The Speaker of Dewan Undangan Negeri Sarawak v Ting Tiong Choon (01(f)-20-08/2019(Q))

SURUHANJAYA PILIHANRAYA MALAYSIA ...RESPONDENTS IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. 01(f)-21-08/2019 (Q) HEARD TOGETHER WITH DEWAN UNDANGAN NEGERI OF SARAWAK TING TIONG CHOON ...RESPONDENT HEARD TOGETHER WITH IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. 02(f)-65-08/2019 (Q) DATO SRI WONG SOON KOH TING TIONG CHOON ...RESPONDENT [In the matter of Civil Appeal No. Q-01(A)-212-07/2017 in the Court of Appeal of Malaysia at Kuching Sarawak Between The Speaker of Dewan Undangan Negeri of Sarawak Datuk Amar Mohamad Asfia Awang Nassar ... Appellant And

Ting Tiong Choon

Dato Sri Wong Soon Koh

Dewan Undangan Negeri of Sarawak

Suruhanjaya Pilihanraya Malaysia ...Respondents Heard together with [In the matter of Civil Appeal No. Q-01(A)-250-07/2017 in the Court of Appeal of Malaysia at Kuching Sarawak Between Dewan Undangan Negeri of Sarawak ... Appellant And Ting Tiong Choon ...Respondent Heard together with In the matter of Civil Appeal No. Q-02(A)-1382-07/2017 in the Court of Appeal of Malaysia at Kuching Sarawak Between Dato Seri Wong Soon Koh ... Appellant And Ting Tiong Choon ...Respondent] Coram: Tengku Maimun Tuan Mat, CJ Rohana Yusuf, PCA David Wong Dak Wah, CJSS Zawawi Salleh, FCJ Nallini Pathmanathan, FCJ Vernon Ong Lam Kiat, FCJ Abdul Rahman Sebli, FCJ Zabariah Mohd. Yusuf, FCJ Hasnah Hashim, FCJ DISSENTING JUDGMENT INTRODUCTION: Preface

This country is a constitutional democracy regulated, constricted and circumscribed by the Federal Constitution - the supreme law of the land and a document drafted meticulously and after much thought and consideration by the founding fathers of the nation. Central to the Constitution is the doctrine of separation of powers which divides the institutions of government into three branches: the legislature, executive and judiciary. The legislature makes the laws; the executive put the laws into operation; and the judiciary interprets the laws. This doctrine is the bedrock of a fair and responsible government providing a system where each branch checks and balances the others.

The Judiciary is armed with the power to adjudicate upon civil or criminal matters between the State and its citizens or between citizens inter se. Under the Westminster model of Government, the Executive and Legislative branches enjoy some degree of fusion. It therefore becomes all the more necessary that the Judiciary remains completely independent in its judicial functions. It is the Courts and only the Courts which have the power to declare that one branch or the other has overstepped its powers as circumscribed by the Federal Constitution. It is therefore an integral aspect of constitutionalism and the Rule of Law that the Judiciary is endowed with the power to strike down those excessive acts. This case brings to the forefront the workings of the doctrine of separation of powers, that is, whether the legislature had exceeded his jurisdiction in declaring the Respondent a disqualified person.

Judges are appointed with the solemn duty to adjudicate disputes and to dispense pure justice through their decisions. In determining what that decision should be, we ask ourselves the question, shorn of all the legal niceties, what should be the outcome which meets the end of Justice. In this case, after having considered the well written judgments of Court of Appeal and the High Court, I have no doubt that the minority judgement of Justice Mary Lim in the Court of Appeal is what the just outcome of this case should be. But, because the Judiciary is the protector of the Federal Constitution, it must in every case be mindful of not overstepping its own functions by attempting to legislate from the bench such that its decision can meet the most favourable yet theoretical just outcome. Hence the aforesaid question we ask ourselves, that is whether the Respondent could be removed, is only one half of the equation.

The other half is whether the so-called correct decision in this case is within the parameters of the law, in this case, the State Constitution of Sarawak read within the context of the Federal Constitution - the supreme law of the land. This second half of the equation is premised on the constitutional duty of the court to accord an interpretation which is consonant to what is provided by the clear words of the written law in terms of the jurisdiction of the State legislature, the Sarawak State Legislative Assembly, in these three appeals. It is with this approach I shall now analyse the merits of respective submissions in seeking an answer to the second part of the equation. Background Facts

The background facts have been meticulously set out in the Court of Appeal judgment and I will not restate them. For clarity, I shall refer to all parties supporting this appeal, namely: the Honourable the Speaker of the Sarawak State Legislature, the Sarawak State Legislature itself, Dato Seri Wong Soon Koh, and the Election Commission of Malaysia as the Appellants. I shall refer to Dr Ting Tiong Choon as the Respondent.

Suffice to say that the genesis of this whole ordeal is when the Sarawak State Legislative Assembly (DUN) was presented with a Ministerial Motion dated 12.05.2017 (MM) to disqualify the Respondent as an elected member of the DUN pursuant to Article 17(1)(g) of the State Constitution of Sarawak. The DUN approved such motion and declared that the Respondent was thereby disqualified and ceased to be a member of the Sarawak DUN with immediate effect. The MM was premised on the grounds that prior to being nominated as a candidate with three others to contest in the state seat on N.74 Pujut for the Sarawak State Election on 25.06.2016, the Respondent had acquired Australian citizenship on 20.01.2010 and was a registered voter in Australia. Nonetheless, it is pertinent to note that it is undisputed that on 04.04.2016, the Respondent had renounced his Australian citizenship and the renunciation was approved by the Australian Government. Therefore, when the Respondent stood for election, he no longer possessed Australian citizenship. He was in fact a Malaysian.

I must state at this juncture that I have no issue and in fact am in agreement with the findings of fact by the Court below that the $ 1^{\mathrm{st}} $ Respondent in this case is quite obviously disqualified by virtue of his taking up of Australian citizenship and his declaration of allegiance to Australia. Further, the fact that he later renounced his citizenship may never redeem him of such an offence. The language of Article 17(1)(g) is very clear in this regard. It prohibits, inter alia, the very act of "voluntary acquisition" of foreign citizenship. Thus, what Article 17(1)(g) prohibits is the mere act of acquiring and not necessarily "acquiring and retaining" foreign citizenship. The fact that the learned counsel for the $ 1^{\mathrm{st}} $ Appellant kept emphasising that voting is mandatory in Australia, is therefore beside the point. It is an undisputed fact in these proceedings that the $ 1^{\mathrm{st}} $ Respondent did voluntarily acquire foreign citizenship.

