Archive for the ‘Institution of Monarchy’ Category

Restoring judicial power

Friday, July 28th, 2017
Legal balance and harmony is maintained in line with the doctrine of separation of powers because legislative power is vested in Parliament, while executive power is vested in the Yang di-Pertuan Agong acting upon advice. FILE PIC

WHEN our Federal Constitution came into force on Merdeka Day, Article 121 stated: “The judicial power of the Federation shall be vested in a Supreme Court and such inferior courts as may be provided by federal law.”

Legal balance and harmony was maintained in line with the doctrine of separation of powers because legislative power is vested in Parliament (Article 44), while executive power is vested in the Yang di-Pertuan Agong acting upon advice (Article 39).

The objective of this important constitutional doctrine (originally attributed to French political philosopher de Montesquieu) is that no single arm (organ) of the government shall completely dominate the other. However, absolute separation of powers does not exist here because some of our members of parliament are also, at the same time, members of the administration (in the executive branch of the government).

Subsequent events in our constitutional history saw an erosion of this judicial power. This is evident upon our reading of Article 121 as it stands today, where the important words “judicial power… shall be vested” are now painfully missing. In plain language, the three arms or organs of our government are no longer at par.

Members of the legal fraternity and the judiciary were recently reminded of this segment of our legal history when the Federal Court handed down its remarkable decision in a land acquisition case known as “Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat” on April 20. The facts of the case are summarised below.

The appellant company owned a piece of land in Hulu Langat, Selangor. In January 1997, the company commenced construction for its industrial project known as “Kajang 181 Park”. Part of the land was then acquired under the Land Acquisition Act 1960 (Act 486) for the purpose of constructing the Kajang-Seremban Highway. The appellant was in due course awarded compensation totaling RM20,862,281.75 — representing the sum of RM17,627,400.00 (the value of the land acquired) and RM3,234,881.75 (compensation for the loss suffered from the termination of the project). Unhappy with the amount, the appellant referred the case to the High Court.

At the High Court, the appellant submitted that the compensation awarded was inadequate because the Land Administrator (respondent) failed to consider the appellant’s “other claims” — namely, loss of profits and the costs and expenses arising out of the termination of its commercial project. The appellant submitted that he should be compensated for loss of profits in respect of the sale of the 57 units in the project, which had been concluded when the acquisition took place.

After hearing the submission of both parties, the High Court held that the appellant was also entitled to receive an additional compensation of RM1.16 million “for severance and injurious affection”, but its other claims for compensation were dismissed. Aggrieved by this decision, the appellant appealed to the Court of Appeal but the appeal was dismissed. The appellant then sought leave to appeal to the Federal Court. Six questions of law were framed for the decision of the Federal Court.

For the purpose of this short commentary on the issue of judicial power, focus is made only on question No. 3, which concerns the constitutional validity of Section 40D of Act 486.

According to Tan Sri Zainun Ali (the Federal Court judge who delivered the 87-page judgment of the court), the issue was whether Section 40D “contravenes Article 121(1) of the Federal Constitution, which declares that judicial power to decide a dispute brought before the courts is vested in the courts” (paragraph 24).

Explaining the history of Act 486, Zainun said that originally (before 1984), the duty of assessors (under Section 42 of the act) is only to assist the judge in determining the amount of compensation, while the power to determine it remains vested in the judge. When Act A575 came into force (on Jan 20, 1984), Sections 40-42 of Act 486 were deleted, thus, completely removing the role of the assessors. The role of the assessors was, however, restored by Act A999, which came into force on March 1, 1998.

She added that when the revised Section 40D came into force in 1988, a “sea change” took place because the assessors are now empowered to decide on the amount of compensation, their decision becoming final and non-appealable. Their original role (merely to assist the judge) has been transformed, as they have become “fact finders and adjudicators”, effectively usurping the judicial power of the court.


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Hardwired for global hegemony

Saturday, July 8th, 2017

American democracy has become subverted by the rise of many hegemonic groups acting behind the scenes.

FOURTH of July was the 241st anniversary of the American Declaration of Independence. On that historic day in 1776, 13 British colonies in North America cut their links with their oppressor and proclaimed themselves to be the independent, sovereign United States of America.

The Preamble to the Declaration of Independence contains some of the most stirring words ever penned in a political or legal document: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The eloquence of this passage distils the moral idealism of the forefathers of America’s independence and their vision and aspiration for the then new nation.

