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'Suo motu': How Federal Court can act on its own to resolve N Sembilan crisis
Can the Federal Court intervene and solve the months-long Negeri Sembilan royal crisis on its own? A former Court of Appeal judge says yes.
This is because the crisis involves two major legal questions: Whether the state’s ruling chieftains - who are constitutionally empowered to dictate who sits on the throne - had duly exercised their authority to remove Tuanku Muhriz Tuanku Munawir as ruler; and whether those chieftains were lawful office bearers at the time of their proclamation.
Can the Federal Court intervene and solve the months-long Negeri Sembilan royal crisis on its own? A former Court of Appeal judge said yes.
This is because the crisis involves two major legal questions: Whether the state’s ruling chieftains - who are constitutionally empowered to dictate who sits on the throne - had duly exercised their authority to remove Tuanku Muhriz Tuanku Munawir as ruler; and whether those chieftains were lawful office bearers at the time of their proclamation.
Speaking to Malaysiakini, retired judge Hamid Sultan Abu Backer said the problem, however, is that the usual legal process is a very lengthy and slow one, whereas the Negeri Sembilan problem requires a more immediate resolution.
Thus, Hamid said, there is a need for the Federal Court to invoke “suo motu”.
A Latin legal term that means “of its own accord”, suo motu is a situation where a court or judge starts an action or proceeding on its own initiative instead of waiting for a case to be brought before it.
/file/publisher-c1a3f893382d2b2f8a9aa22a654d9c97/2021/02/a0f7bd7e4e592df62c786d5295bd5932.jpg "Judge Hamid Sultan Abu Backer 040221")
While there is no specific legal provision for this in Malaysia, Hamid (above) believed such powers could be derived by reading Article 121(1) of the Federal Constitution - which establishes the authority of the higher courts - together with the judicial oath of office to “preserve, protect, and defend” the Federal Constitution.
He said this will allow the Federal Court to bypass systemic delays and “deliver swift, definitive rulings on urgent constitutional disputes”.
Hamid argued that suo motu was necessary as the usual legal process is a lengthy one that is ill-suited for urgent crises.
If invoked, it would be the first time that the courts make such a move in Malaysia.
Slow progress
At present, the rebel territorial chieftains - who want to dethrone sitting ruler Tuanku Muhriz - have initiated a legal challenge against the Negeri Sembilan Council of the Yang di-Pertuan Besar and the Ruling Chiefs (Dewan Keadilan dan Undang or DKU).
It seeks the release of meeting minutes from April 17, in which the DKU - the state’s advisory body on customary affairs - removed faction leader Mubarak Thahak as Sungai Ujong chieftain.
READ MORE: KINIGUIDE | Negeri Sembilan royal rumble: What's going on?
The case has resulted in an injunction meant to preserve the status quo in Negeri Sembilan, but the progress has been slow.
The suo motu proposal comes in response to arguments which include that the Yang di-Pertuan Besar should invoke Article 34(3) of the Negeri Sembilan state constitution.
Article 34(3) allows the state ruler to refer any questions about the state constitution to the Federal Court, and the apex court would be compelled to state an opinion.
However, Hamid argued that the use of Article 34(3) can only be used on the advice of the executive.
Ongoing conflict
Tuanku Muhriz is in conflict with Menteri Besar Ismail Lasim and the state executive council.
The menteri besar and state exco want to enforce a disputed proclamation by a rebel faction of territorial chieftains ousting Tuanku Muhriz. He retaliated by revoking the appointments of the exco members, except for Ismail.
/file/attachments/orphans/TuankuMuhriz_885315.png "Tuanku Muhriz ibni Almarhum Tuanku Munawir is the eleventh Yang di-Pertuan Besar of Negeri Sembilan 210926")
The matter is further complicated as the state secretary and legal adviser - who are federal employees - are also at odds with the state exco, and have even gazetted the removal of members.
READ MORE: 'Overtaken by events' - MB dodges shifting loyalty, 'forced to sign' posers
This could cause major problems in the administration of the state if the executive’s authority and legitimacy continue to be in question.
Meanwhile, there are also arguments that a state of emergency should be declared in Negeri Sembilan, pending a royal tribunal by the Conference of Rulers to resolve the conflict.
On this, Hamid has argued that such a move is an unconstitutional shortcut, and that his suo motu proposal is the right way to go about it.
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Not advisable even if they have the power. PN will paint this as federal government influencing royal issue AND the court. UMNO should go to court if they feel aggrieved. It's a BIG PUZZLE why they haven't done so. In the meantime, I wonder if the local Malay Chambers of Commerce, farming cooperatives, fishermen association, people in construction/development sector must all be getting jittery because no exco means no approvals for anything from state consent to transfer properties, seasonal subsidies, emergency disaster relief or infrastructure maintenance of state assets. It's time they speak up.
The Federal Court in Malaysia is NOT the Supreme Court in India. The Federal Court of Malaysia has generally never exercised suo motu power (the authority of a court to initiate a legal proceeding on its own motion without a formal petition) because of the country's constitutional framework, legal traditions, and strict boundaries between the branches of government. The Federal Court strictly adheres to an adversarial system, while the Indian judicial system is fundamentally adversarial but incorporates significant inquisitorial elements to protect fundamental rights and promote social justice. While a pure adversarial system restricts a judge to acting as a neutral referee between two competing parties, the Indian Supreme Court uses a hybrid approach. It shifts toward an inquisitorial approach, especially in Public Interest Litigation (PIL) and when exercising its suo motu powers. Therefore, Suo motu actions are characteristic of an inquisitorial system (such as that seen in the Supreme Court of India or Pakistan), which Malaysia's standard rules of civil procedure do not formally accommodate. Federal Court cannot actively hunt for cases; it must wait for an aggrieved party to formally file an action (requiring locus standi, or legal standing). Our Federal Court has a long way to go to change to an inquisitorial system.
If Federal Court intervenes now, be prepared for more intervention in the future where justice has been slow and is of public importance. Indian Supreme Court had done it quite routinely and have delivered some interesting judgements.
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