Sanjeet Kaur Deo A/P Karpal Singh v Ketua Hakim Negara Mahkamah Persekutuan Malaysia (WA-24NCVC-97-01/2019)

The late Mr Karpal Singh was charged with an offence under the Sedition Act, 1948. At the High Court, at the end of the defence case, he was convicted and sentenced to a fine of RM 4000, in default, four months imprisonment;

He then filed an appeal to the Court of Appeal against the conviction and sentence vide Appeal No. W-05-78-03/2014 and W-05(S)-66-03/2014 which were heard together. The Court of Appeal presided by Dato Mohtaruddin Baki JCA, Dato Tengku Maimun JCA and Dato Kamardin Hashim JCA delivered a majority decision on 3rd August 2016, wherein Dato Mohtaruddin Baki JCA and Dato Kamardin Hashim JCA affirmed the conviction by the High Court, while Dato Tengku Maimun JCA dissented (hereinafter referred to as „the Karpal Singh sedition appeal‟).

On 22nd August 2018 the Applicant read an article published by an online media portal, Free Malaysia Today of the same day entitled „Senior Judge interfered in Karpal’s sedition appeal, says lawyer’, regarding a statement made by a member of the Malaysian Bar, Encik Hanif Khathri bin Abdullah which, inter alia, stated: „….a lawyer today claimed that the outcome of the late Karpal Singh‟s sedition appeal two years ago was altered due to judicial interference by a senior judge. Mohamed Haniff Khathri Abdullah said he was recently informed of the matter where the judge reportedly meddled in the majority decision to allow Karpal‟s appeal and acquit him of the charge. The appeal was asked to reverse the ruling, the lawyer who usually appeared for Tun Mahathir Mohammad in civil cases said in a

The Applicant lodged a police report the following day, asking for an investigation to be initiated in relation to the entire contents of the said Free Malaysia Today publication. The applicant contended that she was of the view that the public statement made by Encik Haniff Khathri and published in the said „Free Malaysia Today publication, in relation to judicial interference within the Malaysian judiciary and also questions the validity of the Karpal Singh Sedition Appeal decision warranted urgent investigations;

Soon after lodging the said police report, the applicant provided the police with a statement as requested by the police;

Approximately one week prior to the said Free Malaysia Today publication, on 16th August, 2018, Justice Datuk Dr. Haji Hamid Sultan bin Abu Backer, a sitting judge of Court of Appeal, delivered a speech at the International Malaysia Law Conference in which he publicly said that he was severely reprimanded by a top judge for delivering a decision in favour of Indira Ghandi in the case of Indira Ghandi a/p Mutho v PengarahJabatan Agama Islam Perak & 5 Others on 30/12/2015.

(g)

The Applicant then wrote to the then Honourable Chief Justice, Tan Sri Datuk Seri Panglima Richard Malanjum, through her solicitors, requesting inter alia, a status update on the investigations. She also thereafter provided a statement to him in relation to the said allegation of judicial interference in the Karpal Singh Sedition Appeal.

On 2nd September 2018, the Minister in the Prime Minister‟s Department Datuk Liew Vui Keong was reported by the Sun Daily in an article entitled „Judicial meddling: Further action only after internal investigation completed‟ to have said, amongst others, as follows: „Further action on allegations of judicial interference in two high profile cases under the previous government administration will only be taken once the internal investigation by the Honourable Chief Justice‟s office is completed.‟

In an official press release from the Office of the Honourable Chief Justice, Federal Court of Malaysia, Istana Kehakiman, Putrajaya dated 26th November, 2018, entitled „Allegations of Judicial Interference by a top judge in Indira Ghandi and Karpal Singh Cases‟, the Chief Justice stated, amongst others, as follows: „4. Further, a police report had been made by a member of the Bar that there was also judicial interference by a top judge in the appeal case of Karpal Singh. As the allegation concerned a judge who has since retired, the Malaysian Judiciary similarly cannot carry out an investigation under the Judges Ethics Committee Act 2010 and Judged Code of Ethics 2009 into the alleged misconduct of the retired judge.

However, in view of the serious allegation made, the Malaysian Judiciary conducted an internal investigation, which has since been suspended due to police investigation in the case and the appeal to the Federal Court is still pending. This is to ensure that there is no prejudice caused to the ongoing police investigations as well as the pending appeal to the Federal Court.‟ (Note: With reference to the above mentioned ongoing police investigations, it is my considered view that the decision of this Court does not in any way affect the said investigations as the Courts do not perform any supervisory functions or possess jurisdiction over the police).