Indeed, in the decades that followed, the Declaration inspired many other similar documents around the world, including the Bill of Rights in the US Constitution. Abraham Lincoln referred to the Declaration in his quest to abolish slavery in the US.

Till today, students of public law around the world look with admiration to the American Constitution’s safeguards for liberty, its protection against state despotism and its vibrant provisions for check and balance of power.

Sadly, however, a wide chasm between theory and reality is discernible. Even in its pioneering years the “land of liberty” violated its lofty ideals.

The US expanded across North America by slaughtering the Native American population. “How the West was won” is a story penned with the blood of indigenous people.

The US wrested Arizona, California, Nevada, New Mexico, part of Colorado and Utah from Mexico. Though professing anti-colonialism, it acquired a few colonies abroad.

Friends of America note with sadness that after World War II, the use of brute military force and “American exceptionalism” have become very pronounced.

In 2015, the US spent US$598.5bil (RM2.6 trillion) on defence, even though it is not threatened by any enemies. It maintains 800 military bases in more than 70 countries around the world.

It is the chief manufacturer and seller of weapons of mass destruction and often uses proxies to sell murderous weapons to both warring sides.

A nation born in liberty has metamorphosed into a nation with an insatiable addiction to war and the ethos of a garrison state. From the jungles of Vietnam to the deserts of Mesopotamia, America remains in constant war to pursue its hegemonic and strategic interests.

William Blum, a historian and US foreign policy critic, has calculated that since World War II the US has nuked, bombed or been militarily involved in 31 countries and has directly or indirectly killed or maimed between 15 and 20 million people, 90% of whom were innocent civilians. Pentagon records their extermination as “collateral damage”.

Nations in Asia that have suffered devastation at American hands are Afghanistan (1998 to the present), Pakistan (2003, 2006 to the present), Japan (1945), Cambodia (1969-70), Vietnam (1961-73), Laos (1964-73), China (1945-6), Korea (1950-53) and Indonesia (1958).

In the Middle East, victims of America’s “deadly export of democracy” are Iraq (1991 to the present), Iran (1987 and 2003), Kuwait (1991), Lebanon (1983-84), Syria (1983-84, 2014 to the present), Palestine (2010) and Yemen (2003, 2009, 2011 to the present).

In Africa, the US has intervened militarily in Libya (1986, 2011, 2015 to the present), Congo (1964), Sudan (1998) and Somalia (1993, 2001-8 and 2010).

In Latin America, the US has imposed its military will on Cuba (1959-61), El Salvador (1980s), Guatemala (1954, 60, 67-69), Grenada (1983), Nicaragua (1980s), Peru (1965) and Panama (1989).

Europe has not been spared. Bosnia in 1994 and 1995 and Yugoslavia in 1999 were mercilessly bombed.

What is notable is that most of the targets are people of colour, those of the Third World or Muslims. It is not just a coincidence that all the nations being bombed by the USA today happen to be Muslim.

In addition to direct military attacks, the US wages proxy wars around the world. In Iran (1953), Guatemala (1954), Congo (1960), South Vietnam (1963), Brazil (1964), Dominican Republic (1965), Chile (1973), Egypt (2013) and Ukraine (2014) the US armed rebels and hired mercenaries to subvert and overthrow governments that refused to tow its line.

Contrary to what Americans believe, the United States is one of the greatest destabilising forces in the world today. It is also the chief diplomatic, military and financial backer of the seven-decade-old genocide in Palestine.

To assert its impunity and sense of exceptionalism it has done such outrageous things as shooting down an Iranian civilian plane in 1988 (when a US Navy ship reportedly mistook the Airbus A300 for a much smaller and faster F-14 fighter jet), killing all 290 on board. In 1999, it bombed the embassy of China in Belgrade. US officials later claimed it was an error.

Ever since 9/11, it runs offshore torture camps. It arms and finances terrorist groups with a view to destabilising governments it does not like.

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Vital to streamline judicial system

Saturday, July 8th, 2017
(STOCK PHOTO)For more than 50 years, the Malaysian legal system has had to deal and grapple with the ongoing and seemingly endless conflict of judicial authority between the civil and syariah courts.

A SOCIETY cannot afford to have an administration of justice that is in disarray. While legal pluralism may be celebrated, the same treatment may not be accorded to decentralised judicial pluralism because of the inherent incapability of administering justice effectively.

