Back
2022 MarsdenLR 78
HIGH COURT MALAYA KUALA LUMPUR
SYED ISKANDAR SYED JAAFAR – Appellant
Versus
KERAJAAN MALAYSIA & ORS – Respondent
[Originating Summons No: WA-24-63-11-2020]
The High Court has discretion under s 84 of the CJA to refer constitutional questions to the Federal Court, but such referrals must not negate the right of appeal or assume original jurisdiction.
Headnote:(A) Courts of Judicature Act 1964 – Section 84 – Application for stay of Originating Summons to refer constitutional question to Federal Court regarding art 150(8) and (9) of the Federal Constitution – Question whether amendments infringe basic structure – The plaintiff posited that the referral is necessary due to uncertainty surrounding the doctrine of basic structure as established in conflicting Federal Court rulings. (Paras 4, 12, 14, 45)
(B)
The High Court has discretion under s 84 and is not obliged to refer questions to the Federal Court, as articulated in pertinent case law (Paras 32, 41).
(C)
This Court found that the effect of a reference would essentially resolve the case, thereby eliminating the right of appeal, which is contrary to the constitutional framework (Paras 46).
Facts of the case:
The plaintiff sought a determination on whether amendments to art 150 violate the constitution's basic structure, following existing conflicting jurisprudence on this matter.
Findings of Court:
The application to refer was dismissed as it would effectively preclude further proceedings and the right of appeal.
Issues
: Whether the amendments to art 150 infringe the Federal Constitution's basic structure, and the appropriateness of referring the question to the Federal Court.
Ratio Decidendi:
The court emphasized the discretionary nature of s 84, stressing that referral must not lead to the Federal Court exercising exclusive original jurisdiction not envisaged by the Constitution.
Result:
Application dismissed with costs.
[1] This is an application in encl 92, made under s 84 of the Courts of Judicature Act 1964 ("CJA").
[2] Prayer (2) of the application seeks an order to stay the proceedings in this Originating Summons ("OS") to enable this Court to transmit a question that has arisen as to the effect of the Constitution in the form of a special case to the Federal Court.
[3] Section 84 of the CJA provides:
Where in any proceedings in the High Court a question arises as to the effect of any provision of the Constitution the Judge hearing the proceedings may stay the same on such terms as may be just to await the decision of the question by the Federal Court.
[4] In the amended OS, the plaintiff, who is an advocate and solicitor, seeks this Court to determine two questions which are as follows:
(i) Whether on a true construction of arts 40 and 50 of the Federal Constitution, the Yang di-Pertuan Agong has an unfettered discretion not to declare an emergency despite [the] advice of the Prime Minister or the Federal Cabinet to the contrary.
(ii) Whether Act A514 which amended art 150 by adding cls (8) and (9) is violative of the basic structure of the Federal Constitution having regard to art 4(1) thereof.
[5] However, in his affidavit in encl 37 ("AIS-37"), and after referring to a decided authority, the plaintiff conceded that the Yang di-Pertuan Agong should act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet.
[6] In the circumstances of the case, in para 8 of AIS-37, the plaintiff asserted that Question (i) has become academic since "both parties are on common ground".
[7] In para 9 of AIS-37, the plaintiff affirmed that the only question to be deliberated and determined in the OS is Question (ii). It concerns art 150(8) and (9) of the Federal Constitution.
[8] The relevant clauses of art 150 of the Federal Constitution ("FC") are reproduced below:
(8) Notwithstanding anything in this Constitution:
(a) the satisfaction of the Yang di-Pertuan Agong mentioned in cl (1) and cl (2B) shall be final and conclusive and shall not be challenged or called in question in any Court on any ground; and no Court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of:
(i) a Proclamation under Clause (1) or of a declaration made in such Proclamation to the effect stated in Clause (1);
(ii) the continued operation of such Proclamation;
(iii) any ordinance promulgated under Clause (2B); or
(iv) the continuation in force of any such ordinance.
(9) For the purpose of this Article the Houses of Parliament shall be regarded as sitting only if the members of each House are respectively assembled together and carrying out the business of the House.
[9] The plaintiff also filed a notice of intention to use the affidavits, which he affirmed earlier in encls 2, 38 and 77.
The Plaintiff's Case
[10] The plaintiff's position is that Question (ii) ought to be determined by the Federal Court pursuant to s 84(1) of the CJA.
[11] Learned counsel for the plaintiff referred me to the judgment of the Court of Appeal in Wee Choo Keong v. Lee Chong Meng & Anor, [1998] 1 MLJ 434 CA . The Court of Appeal took cognisance that pursuant to s 84 of the CJA, a High Court Judge may, in his discretion, refer a question relating to the effect of any provision of the Constitution to the Federal Court by way of a special case. However, before deciding so, the Judge must be satisfied that the constitutional question sought to be referred to must have a direct bearing on the matter of dispute before him and that the decision of the Federal Court must have the effect of bringing the determination of the dispute before him to a speedy and economical end.
[12] The plaintiff's case on the application of s 84 of the CJA is mainly anchored on the uncertainty of the law as to whether the doctrine of basic structure applies in the co
