Can court review decision on dissolution of Melaka assembly?

 

From Hafiz Hassan

Two lawyers recently suggested that the assemblymen opposing the recent dissolution of the Melaka state legislative assembly (SLA) should challenge the matter in court instead of asking the King to annul it.

Can the decision to call for the dissolution of the SLA 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.

In “The Concept of ‘Justiciability’ in Administrative Law”, 2007, Chris Finn states: “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 follows: “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 among non-justiciable issues are those which are known in the US 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.”

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’.”

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 of 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 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 or disastrous). God forbid.

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. - FMT

Hafiz Hassan is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.