The manner in which this case has been argued by respective counsel shows clearly the main issue is simply whether the DUN has the jurisdiction to disqualify the Respondent as an elected member of the DUN pursuant to Article 17(1)(g) of the State Constitution of Sarawak on 12.05.2017. There is also, of course, the peripheral issue of breach of natural justice which I shall deal with later in this judgment. Decision of the High Court

The learned Judge in essence dealt with two issues, one: the issue of jurisdiction of the DUN in respect of the MM, second whether the Respondent was accorded the due process of law, that is, the right to be heard.

Prior to dealing with the two issues, the learned Judge rightly pointed out that the decision of the DUN is justiciable and in support, referred to a decision of this Court in Dewan Undangan Negeri Selangor & Others v Mohd Hafarizam Harun [2016] 7 CLJ 143 at page 153 where it held as follows: "[37] It is to be noted that the construction of art. 72(1) has come up for determination by our apex court a number of times. On this point it must always be borne in mind that the power of Parliament and the Legislative Assemblies of the States in Malaysia are limited by the Federal Constitution and the State Constitutions respectively. This principle is as stated by Suffian LP in the case of Ah Thian v Government of Malaysia [1976] 1 LNS 3; [1976] 2 MLJ 112 at 113 which reads as follows: The doctrine of supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of State legislature in Malaysia is limited by the Constitution, and they cannot make any law they please. [38] As regards to the application of art. 72(1), previous cases have held that the court has jurisdiction to determine whether the resolutions passed by the Legislative Assembly exceeded the constitutional provisions. In the case of Datuk Joseph Pairin Kitingan v Tun Datu Haji Mustapha Datu Harun [1985] 1 LNS 7, [1987] 1 MLJ 471 the respondent had applied to the court for declarations that his appointment as Chief Minister of Sabah by the first appellant was valid and the subsequent revocation of his appointment and of the appointment of the second appellant as Chief Minister was ultra vires the Constitution of Sabah and therefore null and void. The appellants raised, inter alia, a preliminary objection that the position of the Chief Minister was a privilege of the Legislative Assembly and that since the privilege had been exercised by resolutions passed by the Legislative Assembly on a motion of confidence on 30 May 1985 and other matters on 3 August 1985, the issues raised by the respondent are not justiciable. The Supreme Court speaking through Abdul Hamid CJ (Malaya) in upholding the dismissal of the preliminary objection held that: The Constitution has made the Courts the ultimate interpreter of the Constitution. The Courts accordingly cannot reject a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority. We cannot see any substance whatsoever in the contention that a privilege of the State Legislative Assembly is involved in the matter before us or that the jurisdiction of the Court to decide the issues raised is ousted as a result of the resolutions of the Assembly passed on May 30 and August 3 respectively. Motions of confidence or of no confidence or whatever passed in the Legislative Assembly might be political ratification or rejection of the choice made but cannot, in our view, affect the primary issues of the appointment and revocation which are legal and justiciable questions clearly within the competence and judicial consideration and determination.

In respect of the issue of jurisdiction, this is what the learned Judge held: "The matter now before this court relates to Sarawak State Constitution and the learned State Attorney General argued that Articles 17 and 18(2)(a) are to be read together and both Articles conjunctively applies to both pre and post-elections. The learned State Attorney General further argued that once a Malaysian citizen acquires a foreign citizenship he is "forever disqualified" under Article 17(1)(g) from being a candidate for election in the State of Sarawak or being qualified to be a member of the Dewan Undangan Negeri Sarawak, irrespective of a subsequent renunciation of that foreign citizenship. I am not persuaded by this argument. I am not prepared to read into Article 17(1)(g) something which is not there. Further it cannot be the intention of the framers of the State Constitution that a foreigner who later became a Malaysian citizen has better rights compared to a citizen by birth who acquired foreign citizenship only to renounce that citizenship later, be worse off. I agree with the Plaintiff's submission on this issue. On plain reading of Article 17(1)(g) one can easily understand from the wordings used "a person is disqualified for being elected as an elected member of the Dewan Undangan Negeri if..." This must relate to a pre-election disqualification, it cannot be post-election. To interpret otherwise would be wrong and perverse. Any challenge to the election result based on this Article 17(1)(g) disqualification must therefore be made by way of an election petition as per Article 118 of the Federal Constitution. Article 18(2) of the State Constitution talks of "an elected member shall also vacate his seat in the Dewan if (a) he ceases to be qualified for election as such a member of the Dewan." This can only happen subsequent to an election. If we look at the other scenario provided i.e. resignation in writing and absent without leave, these 2 are without doubt post-election scenarios. Hence Article 18(2) has to be read with Article 19(1) and not with Article 17(1)(g) as argued by the learned State Attorney General. Having said that Article 17(1)(g) cannot be read with Article 18(2) what then is the status of the Ministerial Motion? It was brought before the Dewan pursuant to Article 17(1)(g) (which I already said is subject to Article 118 of the Federal Constitution). I agree with the Plaintiff's submission that since the Ministerial Motion is clearly based on Article 17(1)(g), by virtue of Article 118 the Dewan has no power to disqualify the Plaintiff as the elected member."

