the Attorney General is a mandatory requirement and the giving of consent is a personal and non-delegable duty of the Attorney General. In other words, consent by any other legal officers (e.g. the Solicitor General or the State Legal Advisor etc), may be insufficient to satisfy this requirement under Article 183 of the Federal Constitution (see Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other appeals [2020] 1 MLJ 281).

However, the granting of consent by the Attorney General does not, in itself, preclude any party from raising any preliminary objections in respect of the jurisdiction of the Special Court. It was observed by Eusoff Chin CJ in Faridah Begum (supra) that:

“Mr Karpal Singh argued, quoting Abdul Hamid v PP [1956] MLJ 231 at p 232, that a consent, as opposed to a sanction, requires full consideration of the particular case. It is 'an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side' (1 Stroud (3rd Ed) p 582). I quite agree with the distinction between 'consent' and 'sanction'. But, it must be appreciated that when the learned Attorney General was considering to give or to refuse his consent, he did so alone without the benefit of arguments of learned counsel as had happened in this court. An application to the learned Attorney General under art 183 is made by the intended plaintiff, most probably accompanied by a statement of claim which normally contains, in summary form, the material facts on which the party pleading relies for his claim (O 18 r 7 of the Rules of the High Court 1980). Unless the plaintiff raises a point of law under r 11 of the same Order, the learned Attorney General may overlook giving consideration to it, just as what the court would have done had this issue of citizenship not been raised before us. Therefore, the granting of his consent by the learned Attorney General under art 183 of the Federal Constitution does not preclude any party raising any preliminary issue before the court.”

Additionally, the consent of the Attorney General itself may be challenged in judicial review proceedings in the event that the Attorney General’s consent appears to have been improperly or unlawfully given (see Five Star Heritage Sdn Bhd & Ors v Peguam Negara Malaysia & Ors Appeals [2023] 1 LNS 2423).

Procedures and Proceedings in the Special Court

The procedure regulating proceedings in the Special Court are governed by the Rules of the Special Court 1994. The rules generally cover, amongst others, matters pertaining to the quorum of the Special Court, the issuing of originating processes, the preparation and filing of pre-trial documents, the taking of evidence by witnesses and the granting of incidental directions and interim orders.

Additionally, rule 14A of the Rules of the Special Court 1994 provides that all hearings shall be done in camera (i.e. in private) and that media reporting restrictions on proceedings in the Special Court may be enforced by contempt proceedings. The media reporting restrictions may also be dispensed with as the case may be. Once a case is completed, the Special Court will pronounce its judgment in open court and the grounds of judgment may be reported by the media (see rule 14A and 20 of the Rules of the Special Court 1994).

What Happens Post-Judgment of the Special Court?

In respect of any execution and enforcement of judgments or orders of the Special Court, these judgments or orders shall be enforced and executed by a High Court or a subordinate court in Malaysia as it may be directed by the Special Court under rule 21 of the Rules of the Special Court 1994.

Additionally and upon the pronouncement of a judgment of the Special Court, Article 182(6) of the Federal Constitution provides that its decision shall be final and conclusive and shall not be challenged or called in question in any court on any ground. Additionally, rule 22 of the Rules of the Special Court 1994 provides that the Special Court shall have no power or jurisdiction to review any order or decision made by it after the close of proceedings. In other words, the decision of the Special Court cannot be appealed or challenged in separate proceedings such as judicial review proceedings.

However, reference should be made to rule 24 of the Rules of the Special Court 1994 which state that:

“For the avoidance of doubt, it is declared that nothing in these Rules or in any rules of court shall be deemed to limit or affect the inherent powers of the Special Court to make any order it considers necessary to prevent injustice or to prevent an abuse of the process of court.”

The wording of rule 24 of the Rules of the Special Court 1994 appear to use similar language to rule 137 of the Rules of the Federal Court 1995 which state as follows:

“For the removal of doubts it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”

Rule 137 of the Rules of the Federal Court 1995 enables the Federal Court to review its decision in very exceptional circumstances, on very limited grounds or in the rarest of rare cases. The threshold is high and the power cannot be invoked to review a decision on its merits which includes the findings of fact or interpretation of law (see Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 6 CLJ 1 and Dato’ Sri Mohd Najib bin Hj Abdul Razak v Public Prosecutor [2023] 3 MLJ 40).

However, the exact purport and effect of rule 24 of the Rules of the Special Court 1994 and its relationship with rule 22 of the Rules of the Special Court remains unclear and no cases have tested the operation of these provisions at the time of writing. However, it is arguable that due to the appearance of similar language used for both rules, rule 24 of the Rules of the Special Court 1994 may operate in a similar fashion to that of rule 137 of the Rules of the Federal Court 1995 and ultimately, a decision of the Special Court may be reviewed in similar but very limited non-exhaustive circumstances such as:

1. Where there was a lack of quorum;
2. Where the applicant had been denied the right to have his appeal heard on merits by the appellate court;
3. Where the decision had been obtained by fraud or suppression of material evidence;
4. Where the court making the decision was not properly constituted, was illegal or was lacking jurisdiction, but the lack of jurisdiction is not confined to the standing of the quorum that rendered the impugned decision;
5. Where there was a clear infringement of the law;
6. Where an applicant under has not been heard by this court and yet through no fault of his, an order was inadvertently made as if he had been heard;
7. Where bias had been established; or
8. Where it is demonstrated that the integrity of its earlier decision had been critically undermined e.g. where the process had been corrupted and a wrong result might have been arrived at.