‘Terlajak perahu boleh diundur, terlajak kata ’ — Hafiz Hassan

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OCT 8 — The Pakatan Harapan (PH) presidential council contended that Yang Dipertua Negeri (TYT) of Melaka Tun Mohd Ali Rustam had erred in calling for the dissolution of the State Legislative Assembly (SLA).

In a statement after a council meeting, PH said the dissolution was based on the erroneous advice given by a chief minister who had lost majority support of the state assemblymen, adding that TYT should have instead studied and abided by the state constitution.

Perhaps inspired by its presidential council’s statement, Melaka PH said it was looking at taking legal action on the dissolution of the SLA.

“Melaka PH has no plans to meet the Agong. Our focus is on taking the dissolution of the Melaka state government to the courts to discuss the ramifications and dispute the process of dissolution pursuant to Article 19(2) of the state constitution,” its chief Adly Zahari said in a Facebook post yesterday.

File picture shows Tun Mohd Ali Rustam being appointed as the seventh Yang Dipertua Negeri of Melaka. ― Bernama pic
File picture shows Tun Mohd Ali Rustam being appointed as the seventh Yang Dipertua Negeri of Melaka. ― Bernama pic

Now, having called for the dissolution of the SLA, can the TYT’s decision be reviewed by the court?

Not all cases brought before courts are reviewable. A case must first be justiciable. This concerns the limits over which a court can exercise its judicial authority.

The term “justiciability” derives from the common law and reflects a series of self-imposed judicial restraints. These are founded on the view that there has to be an “appropriate constitutional balance between the respective roles of the executive and the judiciary.”

Thus, a matter may be deemed “non-justiciable” by a court which feels that its resolution either is beyond the competence of the court or would involve stepping outside its appropriate constitutional role. (Chris Finn, “The Concept of ‘Justiciability’ in Administrative Law”, 2007):

When a matter is non-justiciable, it signifies that first, the matter is not capable of or susceptible to judicial review and second, there is no jurisdiction in the court to hear the issue or to grant relief under the law.

Lord Roskill, in the English House of Lords case of Council of Civil Service Unions & Ors v Minister for the Civil Service [1985] explains non-justiciability as follow:

“Generally, an issue is regarded as non-justiciable where a court of law or the court process is ill-suited to decide the issue by reason of lack of competence, unsuitability of the legal method, lack of satisfactory criteria for a judicial determination of the dispute at hand, or where constitutional, common or statutory laws expressly or contextually insulate it from judicial determination.”

The most prominent amongst non-justiciable issues are those which are known in the USA as “political questions” or matters of “high policy”. Federal Court judge Zawawi Salleh in the case of Chin Chee Kow [2019] alluded to those matters in the following words:

“There are certain areas which the court is reluctant to delve into. These include the power of the state to enter into treaties and conduct of foreign policy, the defence of the realm and the control of the armed forces, the prerogative of mercy, the dissolution of parliament and the appointment of Ministers. Such powers are governed by broader policy considerations which are more appropriately entrusted to the political branches of government, and which are unsuited to be examined by the courts.” (Emphasis added)

The Singapore High Court too has made a reference to similar matters that are immune from judicial review. In the case of Lee Hsien Loong v Review Publishing Co Ltd & Anor and another suit [2007], it said:

“Executive decisions that are immune from judicial review are those involving matters of ‘high policy’. This includes such matters as dissolving parliament, the conduct of foreign affairs, the making of treaties, matters pertaining to war, the deployment of the armed forces and issues pertaining to national defence. These are what the American courts call ‘political questions’. (Emphasis added)

Further, if a matter is non-justiciable, the decision-making process leading to the matter should also be non-justiciable. Thus, in the case of Juraimi bin Husin v Pardons Board, State Of Pahang & Ors [2002] the Federal Court held that where the prerogative of mercy was non-justiciable, the decision-making process was also non-justiciable.

Any attempt to make the decision-making process justiciable would indirectly make the decision itself justiciable. Consequently, the decision-making process of the decision by the Sultan of Pahang under Article 15 of the Laws of the Constitution of Pahang, read together with Article 42 of the Federal Constitution, was non-justiciable.

Accordingly, the Court of Appeal in the recent case Tan Sri Musa bin Hj Aman & Ors v Tun Datuk Seri Hj Panglima Hj Juhar Hj Mahiruddin & Ors [2021] held itself bound by the Federal Court decision in Juraimi to rule that the dissolution of the Sabah SLA and the decision-making process leading up to the proclamation and dissolution are both non-justiciable.

This despite the Court of Appeal being aware that leave to appeal to the Federal Court was granted by the latter on questions of law which clearly show that the interpretation of Articles 7(1), 10(2) and 10(4) of the Sabah Constitution is justiciable.

On the core question of whether the proclamation and dissolution of the Sabah SLA was justiciable, the Court of Appeal affirmative said it was not.

The decision to dissolve the Melaka SLA is therefore past recalling. As the Malay proverb goes: terlajak perahu boleh diundur, terlajak kata buruk padahnya.

This does not mean that the effect of the dissolution of the SLA will be buruk (bad). But pray hard.

Or pray that the prime minister advises the Yang Di-Pertuan Agong to proclaim a statewide emergency in Melaka, like in Sarawak.

*This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.

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