In respect of the issue of due process of law, the learned Judge reasoned it out in the following manner: "The Plaintiff's colleague Chiew Chiu Sing sought for the matter to be stood down for half an hour or an hour for the Plaintiff to prepare his defence so that ample time be given to the Plaintiff to mount his defence and prepare the necessary documents. The 1st Defendant who is the Speaker of the House refused the said request. He said the matter was already filed and heard in Court. It involved the Plaintiff and the issue had been spelt out in the Election Petition, surely the Plaintiff would be prepared for this. The Speaker said "Therefore, he is prepared". It is to be noted that the Ministerial Motion by the 2nd Defendant was received by the Speaker the day before. I accept that the Plaintiff only had notice of it the morning of the 12th May 2017 when the House begun its session for the day. I take view that with the matter of such importance and bearing in mind that 8,899 constituents of Pujut had voted and returned the Plaintiff as their duly elected assemblyman and that the Plaintiff would be adversely affected if the decision of the Dewan goes against him, the least the Speaker could have done was to stand down the matter as requested for half an hour to or an hour: I am constrained to say that I agree given the magnitude of the matter, the Plaintiff was not given adequate and reasonable time to prepare his defence which must necessarily include documentation and the law. This denial to give adequate time to the Plaintiff led to a failure to observe the rules of natural justice. A proper defence I would envisage involve an explanation of what amounts to dual citizenship, an explanation on how citizenship is lost, a discussion on Article 24 and 27 and whether the Dewan is a competent forum. Bearing in mind that some of the YBs are not trained in law the Plaintiff will require more time. I do not think the House is equipped to hear matters of this nature, I shall explain later. I do not think any prejudice will be caused to the mover of the Ministerial Motion if the matter was stood down for 30 minutes or so. It may inconvenience some members of the House but I doubt if support for the Ministerial Motion will be eroded or diminish during that short break, even without the crack of the whip. It is not explained why this matter should proceed post haste. What the Ministerial Motion sought was in actual fact to remove the Plaintiff as a member of the House by way of disqualification so that a by election could be held by the 5th Defendant. It calls into question the election of the Plaintiff as the duly elected member. I bear in mind that the Plaintiff is a medical doctor. He is not a legally trained litigator. At the election court it was his lawyers that argued his case not the Plaintiff himself. I do not agree with the Speaker's view that the Plaintiff is prepared. I agree with the Plaintiff. The Rules of Natural Justice and procedural fairness were not adhered to. By taking an active part in the debate, the Speaker had descended into the arena of conflict and debate. He played an active role to promote the Ministerial Motion and in so doing is no longer seen to be acting impartial. The Plaintiff had submitted the Speaker had acted as the prosecutor and judge. And as can be seen at page 21 of the Hansard the Speaker even knew beforehand that the member for Mambong will second the Motion. This implied pre-arranged plans and the Speaker was aware of it. Majority Decision of the Court of Appeal

In the matter of whether the DUN had the jurisdiction to deal with the MM, the learned Judges opined that the answer to the aforesaid issue is only one of interpretation of the relevant provisions of the Sarawak Constitution. The learned Judges took a holistic approach in interpretation and found that Article 17 of the Sarawak Constitution only provides a set of disqualifying factors constant in nature and Article 18 sets out the circumstances in which a member's tenure in the DUN may be terminated. Article 17(1)(g) has the effect of disqualifying any person from standing in an election and by virtue of Art. 18(2)(a), if that disqualifying act occurs whilst he is a sitting member of incurred the DUN, that member will no longer be able to remain as an elected member, thereby rendering his or her seat in the Dewan vacant. Thus, their Lordships found as a matter of construction of the relevant provisions that there is a clear demarcating line as to the point in time when the disqualification is incurred and by whom.

In construing Articles 16, 17, 18 and 19 of the Sarawak Constitution, Abang Iskandar Abang Hashim JCA (as he then was) opined as follows: "[75] It appears to me that arts. 16, 17, 18 and 19 of the Sarawak Constitution read together, have created two separate and distinct regimes, in dealing with the issue of disqualification. Articles 16 and 17 deal with disqualifications of a person prior to election or pre-election. Articles 18 and 19 deal with disqualification of an elected member post-election. While I agree with learned counsel for the defendants that those articles do not employ the words such as 'prior' or 'pre-election' or 'post-election', I see nothing wrong in using those words to describe the plausible effects of those articles read together, in that manner. As it has become quite clear, at least to me, each of the two regimes may involve a different 'decision-maker' to determine the alleged disqualification." [Emphasis added]

To determine the intention of the framers of the Sarawak Constitution, Abang Iskandar Abang Hashim JCA (as he then was) looked at the operative words used and this is what he said: [92] The operative words used in art. 19(1) and art. 18(2)(a) of the Sarawak Constitution are 'has ceased' and 'ceases' respectively. A plain construction of those words as they are employed in those two mentioned articles must mean that the disqualification must have been incurred by a sitting member, post-election. Those words connote a situation when a member was qualified when he was elected into the Dewan but has since, ceased to be so qualified, as he incurred a disqualification since he was elected. Article 19(1) seeks to clothe the Dewan with the power to determine whether a member has ceased to be qualified to remain as a member in the Dewan. It does not refer to a person. Article 18(2)(a) again declares that a member ceases to be qualified for election as such a member of the Dewan, when he commits any of the disqualifying acts and that includes voluntarily acquiring foreign citizenship during his time as a sitting member of the Dewan."

Premised on the above, the learned Judges held that the DUN's jurisdiction to determine the status of a 'member' for alleged disqualification may be invoked at any time but the exercise of such power or jurisdiction by the DUN is limited to the question of whether a member of the Dewan had ceased to be qualified to be so elected. What that means is the disqualification conduct must have incurred while he is a sitting member of the DUN and not for disqualifying conduct which had occurred before his election into the Dewan.

In the case of the Respondent's disqualification conduct of having voluntarily acquiring a citizenship of a foreign country outside of the Federation of Malaysia this is what Abang Iskandar Abang Hashim, JCA (as he then was) said: [99] In sum, I agree with the defendants that the plaintiff had committed a disqualifying act as a person, under art. 17(1)(g) of the Sarawak Constitution. I agree too, that such an act incurred under the said provisions as contained in art. 17(1)(a) is one that cannot be forgiven, not even under art. 17(3) of the said Sarawak State Constitution. But that is the extent that I can agree with the defendants. My considered view, with respect, is that the august Dewan does not have the necessary jurisdiction to determine the impugned status of the plaintiff, despite his disqualified status, because that disqualification was incurred before he was elected as a member of the Dewan. The language employed in arts. 18 and 19 of the Sarawak State Constitution, does not confer on the Dewan the necessary jurisdiction to determine and rule on the status of the plaintiff's disqualification. My reading of the said arts. 18 and 19 is that the Dewan is only empowered to determine and rule on the status of a member of the Dewan, who has since ceased to be qualified to be so elected. It connotes a change in the position of the member as to his qualified status. A disqualification based on an act of having voluntarily acquiring a citizenship of a foreign country outside of the Federation of Malaysia can still bite a member, but read with art. 18(2)(a), it must need be incurred after he has been elected as a member of the Dewan. In such a situation, the Dewan would be well within its jurisdiction to determine and take a decision on the matter. Such decision so taken by the Dewan shall be final and deserving of the immunity promised under art. 72 of the Federal Constitution. But the factual scenario pertaining to the plaintiff before us did not fit into the one that is envisaged by arts. 18 and 19. His disqualification was incurred well before he was elected as a member of the Dewan. To say that the Dewan had the necessary jurisdiction, as did the defendants, would be a contention that was, though seemingly ingenious, was nevertheless at the same time, one that is unsound, strained, far-fetched and cannot be accepted. Put simply, I find such contention to be untenable." Dissenting Judgment of the Court of Appeal