This is indeed the case in Malaysia, where a common law tradition and civil justice system seem to be at odds with the strong element of religion in the constitution.

For more than 50 years, the Malaysian legal system has had to deal and grapple with the ongoing and seemingly endless conflict of judicial authority between the civil and syariah courts

The existence of dual and parallel judicial systems with mutually exclusive jurisdiction in society is not easy for it essentially creates a crisis of authority.

Therefore, there is a need for a minimum commitment to legal centralism by having a streamlined judicial system primarily as a means of securing a functional place for judicial authority that can provide final, timely and comprehensive determination of legal disputes

This presents a two-fold challenge — ideological and institutional — both of which impede the important work of having a reliable and effective administration of justice.

Ideologically, while there has been a discussion about certain differences in the underlying values and framework of the civil and religious systems of laws, there is nothing inherently problematic from an Islamic point of view in accepting that civil courts are also syariah courts

Courts are basically created to administer justice and enforce laws. Although there are bound to be substantive differences between certain aspects and elements of Islamic law and civil law, this substantive issue is a matter that is primarily for the legislature to resolve and not the court.

The plausibility of having a streamlined judicial system is jurisprudentially tenable by relying on the legal positivism school of thought. Legal positivists maintain that the validity of law derives from its source.

Therefore, ordinary courts can administer any law passed by the legislative assembly, regardless of its pith and substance, which may be religious in nature. Any disagreement on the scope, propriety and applicability of highly contentious norms that may have strong religious elements has to be sorted out by Parliament.

On this score, Islamic law will be administered and treated equally in comparison to any other branch of law; tort, contract law, criminal law, defamation law, etc.

The equal treatment here refers to the ideal situation where all laws are administered by a single judicial authority within a broad single judicial framework. As such, there will be no issue about court jurisdiction to adjudicate a legal dispute.

Institutionally, the dual and parallel judicial systems are purportedly designed to serve the interests of both Muslims and non-Muslims. It was thought that the arrangement would be capable of safeguarding non-Muslims from being subjected to Islamic laws while at the same time giving space for the Muslim community to practice their personal laws.

The current arrangement practically means there is no single judicial authority that would have jurisdiction over all subjects. It is an intricate challenge to resolve a dispute when there are two bodies claiming authority over the same matter

The issue of a dual judicial system with parallel jurisdiction is an institutional problem and must be addressed structurally. It is also a constitutional problem that cannot be completely addressed with piecemeal solutions using various canons of construction or technical legal interpretation of constitutional provisions, for this would not solve the core issue of conflicting authority.

Courts are established to adjudicate legal disputes, and this judicial role is a primarily norm-applying function. Therefore, for the sake of finality, consistency and predictability, courts in Malaysia should be streamlined into one system and vested with jurisdiction over all members of society.

This suggestion acknowledges that there can be different kinds and levels of courts as the state deems fit to administer justice.

The syariah principle of particularisation of justice (takhsis al-qada) also permits the setting up of specialised courts. This multiplicity should not in any way be mistakenly understood to imply the existence of multiple judicial authorities, for there is actually only one judicial authority and so is justice, which is essentially monolithic and indivisible.

It does not follow, however, that certain segments of society cannot be exempted from the application of certain specific laws. The inapplicability of Islamic laws to non-Muslims is an accepted syariah position and can still be retained.

Instead of protecting non-Muslims by creating two different courts — civil and syariah — non-Muslims may be statutorily exempted from certain areas of law. This is in line with the doctrine of reasonable classification that permits differentiation based on an intelligible differentia.

For example, an act of Parliament may criminalise adultery and provide a punishment for such an offence that is enforceable among Muslims only. In this way, the clash of judicial authority would not arise because there is only one authority that exists to administer different kinds of laws on the subject.

Ultimately, we have to get out of this binary dichotomy of civil and syariah courts in the cause of a better Malaysia. Maintaining such a dichotomy will not serve any good purpose because a decentralised judicial system is an injustice in itself.


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Restoring judicial clout

Thursday, June 8th, 2017

IN a country with a supreme Constitution and a chapter on fundamental liberties, it is the duty of the superior courts to preserve, protect and defend the basic law against any institution or person that lays rash hands upon the ark of the Constitution. The courts must enforce fundamental rights and the federal-state division of powers.

