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CASES(S) OF THE WEEK

CONSTITUTIONAL LAW: Constitution - Federal Constitution - Appointment of Ministers and Deputy Ministers - Whether sworn in pursuant to art. 43A(1) Federal Constitution - Whether Minister and Deputy Minister members of Parliament - Whether appointment regularly performed - Whether appointment valid - Evidence Act 1950, s. 114(e)

CIVIL PROCEDURE: Judicial review - High Court - Appointment of Ministers and Deputy Ministers - Whether sworn in pursuant to art. 43A(1) Federal Constitution - Whether Minister and Deputy Minister members of Parliament - Whether appointment regularly performed - Whether appointment valid - Federal Constitution, arts. 43(2) & 59(1)


M KULA SEGARAN v. DATUK SERI ABDUL WAHID OMAR & ORS
HIGH COURT MALAYA, KUALA LUMPUR
ZALEHA YUSOF J
[JUDICIAL REVIEW NO: 25-132-06-2013]
30 JULY 2013

This was an ex parte application pursuant to O. 53 r. 3 of the Rules of Court 2012 (`ROC') by the applicant to commence judicial review proceedings. The orders sought, inter alia, were that the first respondent (Datuk Seri Abdul Wahid Omar) and the second respondent (Datuk Paul Low Seng Kuan), and the third respondent (Waythamoorthy Ponnusamy) and the fifth respondent (Ahmad Bashah Md Hanipah) were not entitled to hold positions of Ministers and Deputy Ministers respectively under art. 43(2) of the Federal Constitution. It was argued that (i) the respondents did not stand at any Parliamentary constituency elections during the general elections on 5 May 2013 but were appointed as Ministers and Deputy Ministers on 15 May 2013; and (ii) their appointments were null and void and of no effect. The applicants contended that the appointments were unconstitutional as the respondents were not members of either House of Parliament as they were yet to be sworn in pursuant to art. 43A(1) of the Federal Constitution. On the contrary, the Attorney General (`AG') objected to the application on the grounds that the application was frivolous and did not disclose an arguable case that justified argument on a substantive motion. The AG cited art. 59(1) of the Federal Constitution which stated that a person must be a member of the Senate before he took oath and the oath must be taken by a member after his election or appointment as a member of the Senate as provided in the 6th Schedule. The issues that arose for consideration were, inter alia, (i) whether the respondents were members of Parliament at the material time; and (ii) whether being members of Parliament, the respondents were required to be sworn in before their appointment as Ministers and Deputy Ministers.

Held (dismissing application):

(1) Constitutionally, a person becomes a member of the Senate either by being appointed by the Yang di-Pertuan Agong or by being elected by the respective State Legislative Assemblies. There was nothing in the affidavit of the applicant which showed that the Yang di-Pertuan Agong had not made the appointment. Since there was no evidence to the contrary, the court presumed that the appointments had been regularly performed as provided by s. 114(e) of the Evidence Act 1950. (para 8)

(2) There is no provision in the Federal Constitution which prevents appointment to the Senate before the appointee takes his oath. On the contrary, cl. 1 of art. 59 of the Federal Constitution and the wording in the 6th Schedule imply that a person has to be appointed first before he can take his oath or swear in. The only restriction is that until he takes his oath, he cannot take his seat and subscribe before the President of the Senate. (para 10)

(3) A Minister could be appointed provided that he does not exercise his function before he takes his oath of office pursuant to cl. 6 of art. 43. Therefore, the appointment comes first and the taking of oath comes later. Since the ground of this application was that the respondents had not been sworn in prior to their appointment, the application for judicial review was dismissed as there was no arguable case that justified argument on a substantive motion. (paras 11 & 12)

Case(s) referred to:

Mohd Nordin Johan v. The Attorney-General, Malaysia [1983] 1 CLJ 130; [1983] CLJ (Rep) 271 FC (refd)

WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 CLJ 478 FC (refd)

Legislation referred to:

Evidence Act 1950, ss. 56, 102, 103, 114(e)

Federal Constitution, arts. 43(2)(b), 43A(1), 45, 59(1)

Rules of Court 2012, O. 53 r. 3(3)

Counsel:

For the applicant - Kula Segaran V Murugesan (Kengadharan Ramasamy, Sivanesan Achuandan & Poninusamy Kalaichelvan with him); M/s A Sivanesan & Co

For the respondents - Abdul Gani Patail; Attorney General (Amarjeet Singh & Suzana Atan; SFC's with him)

Reported by Sandra Gabriel

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