Justice Mary Lim's approach on the justiciability of the decision of the DUN was as follows as gleaned from the following passages of her Ladyship's grounds: "[253] From all these decisions, it may therefore, be reasonably concluded as follows: First, the doctrine of parliamentary privileges is intrinsically part of the doctrine of separation of powers. Second, this doctrine is enshrined in arts. 63 and 72 of the Federal Constitution; and in the case of the State Assembly of Sarawak, further, in art. 19 of its State Constitution. Third, the doctrine of parliamentary privileges means that the House and the State Assembly, as the case may be, and its members, enjoy immunity from judicial interference. Fourth, the existence of this doctrine of parliamentary privilege is to ensure effective discharge of the functions of the House or the State Assembly by both the House and the State Assembly and its respective members. Fifth, the courts respect that privilege and will not interfere in any parliamentary proceedings or internal management or core business of the House or State Assembly. Sixth, the court will not interfere in those parliamentary proceedings, internal management or core or essential business of the House where such interference will impact adversely on the core or essential business of the House or the State Assembly. [254] From the decisions discussed, in particular the earlier decisions of Lim Cho Hock and Fan Yew Teng, and the recent decision of Teng Chang Khim v Badrul Hisham Abdullah, it is also plain that the matter of membership and the disqualification or loss of membership of the House or the State Assembly, as the case may be, is intrinsically related to the management and core or essential business of the House or the State Assembly. Any interference or scrutiny of any decision or related to such decisions of membership or disqualification of membership by the court will undoubtedly, adversely impact or affect the efficient discharge by the members of their parliamentarian functions. These views have prevailed through these last 60 odd years with no shift in the approach by the courts. [255] Having therefore set out the law in relation to the matter of justiciability of the issues before the court and thereby the jurisdiction of the court to attend to the issues presented, it must follow that the present appeals turn on whether the State Assembly has jurisdiction to deal with the matters contained in the ministerial motion moved under standing order 23(1)(a); whether such matters fall within the core or essential business of the State Assembly. It goes without saying that the ministerial motion was debated and voted upon by the members of the State Assembly. And, the State Assembly resolved that the plaintiff is "disqualified under art. 17(1)(g) of the Sarawak State Constitution to be a member and has ceased to be a member of the Dewan Undangan Negeri Sarawak forthwith". [256] If the answer is in the affirmative, then following the decisions discussed thus far, the matters raised by the plaintiff are not justiciable. The court will therefore, not interfere and will instead, abide by the doctrine of parliamentary privileges. [332] It is my firm view that the question posed in the ministerial motion is a question which inextricably and intrinsically concerns membership of the State Assembly. Such a question is well within the mandate, authority, competence and jurisdiction of the State Assembly to question and deliberate, regardless when it arose so long as it falls within the terms of art. 17; falling well within the application of Lim Cho Hock and the two Fan Yew Teng cases, as affirmed by the Federal Court recently in Teng Chang Khim v Badrul Hisham Abdullah. More so, when the plaintiff is seeking to enjoy and continue to enjoy the privileges of membership of the State Assembly. The matters raised in the ministerial motion and the impugned decision reached are well and truly internal management matters within the business of the State Assembly, taken not even outside its walls but at one of its regular sittings. Consequently, the impugned decision and the State Assembly as well as its members, enjoy parliamentary privilege rendering the matters therefore, not justiciable. To say otherwise, that the courts may scrutinise the ministerial motion and the impugned decision, leads necessarily to an adverse impact on the essential business of the State Assembly." MY DECISION: Jurisdiction of the Dewan Undangan Negeri Sarawak/Purposive Construction

The primary issue in these appeals is simply whether the DUN has the jurisdiction to disqualify the Respondent in this case.

The majority Judgment penned by my learned brother Abdul Rahman Sebli FCJ, with respect, takes the stand that they are not prepared to read into the Sarawak Constitution this notion of "pre-" and "post-election" disqualification. Having taken that stand, they are yet ready and willing to read into the Sarawak Constitution an implied power on part of the DUN to disqualify the $ 1^{\mathrm{st}} $ Respondent as that is surely what the "framers of the Sarawak Constitution" had intended.

The aforesaid interpretation is premised on the use of the tool of construction or the so called "purposive construction" on the words appearing in the statute book. I have no quarrel that the tool of purposive construction exists. But it is trite that the purposive construction tool can only be used where there is ambiguity in the words appearing in the statute or those words connote more than one meaning. Here in my view there is no such ambiguity as clearly pointed out by the majority Judgment in the Court of Appeal.

With respect, reading something that is implied in a document as opposed to purporting to read something into a document are two entirely distinct concepts. A proper and wholesome construction of the Sarawak Constitution against the Federal Constitution clearly suggests that the drafters of the Sarawak Constitution had intended to allow the Dewan the jurisdiction to determine post-election disqualifications only.

Further, one will recall the majority decision of the Federal Court in Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1 ('Kok Wah Kuan'). In rejecting the contention that judicial power is a corollary of separation of powers which doctrine is a basic feature of our Federal Constitution, the Federal Court purported to hold that ours is a system which does not strictly adopt separation of powers. With respect, the Court overlooked the judgment of Azlan Shah FJ in Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 where his Lordship, while declining to accept the basic stricture doctrine, nonetheless expressly held that separation of powers, especially between the Judiciary and other arms of Government is a fundamental tenet of our Constitution. This Court ultimately embraced separation of powers and judicial power as part of the basic structure in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 and Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545.

The point here is that just because the Federal Constitution does not say something expressly, that in itself does not mean that it is not there, impliedly. If we study our Federal Constitution properly and appreciate it in context, then one would realize that there is implied in that Supreme Document the doctrine of separation of powers.