This multi-faceted activism was given a devastating blow in 1988 when five superior court judges were suspended and three, including the Lord President, were dismissed in disregard of constitutional standards. A nail was hammered in the judicial coffin by amending Article 121(1) to take the “judicial power” away from the courts and to instruct the judiciary to perform only such functions as were assigned to it by federal law.

The ignoble purpose of the amended Article 121(1) was to abolish the doctrine laid down in Dato’ Yap Peng v PP (1987) that the “judicial power” of the Federation must reside exclusively in the judiciary and cannot be usurped by or assigned to any other organ. The amendment was meant to overthrow the celebrated doctrine of hundreds of years that even if there is no statutory provision for appeal, the courts have an inherent, prerogative, reserve, supervisory power to review and correct any illegality.

As a result of the amendment, the courts became mere implementers of the wishes of the executive as expressed in laws legitimated by an executive-dominated Parliament.

Despite this debilitating constitutional provision, some judges continued courageously to censure the executive whenever it exceeded or abused its powers. Others spoke boldly but acted timidly.

For example in PP v Kok Wah Kuan (2008), a Federal Court majority mocked the doctrine of separation of powers as having no legal basis in our Constitution and held that the power of the courts is limited to whatever Parliament bequeaths.

Fortunately, there was a bold dissent from Richard Malanjum, our Sabah and Sarawak Chief Judge, who insisted that separation of powers and judicial independence are firm pillars of our constitutional edifice. He rejected the view that “our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law”.

Justice Malanjum was eminently correct on both scores. A Constitution is not mere words written on paper.

It is animated by inarticulate values and ideals. It has a spirit and a soul. Separation of powers (of the check and balance variety) and judicial independence are definitely the heart and soul of our constitutional edifice.

As to the amended Article 121(1) provision that the powers of judges are solely derived from federal law, it must be noted that above and beyond federal law is the supreme Constitution. And there are other streams from which our judges must drink. Article 160(2) defines “law” by stating that law includes written law (which in turn includes state law), common law and custom or usage.

In April, 29 years after the defacement of Article 121(1), and nine years after the disastrous Kok Wah Kuan decision, a strong Bench of the Federal Court in Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat has restored some of the old lustre of Article 121. Tan Sri Zulkefli Ahmad Makinudin, Tan Sri Hasan Lah, Tan Sri Zainun Ali, Tan Sri Abu Samah Nordin and Tan Sri Zaharah Ibrahim dealt with three major issues.

First, the composition of the tribunal under the Land Acquisition Act 1960. Section 40D of the Act transfers the power of determining adequacy of compensation to a tribunal consisting of a High Court judge and two outside assessors.

The Federal Court held that it was violation of the Constitution to appoint outsiders to sit on the High Court. Further, it was unconstitutional to reduce the High Court judge to a rubber stamp. The judge and judge alone must decide on the amount of adequate compensation.

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Native Court system must be independent, says Malanjum

Wednesday, May 31st, 2017

Kota Kinabalu: Chief Justice of Sabah and Sarawak, Tan Sri Richard Malanjum, has expressed hope that the Native Court system will be out of the hands of state executives.

He stressed that it is important for the institution to be independent, particularly when it concerns the appointment of community leaders.

“I’d like to see the day will come,” he said in his keynote address at the Majlis Jaksa-Jaksa Pendamai (Majaps) and Sabah Law Association (SLA) seminar themed “Justice and Rights – The Way Forward”, here, Monday.

He said as an independent body, no state executives or politicians can meddle in its affairs.

“YBs (Yang Berhormat) should not be involved in who should become a (native) chief (and) Ministers should not be involved in who should be a district chief. This is important,” he said.

He lamented, however, that this has not been the practice in some cases, causing blurred lines between the service to the “adat” and political interest.

“With all due respect, some of the native chiefs are more politicians than (being) native chiefs. And if you’re not on the same line with them politically, you’re dead meat. That’s not fair. So I think we need to change this,” he said.

On this note, Malajum reiterated his call for the Native Court in Sabah and Sarawak to be elevated on par with the civil and Syariah courts.

“If you look at the constitution, what we have now is the civil and Syariah court system of justice in Malaysia.

There should be a third system, which is the indigenous court system, which has the same standing as the civil and Syariah laws. We want the system to be in the Constitution to cater far native laws. At the moment, the Native Court is controlled by the executives,” he said.