To the knowledge of the Applicant, there was no further action taken by the Chief Justice in relation to the allegation of judicial interference in the Karpal Singh Sedition Appeal and /or the public declaration of judicial interference made by Justice Datuk Dr. Haji Hamid Sultan bin Abu Backer;

On 29th March 2019, the Federal Court allowed Karpal Singh‟s appeal against the decision of the Court of Appeal and reversed the conviction, acquitted and discharged the late Mr. Karpal Singh. [3] At this stage, in so far as Enc.1 is concerned, this Court takes cognisance of 2 fundamental facts:

that the Applicant has informed this Court of her wish to withdraw the OS. This has been agreed to by the Respondent with no order as to costs subject to Enc. 12 being disposed first; and

(ii) that the subject matter of the OS namely the interference in the sedition case of the late Mr. Karpal Singh resulting in his conviction is renderred academic consequent to the Federal Court setting aside the conviction on 29.3.2019. Principles of Law applicable in an application for a declaratory order [4] For ease of convenience, the relevant legislation governing the power of the court to grant declaratory relief is re-produced below:

The power of the court to make declaratory judgment is derived under Section 41 of the Specific Relief Act 1950. It reads: “Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so.”

(ii) The rules of the court do not provide for the procedure upon which declaratory relief is obtained. Instead it merely provides that „No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not consequential relief is or could be claimed.‟ : Order 15 rules 16 of Rules of Court 2012 [5] The application of the above provisions is best illustrated in the case of Sakapp Commodities (M) Sdn Bhd v Cecil Abraham (Executor of the Estate of Loo Cheng Ghee) [1998] 4 MLJ 651 where Sri Ram JCA (as His Lordship then was) declared as follows: “It is beyond dispute that the remedy of declaration is discretionary in nature…Although s.41 is not a complete code upon the subject of declaratory decrees (Attorney General of Hong Kong v Zauyah Wan Chik & Ors and another appeal [1995] 2 MLJ 620) and the power to make a declaration is almost unlimited (Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at p 507 per Lord Sterndale MR), yet, the remedy of declaration may be refused upon settled principles. Thus, generally speaking, the Court will not grant a declaration where an adequate alternative remedy is available (Manggai v Government of Sarawak & Anor [1970] 2 MLJ 41) or upon an issue of no practical consequence (Lim Kim Cheong v Lee Johnson [1993] 1 SLR 313) or where it may be premature to grant a declaration (Rediffusion (Hong Kong) Ltd v A-G of Hong Kong & Anor [1970] AC 1136) or where a plaintiff is guilty of laches (Faber Merlin (M) SdnBhd v Lye Thai Sang & Anor [1985] 2 MLJ 380) or other inequitable conduct (City of London V Horner (1914) 111 LT 512) or where a ‘cloaked declaration’, that is to say, a declaration for an improper motive, is sought (Everett v Griffith [1924] 1 KB 941 at p 960). We wish to make in plain that this list is by no means exhaustive. We merely seek to demonstrate the wide variety of circumstances in which declaratory relief may be denied in the exercise of discretion.” [7] In the then Supreme Court case of Mohd Noor bin Othman &Ors v Haji Mohamed Ismail bin Haji Ibrahim &Ors [1988] 3 MLJ 82, Hashim Yeop Sani SCJ held as follows: “It is an established principle consistently followed by our Courts that the issuing of a declaration is discretionary. The power to issue a declaration should be exercised with circumspection with a proper sense of responsibility and ought not to be exercised unless the circumstances justify it. See also the speech of Viscount Radcliffe in the Privy Council decision in Ibeneweka v Egbuna [1964] 1 WLR 219 and Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi [1984] 1 MLJ 29. More importantly before a court makes a declaration there must be persons or body as the proper or lawful recipient of the benefits of the declaration. The Court does not act in vain.” [8] In Lim Cho Hock v Government of Perak &Ors[1980] 1 LNS, Abdoolcader J (as His Lordship then was), while acknowledging that power of the Court to make a declaration is only limited by its own discretion, added that such power should be confined to matters justiciable in the Courts, and the binding declarations which it can make under Order 15 rule 16 of the Rules of the High Court, 1980 are limited to legal or equitable rights and do extend to moral, social or political matters. [9] Guided by the above statutory provisions and case laws, I can only conclude that a declaratory order as that applied by the Applicant herein can only be granted where:

there exists a controversy between the parties;

(ii) the proceedings must involve a right;

(iii) the proceedings must be brought by a person who has proper tangible interest in obtaining the order;

(iv) the controversy must be within the court‟s jurisdiction; and

the issue must be one that is not hypothetical or academic. Whether the OS is now renderred academic? [10] Having restated the position of the law on declaratory order and the fact that the conviction of the late Mr. Karpal Singh for the offence of sedition has been set aside, it is incumbent on this Court to decide as to whether the Applicant‟s application is now rendered academic. [11] For this purpose, the case of Bar Council Malaysia v Tun Dato‟ Sri Ariffin bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, pencelah) and another[2018] MLJU 1288 is instructive and crucial for consideration. There, the Federal Court was tasked with deciding on the following constitutional questions:

Whether under Article 122(1A) of the Federal Constitution an additional judge can be appointed on the advice of the Chief Justice, which advice is to take effect after the latter‟s retirement?