The same is therefore true of the Sarawak Constitution if one harmonizes Article 118 of the Federal Constitution with Article 19(1) of the Sarawak Constitution and realizes that there was intended to be a pre-and post-election regime. Thus, it is true that one cannot "read into" the Sarawak Constitution the pre-and post-election mechanism, because such a regime is already implied. Failing to recognize it is thus in fact ignoring what the Sarawak Constitution itself provides.

Jurisdiction is a creature of statute. In the context of administrative law, the Executive have no inherent jurisdiction save what is conferred on them by law. See: Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135, at page 148. The same must also be true of the legislative branch of Government. The Constitution does not authorize the legislature to exercise any form of inherent power. Their jurisdiction cannot be implied, unless the law very clearly allows such implication. The only body which has any inherent jurisdiction to do anything are the Courts by virtue of their role to dispense justice. Thus, the approach taken by the majority of implying that the drafters would have somehow intended to enable the Sarawak State Legislature to disqualify its members is, with the greatest of respect, not supported by the weight of constitutional and administrative law. Should the legislature wish the power to determine pre-election disqualification, they need only insert that power by constitutional amendment. The Courts are not, by the very essence of their judicial role, empowered to imply such powers for the legislature. (see: Supreme Court in Public Prosecutor v Rajappan [1986]1 MLJ 152.) Pre-and Post-Election Disqualification

The pre-election and post-election point may be explained by reference to two cases. The first is the decision of Azmi J (as he then was) in Fan Yew Teng v Public Prosecutor [1975] 2 MLJ 40 ('Fan Yew Teng'). The other case is the decision of the Indian Supreme Court in Election Commission, India v Saka Venkata Subba Rao[1953] AIR 210 ('Rao's case').

The facts in Fan Yew Teng were briefly these. Mr Fan became a Member of Parliament after a successful election. It was shortly after his election to Parliament that he was found guilty of sedition in the Sessions Court and sentenced with a fine of $2,000. The crucial issue for determination in the case was whether Mr Fan's Parliamentary seat became automatically vacant immediately after his conviction. It is apparent, as disclosed by the facts, that his disqualification happened after he was duly elected to Parliament.

In his judgment, Azmi J analyzed Articles 48(1) and 53 of the Federal Constitution which are substantially similar to Articles 17(1) and 19(1) of the Sarawak Constitution. His Lordship made the following crucial observations, at page 41: "As far as article 48(1)(e) is concerned, there can be no dispute that the plaintiff has been sentenced to a fine of not less than $2,000 and nor has he received a free pardon. It is therefore the contention of learned Counsel for the defendants that once a member of the House of Parliament has been convicted and sentenced to a fine of not less than $2,000 and has not received a free pardon, he becomes disqualified under article 48(1) and his seat shall become vacant by virtue of article 50(1). Learned Counsel for the plaintiff, however, argues that the plaintiff's conviction and sentence alone are not sufficient to disqualify him from his continued membership of the Dewan Ra'ayat and that the plaintiff is entitled to show cause against any move to exclude him from the Dewan under article 53 of the Federal Constitution. As to article 53, learned Counsel for the defendants argues that it only applies in cases where the disqualification is doubtful, but does not apply in the present case where the disqualification is a straightforward one. Before going into the merits of the conflicting arguments it is necessary to appreciate that article 48(1) applies to both pre-election and as well as to postelection disqualification. In short, any person who comes within one of the subclauses (a) to (f) of this article, will not be fit to be a candidate for membership of the Dewan Ra'ayat or be an appointee of the Dewan Negara; and further, if a sitting Member of Parliament incurs any of the disqualification mentioned in the aforesaid sub-clauses, and no question arises as to his disqualification, he will be disqualified. Secondly, it is clearly obvious that articles 50(1) and 53, as opposed to article 48(1), apply only to postelection disqualification, i.e. disqualification arising after election of a person to the House of Representatives or appointment to the Senate. Thirdly, it is also essential to bear in mind that, unlike the constitution of some countries with parliamentary system of government, our Constitution does not confer on the House of Representatives the power to decide elections in disputes, but only questions relating to the disqualification of members. In the case of an election to the House of Representatives, the question of pre-election disqualification including the question of an election on the ground of disqualification of a candidate is given to the High Court under article 118, and if the disqualification is established. The election shall be void under article 50(2)." [Emphasis added]

The most pertinent observation is that our Federal Constitution does not confer on Parliament the jurisdiction to determine the validity of election results. That is a matter reserved exclusively for an election Court as recognized under Article 118 of the Federal Constitution.

At this juncture, it must be understood that the list of disqualifying factors respectively in Article 48(1) of the Federal Constitution and Article 17(1) of the Sarawak Constitution apply to both pre-election and post-election situations. For example, a person who has been convicted of the relevant offence is prohibited from running for elections. It may also be the case that the person, at the time of election was not convicted of any such offence and that the conviction only happened after he became a member of Parliament. The only question is who ought to make the positive pronouncement of disqualification. According to Azmi J in Fan Yew Teng, in the case of the former; it would have to be a Court duly constituted under Article 118 of the Federal Constitution; and in the case of the latter, the House itself may take the necessary action.

The above distinction may be further clarified by reference to Rao's case. Briefly, these were the facts. Mr Rao had been convicted of an offence and was accordingly ordered to be imprisoned for a period of seven years but he was released early. The conviction was more than enough to disqualify him under the relevant provision of the Indian Constitution from contesting. Sometime after his release from prison, a by-election was held. Mr Rao contested and won. He had however, prior to contesting, applied to the Indian Election Commission for exemption from his disqualification under the relevant statute. Only after winning the election was he was informed that his application for exemption was disallowed. The Indian Election Commission accordingly invoked the relevant procedure under the Indian Constitution to have Mr Rao removed as a member of the State Assembly.

