Monday, November 29, 2010

Intipati keputusan Mahkamah tolak kes bekas DYMM Sultan Kelantan

PUTRAJAYA: In a landmark ruling, the Federal Court held that the Regent has the exclusive power to carry out royal functions when a Sultan is incapacitated.

The apex court said this in dismissing two petitions filed by former Kelantan Ruler Tuanku Ismail Petra Sultan Yahya Petra who among others, sought its opinion over the meaning of the phrase "His Royal Highness".

In allowing the jurisdictional objection by then Kelantan Regent Tengku Muhammad Faris Petra (current Ruler Sultan Muhammad V) Friday, Federal Court judge Justice Zulkefli Ahmad Makinudin said the Kelantan Regent was vested with all the powers of "His Royal Highness" under various provisions in the Kelantan Constitution.

"It is our judgment having noted that the definition of "His Royal Highness" includes the Regent, it is therefore clear that the Kelantan Constitution had envisaged the Regent having all the powers to carry out the royal functions as the Sultan of Kelantan would have had his Royal Highness the Kelantan Sultan had not been incapacitated," he said in his 33-page judgment.

With him in the panel were Federal Court judges Justice Md Raus Sharif and Abdull Hamid Embong.

"We are of the view that there can be only one individual attending to affairs of the Kelantan State at any one time.

"In this instance, due to the incapacitation of the petitioner, the first respondent as the Regent of Kelantan and the acting Kelantan Ruler is the only person entitled to exercise the powers of "His Royal Highness" within the meaning of Kelantan Constitution," he said in reading out the unanimous decision.

In elaborating, Justice Zulkefli said the petitioner, being incapacitated, could not exercise such a power unless he had recovered from such incapacitation.

"It, therefore, follows that the petitioner has no locus (right) to refer a question of law to the Federal Court under Kelantan Constitution whilst the first respondent is the Regent, as the power to do so is vested solely in his (Tengku Muhammad Faris) hands until the Regency is brought to an end and the petitioner resumes his role as the Sultan of Kelantan," he said.

The Bench also ruled that there was no distinction between the powers exercised by Tengku Muhammad Faris when he was the Regent of Kelantan and the powers exercised by a reigning Sultan regardless of whether he (Tengku Muhammad Faris) was appointed by the Council of Succession or by the then Sultan of Kelantan.

Justice Zulkefli said it should be noted that there was no provision under the Kelantan Constitution which supported Tuanku Ismail's contention that the appointment of the Regent by the Council was of lesser effect than had the Sovereign appointed Tengku Muhammad Faris as the Regent.

"If the same Council of Succession has the power conferred by the Kelantan Constitution to choose and confirm the next Sovereign and determine the capacity of the Sultan of Kelantan himself, it would necessarily follow that a Regent appointed by the very same Council, as in this case, would have the same power to exercise the royal functions provided under the Kelantan Constitution," he said.

Tuanku Ismail filed petitions on May 5, June 22 and Sept 20 respectively asking the Federal Court to determine the meaning of the phrase "His Royal Highness" and the fundamental liberties of the Sultan. He named then Kelantan Regent Tengku Muhammad Faris and the Kelantan Government as respondents.

Justice Zulkefli said that the contention of the petitioner that different powers were vested in a Regent appointed by the Council and himself as a Sovereign was unsustainable in the circumstances of the case.

Justice Zulkefli also said that the Bench found that the distinction between these two words "Regent" and "Sovereign" (Sultan or Kelantan Ruler) did not have any effect on the royal prerogatives of Tengku Muhammad Faris to appoint or revoke the appointment of any members of the Council under the Kelantan Constitution.

The court did not made any order as to costs after the then Regent's lawyer Farah Shuhadah Razali said they did not receive instruction to apply for costs.

Lawyer Azhar Azizan @ Harun, who acted for Tuanku Ismail, said he would discuss with his client the next course of action regarding another petition on whether the Regent has the power to amend the Kelantan Constitution.

©The Star by M.MAGESWARI


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