JUDGMENT

Mohd Saari Yusof J:

[1] By way of summons in chamber (encl 11), the defendants/applicants apply for the following:

1) Bahawa saman pemula dan affidavit sokongan plaintif terhadap defendandefendan dibuang di bawah A. 18 k. 19(1)(a), (b) dan (d) Kaedah-Kaedah Mahkamah Tinggi 1980 dan/atau di bawah bidang kuasa sedia ada Mahkamah atas sebab:

(a) ia tidak mendedahkan apa-apa kausa tindakan yang munasabah; dan/ atau

(b) ia adalah mengaibkan, remeh atau menyusahkan; dan/atau

(c) ia selainnya adalah suatu penyalahan proses Mahkamah.

2) (not applicable).

3) (not applicable).

4) Bahawa tindakan plaintif terhadap defendan-defendan dibatalkan;

5) Bahawa defendan-defendan mendapat kos permohonan ini.

Background

[2] At all material times, the plaintiff was Deputy PM and also a Minister of Finance.On 2 September 1998, plaintiff was served with a letter from PM saying that his appointment as Deputy PM and Minister of Finance was revoked with immediate effect (2 September at 5.30pm).

Observation

[3] Language of art. 43(5) is clear. A Minister holds office during the pleasure of Yang Dipertuan Agong, meaning a Minister may be dismissed at any time on advice of Prime Minister.What is the rationale for the right to dismiss at pleasure? In Mahan Singh V. Government Of Malaysia Suffian LP (as he then was) said:

as stated by Sproule J in Pillai's case government employment being for the good of the public, it must not continue when it is no longer for the public good; it is essential for the public good that the Crown should not be hampered in dismissing a servant whose continuance in office it deems detrimental to the best interests of the State and its good government, ...

[4] Further it is my observation, in the absence of expressed provision to the contrary, decision to revoke the appointment of a Minister under art. 43(5) is not justiciable.

[5] The above is not in issue.

[6] Issue for determination is whether revocation of appointment of plaintiff as Deputy Prime Minister and Minister of Finance was done in accordance with the requirement of art. 43(5) Federal Constitution.

[7] Dato' Zaitun submitted that by virtue of art. 43(5) and art. 40 (1A), the King must act on advice (see Merdeka University Bhd. V. Government Of Malaysia [1981] 1 MLRH 75, [1982] 2 MLJ 243; [1981] CLJ 191 ).

[8] On construction to be given to art. 74 Indian Constitution (similar to art. 40 Federal Constitution), my attention was drawn to the case of Samsher Singh v. State of Punjab [1974] 2192 AIRat p. 2228 para 148 where it states inter alia:

We are of the view that President means for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion, satisfaction or decision.

[9] To recapitulate, on the principle enunciated above, the King must act on advice. A fortiori, based on clear wording of art. 40 (1A), it is imperative that the king only acts on advice of PM.

[10] Further, it is submitted that with the conveying of Prime Minister's decision (keputusan) to the King coupled with the letter of revocation sent to plaintiff, the act of revocation was complete.Hence, the procedure adopted met the requirement of art. 43(5).

[10] En. Karpal concedes that art. 40(1A) applies to plaintiff's case, meaning the King must act on advice of PM.

[11] However, he argues that what is in dispute is about PM's letter sent to plaintiff.From the tone of the letter, it appears as if PM was dismissing the plaintiff, whereas PM was not the alter ego of the King.

Finding

[12] Common prudence dictates that as the King could only act on advice, PM must first formulate a decision (keputusan) to dismiss plaintiff.Next step is for PM to inform the King about his decision (keputusan). Thereafter, decision to be conveyed to the plaintiff.The question is who is responsible in informing the plaintiff about the revocation.

[13] Normally, the King would not personally in