Mr Rao responded by filing an action at the High Court seeking to halt his removal. The learned High Court judge decided that Mr Rao's disqualification was a pre-election one and hence, the relevant procedure invoked by the Indian Election Commission did not apply to him. The matter was taken up on appeal to the Indian Supreme Court and was unanimously dismissed. This is what Patanjali Sastri CJ, in agreeing with the High Court held, in extenso: "The Attorney-General argued that the whole fasciculus of the provisions dealing with "disqualifications of Members", vis, Articles 190 to 193, should also be read together, and as Articles 191 and 193 clearly cover both pre-existing and supervening disqualifications, Articles 190 and 192 should be similarly understood as relating to both kinds of disqualification. According to him all these provisions together constitute an integral scheme whereby disqualifications are laid down and machinery for determining questions arising in regard to them is also provided. The use of the word "become" in Articles 190 (3) and 192 (1) is not inapt, in the context, to include within its scope pre-existing disqualifications also, as becoming subject to a disqualification is predicated of "a member of a House of Legislature", and a person, who, being already disqualified, gets elected, can, not appropriately, be said to "become" subject to the disqualification as a member as soon as he is elected. The argument is more ingenious than sound. Article 191, which lays down the same set of disqualifications for election as well as for continuing as a member, and Article 193 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both re-existing and supervening disqualifications; but it does not necessarily follow that Articles 190(3) and 192(1) must also be taken to cover both. Their meaning must depend on the language used which, we think, is reasonably plain. In our opinion these two Articles go together and provide a remedy when a member incurs a disqualification after he is elected as a member. Not only do the words "becomes subject" in Article 190 (3) and "has become subject" in Article 192 (1) indicate a change in the position of the member after he was elected, but the provision that his seat is to become thereupon vacant, that is to say, the seat which the member was filling theretofore becomes vacant on his becoming disqualified, further reinforces the view that the Article contemplates only a sitting member incurring the disability while so sitting. The suggestion that the language used in Article 190 (3) can equally be applied to a pre-existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and far-fetched construction and cannot be accepted. The Attorney-General admitted that if the word "is" were substituted for "becomes" or "has become", it would more appropriately convey the meaning contended for by him, but he was unable to say why it was not used." [Emphasis added]

The above passage is more than clear for the proposition it makes. The majority in the present case attempts to distinguish Rao's case on the supposed basis that:

(i) the facts of the above case are peculiar to it; and

I think such bases to distinguish Rao's case from the present one are, with respect, unfounded. The key two Articles which fell for consideration in Rao's case were Articles 191 and 192 of the Indian Constitution. Article 191 is not in contention in the sense that it sets out the disqualifying factors similar to our Articles 48 and 17 respectively of the Federal and Sarawak Constitutions.

Article 192 of the Indian Constitution, however, is distinct. Clauses (1) and (2) thereof provide as follows: " (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.

The factor which distinguishes Articles 192 of the Indian Constitution from its Malaysian counterparts is who actually makes the decision to disqualify. In the case of India, the decision lies in the hands of the Governor of the State subject to the opinion of the Indian Election Commission. In the case of Malaysia, the power to disqualify members lies exclusively with Parliament (Article 53 of the Federal Constitution), or in the case of the Sarawak State Legislature, the State Legislature (Article 19 of the Sarawak Constitution).

Perhaps an important distinguishing factor which suggests that there is a pre-and post-election mechanism in India may arguably be Article 193 of the Indian Constitution, which reads as follows: "If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of article 188, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State."

However, I do not think Article 193 makes much difference. While there may be no like provision in the Federal Constitution, the decision was ultimately made on an interpretation of the language employed in Article 192(1) itself. In any event, the Sarawak Constitution contains Article 20 the effect of which is similar to Article 193 of the Indian Constitution. Speaking specifically on language, the Indian Supreme Court posited that the words "has become" suggest that the disqualification should have happened while the person is a member. Meaning, the disqualification must have been a supervening one. In that sense, the Article cannot apply to a pre-election disqualification. The Indian Court suggested that the situation may have been different if the word "is" was used as opposed to "has become". This situation is no different from Article 19(1) of the Sarawak Constitution and I do not see why the rationale of the Indian Constitution ought not to apply with equal force.

Again, for clarity, Article 19(1) reads as follows: "If any question arises whether the Speaker or a member of the Dewan Undangan Negeri has ceased to be qualified for appointment or election as such, the decision of the Dewan shall be taken and shall be final."

The above to me fits squarely within the elucidations of Azmi J in Fan Yew Teng and Patanjali Sastri CJ in Rao's case. Had the more generic word "ceased" been used instead, or perhaps if the phrase, taking heed from Rao's case, instead read "is disqualified for appointment", there could have been considerable support for the view the Sarawak State Legislature has the jurisdiction to disqualify the $ ^{1st} $ Respondent irrespective of whether the disqualification was pre-or post-election.

There are several other reasons suggesting that the existence of a pre-and post-election regime is not a fanciful or invented insertion into the Sarawak Constitution but one which was deliberately intended by the framers of the Sarawak Constitution. This is in addition to the choice of language i.e. by deliberately employing the phrase "has ceased".

Firstly, the pre-and post-election dichotomy respects the doctrine of separation of powers. If I were to sustain the submission of the Appellants it would mean that if in the event that the Election Court had held that the Respondent is not disqualified person in the trial of election petition, the DUN would have a power to ignore the ruling of the Election Court and in fact can override that decision by tabling a ministerial motion as was done in this case. That proposition is a blatant disregard to the doctrine of separation of powers which I am not prepared to allow. It is also in disregard Article 118 of the Federal Constitution.

On a proper construction of the provisions of the Federal and Sarawak Constitution, there is clear separation of powers between the High Court and the House or Dewan when it comes to the determination of disqualification. Article 118 of the Federal Constitution stipulates that no election to the House of Representatives or to the Legislative Assembly of a State shall be called in question except by an election petition presented to the High Court having jurisdiction where the election was held. The language itself suggests that the power to determine the validity of elections (which necessarily includes pre-election disqualification), is a feature exclusive to the High Court. This accords well with use of the words "has ceased" in Article 19 to suggest that once a person is already a member, the validity of his membership post-election is to be decided by the Sarawak State Legislature. In this sense, there can be no conflict as there are in fact two different decision-makers each catered to a specific situation i.e. pre-election and post-election disqualification.

