Lawyers: Pahang’s loyalty to Agong condition for business permit vague, unconstitutional

Sultan Abdullah Ahmad Shah greets guests during a thanksgiving dinner held at a new mosque in Temerloh district in Pahang January 25, 2019. ― Bernama pic
Sultan Abdullah Ahmad Shah greets guests during a thanksgiving dinner held at a new mosque in Temerloh district in Pahang January 25, 2019. ― Bernama pic

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KUALA LUMPUR, April 24 — The Pahang government’s decision to require business owners to be loyal to both the Pahang sultan and Yang di-Pertuan Agong to obtain business licences is vague and arbitrary, and could also be against the Federal Constitution, lawyers have said.

Malay Mail spoke to several constitutional lawyers, who among others noted that imposing such a requirement of loyalty towards rulers is unnecessary and unreasonable.

On Friday, the Pahang mentri besar announced that local councils would now have to include the new requirement for those seeking business licences and permits, with failure to show loyalty resulting in the cancellation of the permits.

The new requirement comes just barely three months since the Pahang sultan became the country’s King.

How does loyalty relate to doing business?

Lawyer Lim Wei Jiet said any decision made by public authorities, including the rejection of business licences or permits, can be challenged in court via judicial review on grounds such as unreasonableness or irrationality.

“It is arguable that the requirement of loyalty to the Pahang sultan and Agong is unreasonable, irrational and is an irrelevant consideration which a public body should not take into account in the context of conducting businesses in the state,” he told Malay Mail when contacted.

Lim highlighted the need for business permit conditions to be linked to business operations.

“One of the reasons why it is unreasonable or irrational is because there is no nexus between running a business with loyalty to the monarch,” he said, comparing it with the example of requiring a food eatery to comply with health and cleanliness standards as public health is at stake.

Lim said the new requirement may also affect business owners’ right to livelihood if they are denied business licences due to the condition.

What is “loyalty” or “disloyalty”?

In explaining why the new requirement is unreasonable, Lim pointed out the vague nature of the term “disloyalty”.

“This requirement of ‘loyalty’ to the Pahang sultan and Agong is also so arbitrary and it is hard to define what amounts to ‘disloyalty’. Even the most oppressive of laws such as the Sedition Act allow room to criticise the royalty with the intention to show that the Ruler has been misled or mistaken.

“Therefore, because it is so arbitrary and sends a chilling effect on free speech, such requirement may offend the freedom of expression guaranteed under Article 10 of the Federal Constitution,” he said.

Lawyer Nizam Bashir said the Pahang state government’s directive would be unconstitutional as the vague nature of the proposed condition would go against Articles 5, 7 and 8 of the Federal Constitution.

“What is meant by respect and loyalty? Does pointing out errors in the acts or omissions concerning an executive function or statutory duties amount to disrespect or disloyalty?” he asked.

Citing the doctrine of vagueness, Nizam explained that a law which is vague would be unconstitutional.

“Simply put, a person’s liberty can only be deprived according to law that is clear,” he said.

Referring to Article 5 which he said substantially revolves around ensuring that everyone subjected to a criminal charge is entitled to the due process of law, Nizam said: “I can’t think of anything more fundamental than a person knowing the crime that he is said to be guilty of”.

“Let’s come back to the example of pointing errors in what the YDPA (Yang di-Pertuan Agong) does. Is that an act of disloyalty? We don’t know. So the so-called offence which enables a breach of the licensing requirement is vague. We don’t know where it starts and where it ends,” he said in highlighting the wide-ranging nature of such a condition as opposed to conditions that are narrower and more specific.

Citing Article 8 which deals with equality before the law, Nizam agreed that those denied a business licence without knowing how they had been disloyal would have suffered unequal treatment and would not have equal protection of the law as given to others.

“Yes, loyalty to King is important from a State perspective but so are the rights of citizens. And here I think citizens’ rights are on the chopping block given how wide the directive is,” he said, describing the new condition as akin to giving “blank cheques” to licencing authorities on the matter.

Bypassing Parliament

Lawyer Surendra Ananth highlighted the problem of what appeared to be Pahang’s intention of enacting a state law or amending existing state laws to provide for the new requirement, noting that it should instead be Parliament which make laws that limit free speech.

“This is a restriction of free speech, which only Parliament is entitled to legislate on. This is expressly provided for under Article 10(2)(a) of the Federal Constitution, where it says that only Parliament can make laws to restrict free speech. The states have no power to do that.

“We already have such a law to deal with contempt against the Rulers, that is the Sedition Act 1948. Although I disagree with the use of the Sedition Act, the point is that it is for Parliament to make such a law or for the federal government to deal with the issue using existing federal laws,” he told Malay Mail.

Nizam said the directive to impose the new requirement may go against Article 10 of the Federal Constitution if it amounts to either an express or implicit regulation of speech and expression, as only Parliament can make laws to do so.

“Licensing is expressly a local government matter. But what if the effect of the directive serves to regulate speech and expression as well? If it does, then it offends Article 10,” he said.

Nizam also highlighted that there are already existing laws in Malaysia to address any acts that aim to insult a ruler, or to bring a ruler into hatred or contempt, citing laws such as the Sedition Act and the Communications and Multimedia Act as examples.

“Consequently, the royal institution is already sufficiently protected from remarks aimed at inciting hatred and the like. For that reason, the additional measures presently being proposed by the State of Pahang seems unnecessary,” he said.

Can the new requirement be challenged?

Lim confirmed that the new condition for business licences in Pahang would remain valid as long as it is not challenged in court, saying that a court order would be required to nullify such a requirement.

When asked who could file such a court challenge, Lim confirmed it would arguably be only those who were denied a permit or licence because of the new requirement.

“Because you would need locus standi to file a case in Court. You must be affected by the decision,” he said, referring to the rule on legal standing.

“But the rule on locus standi has been relaxed in recent times. So, for example, if groups or associations representing businesses in Pahang file a case, they may actually overcome the locus standi test. The law is not that clear in this respect,” he said.

As for what could result from such a court challenge, Lim said the person who files a lawsuit to challenge the loyalty requirement could seek court orders directly related to him, such as to quash the Pahang government’s decision to reject the permit or licence application or to compel the state authorities to issue him with a permit or licence.

“But that person can also ask for a more broad-ranging relief — for example, a declaration that such requirement is unconstitutional and be struck down, which may force the Pahang Government to abandon such requirement in the future,” he said.

Nizam said the Pahang state government’s directive was unnecessary as it invites constitutional challenges, also suggesting a law instead to avoid having the monarchy being pulled into political matters.

“For that reason, as opposed to the proposed directive, it would be far better to enact laws aimed at protecting the Yang di-Pertuan Agong — as the ultimate guardian of the Constitution — as far as possible from involvement in politics,” he said.

Nizam said that having such a law would discourage those with administrative power and those in government from getting the rulers involved in political matters or pitting the royalty against the government and democratic system.

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