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Suruhanjaya Pilihan Raya Malaysia V Dato' Dr. Abd. Isa Bin Ismail - W-01-386-2009 [2011] MYCA 194 (25 November 2011)

DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN)

RAYUAN SIVIL NO. W-01-386-2009

ANTARA
SURUHANJAYA PILIHAN RAYA MALAYSIA … PERAYU DAN
DATO’ DR. ABD. ISA BIN ISMAIL … RESPONDEN

RAYUAN SIVIL NO. W-02-2654-2009

ANTARA
DATO’ ABU HASAN BIN SARIF … PERAYU DAN
DATO’ DR. ABD. ISA BIN ISMAIL … RESPONDEN

Dalam Mahkamah Tinggi Kuala Lumpur

Permohonan Semakan Kehakiman No.R4-25-304-2009

KORAM:

RAMLY ALI, HMR LINTON ALBERT, HMR AZIAH ALI, HMR

PENGHAKIMAN MAHKAMAH

The Appellant in Civil Appeal No. W-01-386-2009 the Election Commission
(hereinafter referred to as “the EC”), and the Appellant in Civil Appeal No. W-
02-2654-2009 Dato’ Abu Hasan bin Sarif, the State Assemblyman for the
Kota Siputeh constituency of Kedah (hereinafter referred to as “the ADUN”)
appeal against the decision of the learned High Court Judge made in an application for judicial review filed by Dato’ Dr. Abd. Isa bin Ismail who is the Speaker of the Kedah State Legislative Assembly, the Respondent in both appeals.

Background

[2] The ADUN had been absent for the meetings of the State Assembly on 19.4.2009 and on 9.8.2009. The ADUN had submitted to the Respondent an explanation and medical certificate for the period 9.8.2009–10.8.2009 but the Respondent rejected the medical certificate and the explanation. The Respondent took the position that these absences from two consecutive meetings of the Assembly were without leave of the Respondent as Speaker as required by Article 51 of the Constitution of the State of Kedah (“the State Constitution”) and that pursuant to the said Article the Kota Siputeh State Seat had become vacant.

[3] Pursuant thereto the Respondent wrote a letter dated 17.8.2009 to the EC informing the EC that there was a vacancy in the Kota Siputeh State Seat. By a letter dated 1.9.2009 the EC replied amongst others that :

(a) the ADUN is still the ADUN for Kota Siputeh; (b) the Seat is not vacant;
(c) the meetings which were not attended by the ADUN were not two consecutive meetings in one session within the meaning of Article 51 of the State Constitution but two meetings in different sessions, and
(d) the EC accepted the medical certificate tendered as explanation for the ADUN’s absence from the meeting on 9.8.2009.

[4] The EC’s reply resulted in the application for judicial review. In the application for judicial review, as against the EC the Respondent had sought for an order of certiorari to quash the EC’s decision and/or action as per its letter dated 1.9.2009 and an order of mandamus to compel the EC to hold a by-election for the Kota Siputeh State Seat. Against the ADUN the Respondent sought for orders which in effect are as follows :

(a) a writ of quo warranto to ask the ADUN to show cause and give confirmation how and under what basis/or authority that he is still the State Assemblyman for Kota Siputeh;
(b) a declaration that the ADUN is no longer the Kota Siputeh
Assemblyman;
(c) a declaration that the Legislative Assembly of the State of Kedah for the constituency of Kota Siputeh (N3) is vacant, and
(d) a mandatory injunction preventing the ADUN and/or his agents from carrying out the responsibilities, function and duties as Kota Siputeh Assemblyman.
The learned Judge agreed with the Respondent and held that the Assembly’s meetings on 19.4.2009 and on 9.8.2009 were two consecutive meetings and therefore the ADUN’s absences constituted absences for two consecutive meetings in the same session of the Assembly. Applying Article 51 of the State Constitution the learned Judge granted the declaratory order that the
ADUN was no longer the Kota Siputeh Assemblyman and that the Kota Siputeh State Seat was vacant. Consequently the learned Judge granted an order of certiorari to quash the decision of the EC and an order of Mandamus to compel the EC to issue a Writ of Election and to hold a by-election. Both the EC and the ADUN are dissatisfied with the decision of the learned Judge. Hence these appeals. The learned Judge however declined to issue a writ of quo warranto upon her finding that a writ of quo warranto cannot be issued against the ADUN on the ground that Article 132(3)(b) of the Federal Constitution expressly excludes the office of a member of the Legislative Assembly of a State from the category of ‘public services’ as enumerated under Article 132(1). The Respondent has cross appealed against this decision. Having heard submissions, by a unanimous decision we allowed the appeals by the EC and the ADUN. Consequentially the Respondent’s cross appeal was dismissed. We now give our reasons.