Malanjum has been a strong proponent of the third system, having on various occasions spoken up on the need to set it by virtue of the three to four million indigenous population in both East Malaysian states who are still practising their “adat” and customs.

He was once reported as saying that the Native Court was still relevant today to ensure as custodians, the survival of the customary laws handed down from generations.

The recognition of the Native Court as the third justice system, he said, will effectively release it from the control of the executive and politicians alike.

“With the third system, we will have a commission to appoint native chiefs. It will be independent and respected.

That’s how it should be,” he said.

He noted that the third system was the grand plan of long serving former Attorney General of Malaysia, Tan Sri Ghani Patail, and effort towards making it a reality had reached 80 per cent.

He urged Ghani and State Attorney General Datuk Mariati Robert to continue picking up the matter while making the same call on Majaps and the SLA to help pushing it.

Speaking in jest, Malanjum said the Government might make a pledge to make it happen in view of the general election mood.

He noted that Malaysia can learn from Papua New Guinea that has successfully established its third system in the judiciary.

Meanwhile, Ghani, when met, said there is actually already a third system as the Native Court is recognised by the Constitution.

“It’s already there. It’s just that you don’t have the proper system and structure yet.

The Native Court needs to formalise this first. It has to fortify the system and that’s what we were doing as what Tan Sri Richard has said about the 80 per cent. I think they’re still doing it,” he said.

by Leonard Alaza.

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Long Live His Majesty

Monday, April 24th, 2017

Sultan Muhammad V’s reign officially begins today with his coronation as the 15th Yang di-Pertuan Agong.

Star Special,
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Unique to the cradle of Malay culture.

Monday, April 24th, 2017

The unique Kelantan sultanate has been in existence since the early 13th century. It has remained strong despite colonisation by several powerful empires in the region over the years.

The sultanate has prevailed because of its strong Malay traditions and Islamic approach.

Kelantan is regarded as the “cradle of Malay culture” and has been ruled by 29 Sultans up to the present day.

The Kelantan sultanate had been led by Sultans and Rajas of the Malay Kingdom of the Jambi Dynasty (between the 13th and 16th centuries), Champa Dynasty (between the 16th and 18th centuries) and Pattani Dynasty (since the 18th century).

The present genealogy of the Kelantan sultanate can be traced back to the descendants of Long Yunus Long Sulaiman, an aristocratic warlord of Pattani origin, who ruled Kelantan circa 1765-1795.

Based on Kelantan’s palace records, the state faced a crisis after the death of Long Yunus. There was a power struggle between Long Muhammad (Long Yunus’ son) and his brother-in-law Tengku Muhamad on who was the rightful heir to the throne.

The records showed that the dispute was a result of the failure of Long Yunus to name a successor. He could not decide who among his seven sons should replace him.

Long Yunus’s son-in-law, Tengku Muhamad, was appointed as acting Sultan for 100 days to fulfil Long Yunus’ wish to be entombed in a royal mausoleum and to enable the state government to function.

However, after the 100 days, Tengku Muhamad refused to hand over the throne to a successor, leading to a conflict between him and Long Muhammad. The feud ended in Long Muhammad’s favour, enabling him to ascend the throne at the start of the 19th century.

In the early annals of recorded history, Kelantan was first ruled by a woman called Cik Siti Wan Kembang, who established a kingdom at Gunung Chinta Wangsa, Ulu Kelantan.

Believed to be unmarried, she was said to have reared two mousedeer as pets. Later, the image of a mousedeer was imprinted on gold coins that were used as legal tender in the state. The same image later became part of the coat of arms of the present Kelantan government.

During the reign of Cik Siti, Raja Sakti ruled another kingdom called Jembal. After the king died, his son Raja Loyor ascended the throne in 1649 and had two children, including Puteri Saadong.

Cik Siti was on good terms with Raja Loyor, especially after she adopted Puteri Saadong as her heir apparent. After that, there were power struggles through the century until Long Yunus’s son Long Muhammad (Sultan Muhammad I) became the first Sultan of Kelantan.

Sultan Muhammad I was accepted by the Siamese as ruler of a separate tributary, 12 years later.