The second reason also relates to the doctrine of separation of powers. Given the clear language of the Article 19(1) of the Sarawak Constitution, it would be hard to escape the conclusion that the Courts may extend the Dewan's jurisdiction beyond what the Constitution itself envisions. Doing so would be to play legislature. To illustrate, this is what Patanjali Sastri CJ continued to say in Rao's case: "It was said that on the view that Articles 190(3) and 192(1) deal with disqualifications incurred after election as a member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before his election, for, such a disqualification is no ground for challenging the election by an election petition under Article 329 of the Constitution read with section 100 of the Representation of the People Act, 1951. If this is an anomaly, it arises out of a lacuna in the latter enactment which could easily have provided for such a contingency, and it cannot be pressed as an argument against the respondent's construction of the constitutional provisions. On the other hand, the Attorney-General's contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under Article 192 and by the Election Tribunal inquiring into an election petition under section 100 of the Parliamentary statute referred to above." [Emphasis added]

The first portion of the passage asserts that any lacuna in the law is for the Legislature to fill in. The Courts cannot do it.

Further and more pertinent to my second point, Article 329 of the Indian Constitution expressly and exclusively enables a person to challenge an election result via an election petition much like Article 118 of our Federal Constitution. This further suggests that there is clear separation of powers.

It is not insignificant that there was in fact an election petition and the same was dismissed by the election Court on a technicality. For clarity the grounds for the election petition reads as follows: "Your Petitioner humbly states that the Respondent is disqualified to be elected in the election of the Sarawak State constituency of Pujut (N.74) Sarawak held on 7.5.2016 from 8.00 a.m. to 5.00 p.m. for the following reasons:- a. Your Petitioner recently discovered that at all material times, the Respondent had acquired an Australian Citizenship that entitled him to exercise his right as a citizen under Section 93 of Commonwealth Electoral Act 1918; b. your Petitioner also discovered that by virtue of his Australian Citizenship, the Respondent till to date is a registered voter with the Australian Electoral Commission; c. these conducts of the Respondent is in direct violation of Articles 16 and 17(1)(g) of the Constitution of the State of Sarawak namely a person who has voluntarily acquired citizenship of, or exercised rights of citizenship in, any country outside the Federation or has made a declaration of allegiance to any country outside the Federation is disqualified from being elected as an elected Member of Dewan Undangan Negeri Sarawak; d. the nomination of the Respondent on 25.4.2016 was also ultra vires the Articles 16 and 17(1)(g) of the Constitution of the State of Sarawak; e. the declaration of the Respondent in Form 5A pursuant to Regulation 4 (7) of Election (Conduct of Elections) Regulations 1981 on the nomination date 25.4.2016 was false and an absolute untruth; f. the Respondent had failed to inform the Election Commission that he is an Australian citizen and a registered voter with the Australian Electoral Commission to determine his status and qualification to stand as a candidate for Sarawak State election for the constituency of Pujut N.74; g. the Respondent had committed offences under Statutory Declaration Act 1960 and other relevant statutory provisions by signing a false declaration under Form 5A of the Elections (Conduct of Elections) Regulation 1981 in declaring that himself as a qualified person to be elected as a Member of Dewan Undangan Negeri Sarawak; and h. the Respondent is completely an unqualified, unfit and untrustworthy person to be nominated and elected to represent the people of the constituency of Pujut (N. 74) Sarawak and ought not to have been returned as a member of Dewan Undangan Negeri Sarawak."

The above grounds and reliefs are similar in nature as the ones sought in the MM which in substance called for the removal of the Respondent in view of his acquired Australian citizenship. For clarity this is the MM which reads as follows: "Menteri Kewangan II dan Menteri Perdagangan Antarabangsa dan E-Perdangangan (YB Dato' Sri Wong Soon Koh): Tuan Speaker, this is a Ministerial motion understanding order 23(1)(a) to be read together with the standing order 3 (12). Standing Order 40(10) and Article 19(1)(g) of the Constitution of the State of Sarawak. Tuan Speaker pursuing to Standing Order 23(1)(a), I moving the following motion: "WHEREAS Article 17(1)(g) of the State of Sarawak Constitution states that a person is disqualified from being elected as an elected member of Dewan Undangan Negeri if he has voluntarily acquired citizenship of or exercised rights of citizenship in and has made declaration of allegiance to any country outside the Federation." "AND WHEREAS by way of Statutory Declaration dated 22.4.2016, Honourable Member for Pujut declared that he has NOT lost the qualification to be elected as ADUN in breach of the Constitution." "AND WHEREAS Member for Pujut acquired the Australian citizenship on 20.1.2010." "AND WHEREAS Member for Pujut declared his allegiance to Australia at the time of acquiring the citizenship." "AND WHEREAS Member for Pujut exercised his rights as a citizen by registering as a voter with the Australian Electoral Commission." "AND WHEREAS Member for Pujut was declared bankrupt twice in Australia." "AND WHEREAS Member for Pujut is completely unqualified, unfit and untrustworthy individual to be nominated and elected to represent the people of Sarawak." "AND WHEREAS as a result of his voluntary acts, Member for Pujut has ceased to be member of Dewan Undangan Negeri Sarawak due to the breaches of Article 17(1)(g) of the Constitution." Therefore, it is moved that this House hereby resolves that: "Member for Pujut is disqualified under Article 17(1)(g) of the State of Sarawak Constitution to be a member and has ceased to be a member of the Dewan Undangan Negeri Sarawak forthwith."

As stated above, the MM reflects what was asked for in the election petition which was dismissed by the election Court. In my considered view, it is of no relevance that the election petition was dismissed due to a technicality. What is relevant is that there was no appeal by the Appellants herein which in my view would simply mean that they accepted the decision of the election Court and would be disbarred from bringing this matter before the DUN by virtue of the concept of res judicata. To decide otherwise would mean the Respondents can have a second bite of the cherry where a normal litigant would be barred in Court to do so. My view is consistent and in consonant with the doctrine of separation of powers.

Thus, for the foregoing reasons, it is my considered view that as the provisions of the Sarawak State Constitution presently stand, there was no basis for the $ 3^{rd} $ Appellant to raise the MM as Article 19(1) of the Sarawak Constitution clearly does not confer power on the Sarawak State Legislature to determine pre-election disqualification.

In the circumstances, I decline, simply in the guise of doing justice by the DUN on the facts of this case, to make any pronouncement that the DUN are implied to have some power which the very settled structure of our Federal and Sarawak Constitutions do not otherwise seem to imply. Breach of Natural Justice

Though this matter requires no deliberation from me in view of my finding that the DUN had no jurisdiction to entertain the MM, however for completeness and as it is a matter of public importance I intend to express my views on this issue.