The EC’s case

[5] For the EC learned Senior Federal Counsel refers to the Proclamations issued by His Royal Highness (‘HRH’) the Sultan of Kedah in exercise of the power conferred on HRH by Article 53 of the State Constitution and published in the Kedah Government Gazette dated

26.3.2009 and 30.7.2009 respectively. By the Proclamation issued by HRH
dated 25.2.2009 and published in the Kedah Government Gazette dated
26.3.2009, HRH proclaimed the date 19.4.2009 as the date of the Fifth Meeting of the First Session of the State Legislative Assembly. The Proclamation reads inter alia as follows :
….WE AL-SULTAN ALMU’TASIMU BILLAHI MUHIBBUDDIN TUANKU ALHAJ ABDUL HALIM MU’ADZAM SHAH IBNI AL- MARHUM SULTAN BADLISHAH…….in exercise of the power conferred on US under Article 53 of the Laws of the Constitution of Kedah DO HEREBY SUMMON the Legislative Assembly and appoint 19th April 2009 corresponding to the 23rd Rabiulakhir 1430 at the hour of 9.00 in the forenoon as the date and time of the Fifth Meeting of the First Session of the TWELFTH Legislative Assembly of the State of Kedah Darul Aman…..
The Proclamation issued by HRH dated 1.7.2009 and published in the Kedah Government Gazette dated 30.7.2009 reads in the same vein but with the date 9.8.2009 being proclaimed by HRH as the date of the First Meeting of the Second Session of the Twelfth Legislative Assembly.

[6] Learned Senior Federal Counsel submits that the meeting on

19.4.2009 being the Fifth and last meeting of the First Session and, the meeting on 9.8.2009 being the First Meeting of the Second Session, are not
‘two consecutive meetings’ as envisaged by Article 51 of the State
Constitution which reads as follows :
If any member of the Legislative Assembly is absent from the Assembly without leave of the Speaker for two consecutive meetings his seat shall become vacant.
It is submitted that the phrase ‘two consecutive meetings’ is to be construed as two consecutive meetings in the same session. Thus it is submitted that the ADUN was not absent for two consecutive meetings but rather he was
absent for the Fifth Meeting of the First Session held on 19.4.2009 and the First Meeting of the Second Session held on 9.8.2009. Therefore it is contended that the failure of the ADUN to attend the meetings on 19.4.2009 and on 9.8.2009 was not absence from two consecutive meetings as contended by the Respondent. Learned Senior Federal Counsel submits that the Proclamation dated 1.7.2009 is clear in its terms and the summoning of the First Meeting of the Second Session is evidence that for all intent and purposes the First Session has been or is deemed prorogued.

The Respondent’s case

[7] For the Respondent learned counsel submits that ‘two consecutive meetings’ in the State Constitution must be given its plain and ordinary meaning and can only mean one meeting following the earlier meeting in uninterrupted succession. In support counsel referred to the definition of

‘consecutive’ found in the Shorter Oxford English Dictionary on Historical Principles as “Following continuously: following each its predecessor in uninterrupted succession”. Learned counsel submits that a ‘session’ will continue until it is dissolved or prorogued and refers to the definition of
‘session’ under Article 2 of the State Constitution. Counsel submits that there
was no prorogation or dissolution of the Assembly after the Fifth Meeting of the First Session. Thus despite the Proclamation by HRH that the meeting on
9.8.2009 was the First Meeting of the Second Session, it is contended that the meeting on 9.8.2009 was held as part of the First Session. The Respondent contends that the ADUN had failed to attend two consecutive meetings of the Assembly without notifying his absence to the Speaker or the
Clerk of the Assembly as required under the State Constitution and the Kedah
Standing Rules and Orders.

[8] The learned Judge agreed with counsel for the Respondent that applying the definition of ‘consecutive’ in its plain and ordinary meaning the Fifth Meeting of the First Session on 19.4.2009 and the First Meeting of the Second Session on 9.8.2009 were ‘two consecutive meetings’ within the meaning of Article 51 of the Kedah Constitution. The learned Judge found that the meetings on 19.4.2009 and on 9.8.2009 were held in ‘uninterrupted succession’ in a single session.