In 1909, a treaty between the Siamese and the English was signed and Siamese rulers gave up their claims over a number of territories, including Perlis, Kedah, Terengganu and Kelantan. In the end, Kelantan became one of the states in Malaya, with a British adviser who was also its administrator.

During World War II, the Japanese invaded Kelantan on Dec 8, 1941, and fully occupied the state within two weeks. They transferred Kelantan to Thai control in 1943.

The state was freed from Japanese occupation on Sept 8, 1945, and became a state of the Federation of Malaya on Feb 1, 1948. It joined the other states of the peninsula to form the Federation of Malaya on Aug 31, 1957, and became a state of Malaysia on Sept 16, 1963.

Incapacitated by illness, Sultan Ismail Petra Ibni Almarhum Sultan Yahya Petra was replaced by his eldest son and crown prince Tengku Muhammad Faris Petra following a proclamation by the State Succession Council in September 2010.

The new Sultan is officially addressed as Sultan Muhammad V because the name had been used by his ancestors.

On Dec 13 last year, the Kelantan Ruler left Kota Baru for the federal capital to ascend the throne as the 15th Yang di-Pertuan Agong.

Sultan Muhammad V was elected as the Yang di-Pertuan Agong by the Conference of Rulers at its 243rd meeting in October. The ceremonial send-off of the Sultan from Istana Negeri, Kubang Kerian, was steeped in tradition.

His mother, Tengku Anis Tengku Abdul Hamid, the Regent and Tengku Mahkota of Kelantan, Tengku Dr Muhammad Faiz Petra, and Mentri Besar Datuk Ahmad Yakob were among the dignitaries who accompanied Sultan Muhammad V to the Sultan Ismail Petra Airport in Pengkalan Chepa to see him off.

Thousands of people of various races, waving the Kelantan flag and the Jalur Gemilang, lined the 14km route from Istana Negeri to the airport.

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All set for installation of 15th King.

Monday, April 24th, 2017

KUALA LUMPUR: Today, Malaysians will witness the installation of the country’s Supreme Head, the Sultan of Kelantan Sultan Muhammad V, who replaces Tuanku Abdul Halim Mu’adzam Shah as the 15th Yang di-Pertuan Agong.

This is the second time the installation ceremony of the Yang di-Pertuan Agong will take place at the Balairong Seri of Istana Negara in Jalan Tuanku Abdul Halim, with preparations in full gear for today’s event.

The ceremony, full of customs and traditions, will mark the official installation of Sultan Muhammad V as the 15th Yang di-Pertuan Agong.

According to the Penolong Datuk Paduka Maharaja Lela, Ceremonial Division, at the Istana Negara, Azuan Effendy Zairakithnaini, the coronation date coincided with an important day in the Islamic calendar, the Israk and Mikraj (night journey and ascension of Prophet Muhammad), and it was chosen by His Majesty based on the advice from ulama and mufti.

The ceremony, which is only expected to be witnessed once in five years, will begin at 9.30am.

Sultan Muhammad V took his oath of office and signed the declaration on Dec 13 last year, which strengthened and gave legitimacy to the position of the Yang di-Pertuan Agong as head of state.

His Majesty will be the second Sultan of Kelantan to reign as the Yang di-Pertuan Agong.

The first was His Majesty’s grandfather Sultan Yahya Petra Sultan Ibrahim, who was the sixth Yang di-Pertuan Agong and reigned from 1975 to 1979.

Sultan Muhammad V was born Tengku Muhammad Faris Petra on Oct 6, 1969 in Kota Baru, to Sultan Ismail Petra and Tengku Anis Tengku Abdul Hamid.

His Majesty used the name Sultan Muhammad V after he was installed as the 29th Sultan of Kelantan in 2010.

According to Azuan Effendy, the installation ceremony will maintain the core elements of the traditions that have been in practice since the coronation of the first Yang di-Pertuan Agong Tuanku Abdul Rahman of Negri Sembilan.

Today’s event will start with the arrival of Sultan Muhammad V at the royal dais to take the Royal Salute from the First Battalion of the Royal Malay Regiment.

Among the key elements of the ceremony will be when His Majesty enters the Throne Room, accompanied with the musical tunes of Raja Berangkat played by the Pasukan Gendang Besar Diraja Kelantan, commanders who will carry the Cogan Alam (Sceptre of the Universe) and the Cogan Agama (Sceptre of Religion), and bearers of the royal regalia – important elements that reflect the glorious position of the Yang di-Pertuan Agong as the head of state.