First and foremost, let me say this. It is without doubt that the concept of "breach of natural justice" is one of the fundamental pillars of the Rule of Law which is part of the basic structure of our Federal Constitution. What that means is this. Though the separation of powers doctrine applies between the Judiciary and the Legislature, this separation in my view is subject to the Federal Constitution as it is the Supreme law of the land. In other words, if the Respondent had not been given a fair hearing and thus became a victim of a breach of natural justice, there is no impediment to the Court intervening as the legislature is constitutionally bound to adhere to the Rule of Law. Any contrary view would lead to anarchy and lawlessness - a result which the Courts must prevent at all cost. In the present case, the Respondent had lost his right to represent the people of his constituency and they, the people, have spoken clearly whom they want as their representative. The rights affected are actually the rights of the voters in Pujut.

The Legislature as well as the Executive are subject to the prohibitions prescribed in the Federal Constitution. I can do no better than to refer to what Barwick CJ said in Cormack v Cope [1974] 131 CLR 447: "... [w]hilst it may be true the Court will not interfere in what I would call the intra-mural deliberative activities of the Parliament, it has both a right and a duty to interfere if the constitutionally required process of law-making is not properly carried out...

What I am here saying, or advocating is purely and simply a jurisdictional point. Any statutory body would be acting without jurisdiction if they acted in breach of the Rule of Law, in this case, the failure to accord the Respondent the right to be heard.

Was there a breach here? There was a finding of fact by the trial Judge, hence the question is whether those findings are so perverse that they do not stand up to reasonableness. Having looked at the Hansard, I see no reason to depart from the findings of the trial Judge.

Much has been made of the fact that the Respondent was less than candid in his replies to questions raised by the honourable members in the DUN. It was not, with respect, a simple answer of 'Yes' or 'No' to the question of whether he had acquired Australian citizenship. It is more than that as we have found out. It was a question of jurisdiction of the DUN. He may have been less than candid, but the point of the whole matter is whether he was given a chance to defend himself in a manner as was done in this originating summons in the High Court, Court of Appeal and this Court.

The fact of the matter is that five (5) out of the thirteen (13) Judges are of the opinion that the DUN did not have the jurisdiction to disqualify him. This divergence of opinions by the Judges, including that of Chief Justice of the Federal Court who found that the DUN lacked jurisdiction, speaks for itself. It is just not a simple matter at all. And to deprive the Respondent of having the requested half an hour to prepare his defence is, in my view, a breach of natural justice.

I am fully aware that the legislature operates independently but no statutory body in this country is immune from the doctrine of the Rule of Law, a concept which is very much part of the Federal Constitution. The might of a super majority of a sitting government in the House, with respect, must be used within the confines of the Federal Constitution. As pointed out by the learned Judge, no prejudice would be caused to anyone had the Respondent be given the half hour requested.

The sum of it all is aptly put by the learned Judge when he pointed out that the issue of jurisdiction should have be ventilated in the election Court and not in the DUN.

The majority seems to be persuaded by the notion that the $ 1^{\mathrm{st}} $ Respondent ought not to be allowed to continue to sit in the Dewan as a State Assemblyman by virtue of Article 17(1)(g) of the Sarawak Constitution. This is something all can sympathize with. However, the larger and pivotal question is whether the law allows it. In my construction of the Sarawak Constitution, there is indeed implied a pre-and post-election regime. Refusing to recognize this is refusing to accept that the Sarawak Constitution says what it says.

Next, the majority decision, in my respectful view, sets two dangerous precedents. Generally, it suggests that Courts may purport to insert their own subjective interpretation into written law under the guise of a "purposive reading" which is otherwise unsupported by the law. Specifically, the decision suggests that the jurisdiction of a non-judicial body which is otherwise circumscribed strictly by law, may be extended by implication and against the grain of the structure the drafters had themselves intended. As I have said, such approach is entirely unsupported by settled law and principle.

This is simply a case which requires the Court to give to the words used their natural meaning as they do not connote any ambiguity at all. The words say what they say, and they mean what they say. Not to give the words their natural meaning would be giving a meaning not reflected in the words which the Court cannot and must not do as its role is to interpret and not make laws. With great respect, it can be said that the English language has been turned 'upside down'. Purposive construction has never meant "construction with a purpose". One cannot bend the language of an Act, much less a Constitution, on a supposition that such an interpretation is what the drafters had intended.

Seven leave questions were posed, and they are as follows:

For the reasons I have stated in this judgment, and if I may I echo the learned Chief Justice, these appeals may be determined by answering the first part of leave Question 7 in the negative. This leaves it unnecessary to answer the rest of the leave questions.

Based on the foregoing, it is my considered view that the majority judgment of the Court of Appeal rightly identified the sole issue to be one of jurisdiction and that the right conclusions were arrived at on the correct application of the law. The issue of immunity of the DUN under Article 72(1) of the Federal Constitution does not arise because the Dewan in the first place did not have jurisdiction to disqualify the Respondent. I therefore find there to be no other alternative but to affirm the majority decision and judgment of the Court below, and I accordingly dismiss these appeals with no order as to costs. Dated: 11 February, 2020. (DAVID WONG DAK WAH) Chief Judge, Sabah and Sarawak. List of Counsel as per Appeal 20 applicable mutatis mutandis to the other two appeals) For the Appellant Tan Sri Cecil Abraham, Shankar Ram Asnani, Rishwant Singh and Russel Lim [Thomas, Shankar Ram & Co. Adv.] For the 1 $ ^{1 \mathrm{st}} $ Respondent Chong Siew Chiang, Wong King Wei and Michael Kong Feng Nian [King Wei and Company] For the 2 $ ^{n d} $ Respondent George Lo and Jonathan Tay [George Lo & Advocate] For the 3 $ ^{rd} $ Respondent Datuk Talat Mahmood Abdul Rashid, Saferi Ali, Mohd Adzrul Adzlan and Evy Liana Atang [Sarawak State Attorney-General's Chambers] For the 4th Respondent Shamsul Bolhassan, SFC and Azizan Md Arshad, SFC [Attorney General's Chambers, Putrajaya] Notice: This copy of the Court's Grounds of Judgment is subject to formal revision.