OCTOBER 6 — The following facts appeared in the judgment of High Court Judge Rosnaini Saub in the case of YTM Dato' Othman Bin Ismail v Dato' Mubarak Bin Dohak & Ors [2012].
The Plaintiff averred that after the demise of Almarhum Dato’ Klana Mohd Kassim Bin Dato’ Andika Hj Abdul Rashid — that is, the 9th Undang Luak Sungei Ujong — on October 23, 1983 and after a lapse of almost 10 years, the Negeri Sembilan State Government on December 29, 1993 announced and declared that the First Defendant was his successor.
The First Defendant therefore from that day onwards became the 10th Undang Sungei Ujong.
However, it was the Plaintiff’s case that the election of the First Defendant as Undang Sungei Ujong was done in contravention of the Adat laws and the provision of the State Constitution, particularly Articles 14(1) and 32.
The Plaintiff averred that he was the rightful successor to the 9th Undang Sungei Ujong as his candidature as the 10th Undang Sungei Ujong was agreed and consented to by “waris Perut Hilir” and endorsed by “Lembaga Tua Waris” on February 27, 1984.
It was further averred by the Plaintiff that the First Defendant was actually appointed on behest of the former Dato’ Shahbandar of Sungei Ujong who himself was dismissed from his position on October 6, 1994.
In the year 2002, however, the Secretary of the Second Defendant – that is, the Dewan Keadilan dan Undang (DKU) — confirmed the status of the First Defendant as the Undang Luak Sungei Ujong.
The dispute apparently did not end there because according to the Plaintiff, “waris Sungei Ujong” in an earlier gathering or “kerapatan” in the year 2001 had already unanimously decided to dismiss the First Defendant as Undang Sungei Ujong and agreed to install the Plaintiff to succeed him.
The Plaintiff further averred that he was then subsequently installed as the new 11th Undang Luak Sungei Ujong to replace the First Defendant and the installation ceremony was held on June 9, 2009, in accordance with the Adat laws and Articles 14(1) and 32 of the State Constitution.
In a twist of event, the Plaintiff’s installation and election as the 11th Undang Sungei Ujong did not receive recognition from either the State Government or the DKU. The Plaintiff also averred that the Third Defendant, as the Menteri Besar had failed to take the appropriate action in accordance with the State Constitution to solve the problem.
Hence, the filing of the action by the Plaintiff, seeking for declarations that:
(a) the office of Undang Sungei Ujong held by the First Defendant was null and void; and
(b) the Plaintiff was the rightful and lawful Undang Sungei Ujong and be forthwith accepted as such by the Negeri Sembilan State Government and the DKU.
The Defendants applied to strike out the Plaintiff’s claim on the ground, inter alia, that the High Court had no jurisdiction to hear and adjudicate the Plaintiff's claim.
In her judgment, the learned judge said as follows:
“[I]t is obvious and abundantly clear that the pith and substance of this case revolves around the issue of election and appointment of an Undang. Article 16(1) of the State Constitution provides for the establishment of the [DKU] or The Council of the Yang di-Pertuan Besar and the Ruling Chiefs.
“It is clear to me that Article 16(1) of the State Constitution authorizes and therefore confers jurisdiction on the Dewan to give advice on any matter that relates to the Adat or Malay Custom of Negeri Sembilan and this includes the question of election or succession or removal of any of the Ruling Chiefs or Undang referred to in Article 14.
“The Ruling Chiefs or the Undangs of the territories, including that of Sungei Ujong are appointed or elected in accordance with the custom of their respective “luak” — see Article 14(1) of the State Constitution.
“In our present case, the Plaintiff is essentially disputing the status or position of the First Defendant as Undang Sungei Ujong and claiming that he is the lawful Undang, not the First Defendant.
“I am of the opinion that Article 16 is obviously applicable here in that such a dispute — that is, the one involving the appointment or election of an Undang — should be referred to the [DKU] and not this court.”
The learned judge went on to say as follows:
“The establishment and function of the [DKU] in dealing with matters relating to Adat or Malay Custom is entrenched in the provisions of Article 71 of the Federal Constitution. Article 71(1) read together with Article 71(2) of the Federal Constitution gives the DKU the exclusive jurisdiction to determine any dispute relating to the issue of election or succession of any of the Ruling Chiefs. The [DKU] is far more suitable for discharging that task than the civil court.”
The learned judge then referred to the case of Dato' Menteri Othman Bin Baginda & Anor v Dato Ombi Syed AIwi Bin Syed Idrus [1981] where the Federal Court, by a majority decision (4:1), held that such matters or issues relating to the appointment of Undangs are best left to the DKU to deal with and to give the appropriate advice on the matter.
In that case, Federal Court Judge Salleh Abas (as he then was) explained the expression ‘to advise on’ appearing in the then Article 16 of the State Constitution as follows:
“The expression ‘to advise on’ in my judgment is not merely confined to the ascertainment and statement of customary law in [an] abstract and generalized way like a statute or an enactment.
“[T]he expression [is not] restricted to mean only ‘to give an opinion'’ .... The advice so expressed by the [DKU], irrespective of the language used by the clerk of the [DKU] to record it, whether ‘giving its blessing or approval’ or some other words, clearly indicates the thinking and view of the [DKU] and such opinion, since it comes from the highest and august body should be worthy of respect and obedience. It should not be ignored.”
The learned High Court judge accordingly ruled that the Court had no jurisdiction to hear and determine the Plaintiff’s claim. In the circumstances, the learned judge allowed the Defendants’ application to strike out the Plaintiff’s claim with costs.
The First Defendant was Dato’ Mubarak Bin Dohak whose reign as Undang Sungei Ujong was “blessed” and “approved” by the DKU.
Yes, Mubarak was the rightful and lawful Undang Sungei Ujong not merely on “advice” of the DKU. He was blessed and approved as such.
So, when Mubarak was dismissed as Undang Sungei Ujong in accordance with the customs of the Luak having the customary authority to choose, appoint and dismiss an Undang, he should respectfully accept and obey — words used by Federal Court Judge Salleh Abas — the decision.
Shouldn’t it be that he who reigns by advice abdicates by advice?
Padma Zachariah