The Datuk Paduka Maharaja Lela will present a copy of the Quran to the Yang di-Pertuan Agong in a symbolic gesture depicting His Majesty’s role as head of the Islamic religion of the Federation and the states that do not have a Ruler.

Another highlight will be when the Royal Long Keris is presented to the King, symbolising His Majesty’s willingness to assume his role as head of state. The climax of the ceremony is when His Majesty takes his oath as the Yang di-Pertuan Agong and three calls of “Daulat Tuanku” by Datuk Paduka Maharaja Lela followed by the audience in the hall.

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Strengthening separation of powers

Friday, April 14th, 2017

From the point of view of judicial independence, there are many objectionable features of the Judicial and Legal Services Commission’s set-up.

A CORE feature of a constitutional state is that the judiciary must be separate from and independent of the other branches of the state. Judges must be men and women of integrity, impartiality and legal wisdom.

Most constitutions contain some safeguards for judicial independence. But will the appointee soar above the timberline of the trivial and transcend the pride, prejudices and temptations that afflict ordinary mortals?

These are personal attributes that no constitution can guarantee.

Superior courts: Our Constitution seeks diligently to secure institutional separation between the superior courts and the other organs of the state.

The existence of the judiciary, the judicial hierarchy and the jurisdiction and composition of the courts are prescribed by law and not open to tampering by the executive.

The superior courts are structurally separated from and functionally independent of the executive and the legislature.

Eligibility and qualification for appointment are prescribed by the Constitution (Article 123).

An elaborate, multi-tiered consultation among the Prime Minister, top judges, the Judicial Appointments Commission, the Yang di-Pertuan Agong and the Conference of Rulers precedes every judicial appointment (Article 122B).

Superior court judges have security of tenure and cannot be dismissed except on the recommendation of a tribunal of their peers (Article 125). Judicial salaries and terms of service are more favourable than those of civil servants (Article 125).

The King cannot transfer a judge except on the recommendation of the judge’s superiors.

There are restrictions on parliamentary discussion of judicial conduct or of cases that are sub judice (before the courts). Judges have power to punish for contempt of court (Article 126). They enjoy absolute immunity in tort and crime for their official work.

In some countries like Pakistan, the promotion process is insulated against politics and the appointing authority cannot disregard seniority. Regrettably our Article 122B offers no such protection.

Subordinate courts: Most of the above safeguards are unavailable to the hundreds of judges of our Sessions and Magistrates Courts.

This should be a cause of concern because 90% of criminal and 50% of civil cases are adjudicated in lower courts. To the ordinary citizen, the quality of justice is what happens in the subordinate courts.

Article 138: This Article provides for a fused judicial and legal service under a Judicial and Legal Services Commission (JLSC).

The membership of the JLSC is quite controversial: the chairman of the Public Services Commission (PSC); the Attorney-General (A-G), or if the A-G is disqualified under Article 138(2)(b), then the Solicitor-General; and one or more judges appointed by the King.

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Govt declares April 24 a national holiday to mark King’s coronation.

Tuesday, April 4th, 2017

KUALA LUMPUR: The Government has declared April 24 as an additional national public holiday in conjunction with the coronation of the Yang di-Pertuan Agong Sultan Muhammad V.

Chief Secretary to the Government Tan Sri Ali Hamsa said Section 8 of the Public Holidays Act 1951 (Act 369) allows the special day to be observed as a public holiday in peninsular Malaysia and the Federal Territory of Labuan.

For Sabah and Sarawak, the state governments have been directed to take similar action according to the respective state laws, he said.

“The installation ceremony of the Yang di-Pertuan Agong Sultan Muhammad V will be conducted at Balairung Seri, Istana Negara on April 24, and in this regard, the Government, with the consent of the Yang di-Pertuan Agong, will be holding two main events for the coronation ceremony.

“In the morning of April 24, the installation ceremony will be at Balairung Seri while a royal banquet will be held at night at the Banquet Hall of Istana Negara,” he said in a statement yesterday.

Besides that, Ali said two other functions would also be held, namely a Yasin recital as well as doa selamat and solat hajat (prayers) which are scheduled for April 20 at Putra Mosque in Putrajaya, and an exhibition entitled “Our King” to be held on May 2 at the Royal Museum (formerly Istana Negara).

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