[9] The learned Judge disagreed with the learned Senior Federal Counsel that the Proclamation dated 1.7.2009 by which HRH proclaimed the date

9.8.2009 as the date of the First Meeting of the Second Session is deemed to have prorogued the First Session. The learned Judge opined that it would be erroneous to assume that the Proclamation describing the meeting on
9.8.2009 as the First Meeting of the Second Session is evidence that the Assembly had been prorogued. Her Ladyship, though accepting that under Article 53(2) of the State Constitution the power to prorogue the Legislative Assembly is a discretionary power of HRH, is of the view that the prorogation of the Assembly cannot be inferred, implied or deemed but must be expressedly exercised by HRH in the same manner that HRH does in exercising his power to dissolve the Assembly, and that is by issuing a Proclamation. Her Ladyship found that in the absence of evidence of prorogation, the meeting on 9.8.2009 though described in the Proclamation
as the First Meeting of the Second Session was, in law, the Sixth Meeting of the First Session. The learned Judge held that there was no Second Session. Thus the learned Judge agreed with the Respondent that the ADUN was absent for two consecutive meetings in the same session.

[10] Before us learned Senior Federal Counsel submits that the learned Judge has erred in according a plain and ordinary meaning to the phrase ‘two consecutive meetings’ as proposed by the Respondent and construing the said phrase in isolation and without regard to the definitions of ‘meetings’ and

‘sessions’ as provided under Article 2 as follows :
“meeting” means any sitting or sittings of the Legislative Assembly commencing when the Assembly first meets after being summoned at any time and terminating when the Assembly is adjourned sine die or at the conclusion of a session without adjournment;
“session” means the sittings of the Legislative Assembly commencing when the Assembly first meets after being constituted or after its prorogation or dissolution at any time, and terminating when the Assembly is prorogued or dissolved without having been prorogued.
Learned Senior Federal Counsel submits that these provisions when considered as a whole would show that ‘two consecutive meetings’ must be construed to mean two consecutive meetings in one session and not in separate sessions of the State Assembly. It is submitted that the last sitting in one session is the Assembly’s last meeting of that session and the first
meeting in the next session is the Assembly’s first meeting of the new session. Thus it is submitted that meetings can only consecutively exist in their respective sessions. The termination of a preceding session is an interruption of sequence.

[11] We agree with the learned Senior Federal Counsel that the meetings on 19.4.2009 and 9.8.2009 were not two consecutive meetings. We find that there was an interruption in their succession in the form of the Proclamation dated 1.7.2009 which, in proclaiming that the meeting on 19.8.2009 would be the First Meeting of the Second Session had, in effect, terminated the First Session of the Assembly. Further we find from contemporaneous documents in the form of the letter dated 17.8.2009 written by the Respondent himself to the ADUN which shows that the Respondent accepted that the meeting on

19.4.2009 was the Fifth Meeting of the First Session and the meeting on
9.8.2009 is the First Meeting of the Second Session. There is also the letter dated 12.10.2009 written by the Secretary of the State Legislative Assembly giving notice that the Budget 2010 meeting of the Assembly would be held on
17.11.2009 in the Assembly’s Second Meeting of the Second Session. Therefore we agree with the EC that the ADUN had not been absent for two consecutive meetings. Consequently his seat had not become vacant.

[12] The learned Judge found no evidence of prorogation of the First Session. Her Ladyship is of the view that the prorogation of the Assembly cannot be inferred, implied or deemed but must be expressedly exercised by

HRH. With respect we are of a different view. Article 53(1) and (2) of the
State Constitution provide as follows :
(1) The Ruler shall from time to time summon the Legislative Assembly and shall not allow six months to elapse between the last sitting in one session and the date appointed for its first sitting in the next session.
(2) The Ruler may prorogue or dissolve the Legislative Assembly.
In Mohamed Noor bin Othman & Ors v Haji Mohamed Ismail bin Hj Ibrahim & Ors [1988] 3 MLJ 82 Hashim Yeop Sani SCJ said :

It is trite law that where the words of a statute are clear, there is no room for the court to go beyond the expressed language of the statute

It is apparent that whilst the word ‘shall’ appears in Article 53(1), in Article
53(2) the word ‘may’ is used. In the case of Krishnadas Achutan Nair & Ors v Maniyam Samykano [1997] 1 CLJ 636 the Federal Court said inter alia as follows :

The function of a Court when construing an Act of Parliament is to interpret the statute in order to ascertain legislative intent primarily by reference to the words appearing in the particular enactment. Prima facie, every word appearing in an Act must bear some meaning. For Parliament does not legislate in vain by the use of meaningless words and phrases. A judicial interpreter is therefore not entitled to disregard words used in a statute or subsidiary

legislation or to treat them as superfluous or insignificant. It must be borne in mind that:

As a general rule a Court will adopt that construction of a statute which will give some effect to all of the words which it contains. per Gibbs J in Beckwith v. R. [1976] 12 ALR 333, at p.