(ii) Whether under Article 122(1A) read together with Article 122B(1), 122B(2) and Article 125(1) of the Federal Constitution an additional judge can be appointed as the Chief Justice or the President of the Court of Appeal?

(iii) Whether the appointment of judges by the Yang di-PertuanAgong under Articles 122(1A) and 122B(1) of the Federal Constitution is justiciable?

(iv) Whether the appointment of additional judges and thereafter of the Chief Justice and the President of the Court of Appeal announced whilst they were serving judges but to take effect after retirement violates Articles 122(1), 122(1A) and 125(1) of the Federal Constitution? [12] Given the fact that the Chief Justice and the President of the Court of Appeal whose appointments were the subject matter, the issue before the Federal Court was that they had relinquished their positions prior to the matter being heard. Hasan Lah FCJ delivering judgment on behalf of the Federal Court deliberated as follows:

As a general rule, the Court does not answer academic questions, the leading UK case on this point being Sun Life Assurance Co. of Canada v Jervis [1944] AC 111 (see also Ainsbury v Millington [1987] 1 All ER 929);

(ii) The same position also applies in Malaysia as can be seen in Datuk Syed Kechik bin Syed Mohamed and Anor v Board of Trustees of the Sabah Foundation &Ors[1997] 1 MLJ 257;

(iii) As to what is meant by „academic‟, this was explained by Augustine Paul FCJ in Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai Sdn Bhd) v Fauziah Holdings Sdn Bhd [2006] 4 MLJ 113) at [9]: “The test therefore in deciding whether an appeal has become academic is to determine whether there is in existence a matter in actual controversy between the parties which will affect them in some way. If the answer to the questions is in the affirmative the appeal cannot be said to have become academic.”

(iv) The one limited exception to this general rule is in relation to questions of public law as held in R v Secretary of State for the Home Department ex p Salem [1999] AC 450. This would include: (a) discrete point of statutory construction; (b) a situation where it does not involve detailed consideration of fact; and (c) a situation where there is a large number of similar cases which need to be resolved. I am mindful and satisfied that the facts before this Court does not come within the category of cases described in Salem. Analysis [13] Having analysed the circumstances of the present case at hand, the recent acquittal of the late Mr. Karpal Singh by the Federal Court and the fact that the Applicant has expressed her intention to withdraw the said Application subject to the Court‟s decision on the Respondent‟s application to expunge certain paragraphs contained in the Affidavit filed by Hamid Sultan bin Abu Backer, this Court is of the considered view that the OS at hand is rendered academic as the Applicant no longer has any live issue or interest upon which she relied and based her application when she first sought this Court‟s assistance to remedy. [14] In Dato Menteri Othman Bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus (supra), the Federal Court with a strong corum constituted by Suffian LP, Raja Azlan Shah CJ (Malaya) AG LP, Salleh Abas FJ, Ibrahim Manan FJ and Hashim Yeop Sani J was tasked with the fundamental issue of whether or not to issue a declaration that the purported election of the 15th Undang of Jelebu is ultra vires adat laws and constitution of Luak of Jelebu. Raja Azlan Shah Ag LP held: “The power to grant a declaration should be exercised with a proper sense of responsibility and after a full realization that judicial pronouncements ought not to be issued unless there are circumstances that properly call for their making (See Ibeneweka v Egbuna [1964] 1 WLR 219, 225).” [15] I am satisfied that based on the aforementioned grounds this is one case that do not call for the making of a declaration. Putting it in simple terms, it is my considered view that the aggrieved interest of the Applicant, has been remedied and no further relief is required. Accordingly, I am constraint to hold that the declaratory orders sought after by the Applicant via Enclosure 1 are no longer necessary and is hereby dismissed [with no order as to costs]. Dated: 22thOctober 2019. ……………………..…………. (MOHD FIRUZ BIN JAFFRIL) JUDGE HIGH COURT OF MALAYA AT KUALA LUMPUR Solicitors for the Plaintiff : Ms.Sangeet Kaur Deo, Ms.Tan Chee Kian & Ms.Rayveni Asogan, Messrs. Karpal Singh & Co, No.67, Jalan Pudu Lama, 50200 Kuala Lumpur. Tel No : 03-20703839 Solicitors for the Defendants : Pn.Narkunavathy Peguam Kanan Persekutuan, Jabatan Peguam Negara, No.45, Persiaran Perdana, Presint 4, 62100 Putrajaya.