337.

In Manokaram Subramaniam v Ranjid Kaur Nata Singh [2008] 6 CLJ 209, Arifin Zakaria FCJ (now CJ) said as follows -

It is a principle of statutory interpretation that when the legislature uses different language in the same connection, in different parts of the statute, it is presumed that a different meaning and effect is intended, and if different language is used in contiguous provisions, it must be presumed to have done so designedly. (N.S. Bindrai's Interpetation of Statutes, 8th edn. p 275). The right approach to interpretation of statute is as stated by Higgins J in Amalgamated Society of Adelaide Steamship Co. Ltd [1920] 28

CLR 129 at p. 161-162 which reads:

The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it, and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means in its ordinary and natural sense it is our duty to obey that meaning even if we think the result to be inconvenient, impolite or improbable.

[13] Insofar as Article 53 is concerned, it is our considered opinion that the use of the word ‘shall’ in Article 53(1) and the word ‘may’ in Article 53(2) is by design and intended to be so interpreted. We are of the view that by the word

‘shall’ appearing in Article 53(1) an obligation is imposed on HRH to summon the Legislative Assembly for the first sitting for each session. However for the prorogation or dissolution of the Assembly, we are of the view that by the use of the word ‘may’ in Article 53(2), there is no similar obligation imposed on HRH. In other words the issuance of a proclamation to prorogue or dissolve the Assembly is at the discretion of HRH. For the reasons stated we are unable to agree with the learned Judge that HRH must issue a Proclamation to prorogue the Assembly. We find Article 53(2) imposes no such obligation on HRH. However we venture to add that in the case of dissolution of the Assembly for reasons other than the expiry of the five-year term as specified under Article 53(3), a proclamation of such dissolution would be rendered necessary.

[14] By the Proclamation dated 1.7.2009 HRH in clear words had summoned the Legislative Assembly to its First Meeting of the Second Session. The decision to appoint 9.8.2009 as the First Meeting of the Second Session was the decision of HRH. We are of the view that effect ought to be given to the clear words of the said Proclamation which was issued by HRH in exercise of his powers under Article 53. We are of the considered opinion that neither the EC nor the court is at liberty to disregard the Royal Proclamation. To do so would be to negate the command of HRH that the

sitting of the Assembly on 9.8.2009 shall be the Assembly’s First Meeting of the Second Session.
[15] Pursuant to our findings above we find no necessity to consider the cross appeal. However we take the opportunity to state that we are in full agreement with the learned Judge that the writ of quo warranto cannot be issued against the ADUN for the reasons given by Her Ladyship. We therefore allowed the appeals and dismissed the cross appeal. The decision of the High Court is thereby set aside and we ordered the ADUN to be reinstated to his position. In respect of Civil Appeal No. W-01-386-2009 the EC did not pray for costs. In respect of Civil Appeal No. W-02-2654-2009 we awarded costs of RM5,000.00 to the Appellant.
Date : 25th November 2011

[DATO’ AZIAH BT. ALI]

Judge
Court of Appeal Malaysia
Putrajaya.

COUNSEL

W-01-386-2009

For the Appelant : Amarjeet Singh a/l Serjit Singh
Suzana Atan
Peguam Kanan Persekutuan
Jabatan Peguam Negara Malaysia
For the Respondent : Hj. Sulaiman Abdullah Edmund Bon Tai Soon Zulkarnain Bin Luqman Tetuan Chooi & Company Level 23, Menara Dion 27, Jalan Sultan Ismail
50250 Kuala Lumpur

W-02-2654-2009

For the Appelant : Dato’ Mohd Hafarizam Harun
Dato’ Firoz Hussein Ahmad Jamaluddin Tetuan Hafarizam Wan & Aisha Mubarak Suite 13A, Level 13, Menara Dato’ Onn, Jalan Tun Ismail,
50480 Kuala Lumpur
For the Respondent : Hj. Sulaiman Abdullah Edmund Bon Tai Soon Zulkarnain Bin Luqman Tetuan Chooi & Company Level 23, Menara Dion 27, Jalan Sultan Ismail
50250 Kuala Lumpur

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