PUTRAJAYA (Sept 7): Lawyers for the three former Negeri Sembilan undangs, the incumbent Undang Johol and two chieftains told a three-member Court of Appeal bench that there is a jurisdiction matter which should be determined first before any other matter can proceed — namely, whether the committal proceedings on them or their application proper should be heard at the High Court or the Special Court of Rulers.
Their lead counsel Awang Armadajaya Awang Mahmud argued that these are exceptional circumstances which warrant a stay of all proceedings against them that include the committal order issued by the High Court on July 8, or the injunction imposed on them on June 5, which he claims the High Court may not have jurisdiction to give.
Awang Armadajaya, who appeared with Datuk Mohammed Rhiza Ghazi and Choo Shi Jin, said the undangs and chieftains had already filed to set aside the injunction imposed on them but the court had heard the committal proceedings and granted leave (permission) to initiate contempt proceedings on them on July 8.
“Our clients say that the issue is that this case should have been heard in the Special Court under Article 182 and Article 183 of the Federal Constitution (Proceedings Against the Yang Di-Pertuan Agong and The Rulers), as besides the ruler, the Negeri Sembilan undangs and chieftains also hold a special position, namely they are part of the (royal) institution,” he claimed.
“The question arises whether the ruling chiefs should fall under the jurisdiction of the Special Court or the High Court. This issue should be determined first in the context of their appeal to set aside the leave for contempt and also the injunction imposed against them.
“If the jurisdiction is before the Special Court, the whole proceeding at the High Court is considered nullified. This matter has to be determined first during the appeal proper, during full submissions, and for this application for a stay over the committal. My submission is that there are special or exceptional circumstances for this bench to grant a stay before the hearing of the appeal,” he said.
Awang Armadajaya told this to the bench led by Datuk Dr Alwi Abdul Wahab. Besides Alwi, the bench also comprises Datuk Dr Shahnaz Sulaiman and Datuk Amarjeet Singh Serjit Singh.
Article 182 concerns the formation of the Special Courts, while Article 183 stipulates that no action be instituted against the Yang di-Pertuan Agong or a ruler except with the consent of the Attorney-General personally.
Article 160(2) gives various definitions in the Constitution and on the definition of a ruler, especially for Negeri Sembilan, and as Awang Armadajaya said, it stipulates that in relation to Negeri Sembilan, it means that the Yang di-Pertuan Besar is acting on behalf of himself and the ruling chiefs in accordance with the constitution of that state.
The three deposed Undangs – Datuk Mubarak Thahak (whose status as the Undang for Sungai Ujong is under dispute), Datuk Maarof Mat Rashid (the removed Undang for Jelebu), Datuk Abd Rahim Yasin (the removed Undang for Rembau) — and Datuk Muhammed Abdullah (the present Undang for Johol), along with Tunku Syed Razman Tunku Syed Idrus Al Qadri (the Tunku Besar Tampin) and Datuk Seri Badarudin Abdul Khalid (the Datuk Shahbandar Sungai Ujong), want to set-aside the committal proceedings against them issued by judge Roz Mawar Rozain on July 8.
No circumstances for stay to be granted
The contempt proceeding was originally scheduled for July 28 at the Seremban High Court, following an ad-interim stay granted by the Court of Appeal on July 29.
Meanwhile, Steven Thiru, who appeared for Dewan Keadilan and Undang (DKU) and its secretary Raja Norazli Raja Nordin, submitted that the High Court has the jurisdiction to hear the matter and that the proceedings should not be heard before the Special Court.
Thiru, who appeared with David Matthew and Gregory Das, said the appellants can argue the matter over the jurisdiction during the substantive (main) hearing before the High Court in the hearing for committal proceedings.
This matter, he added, can be brought up at the High Court and not in the leave for committal at the Court of Appeal.
He added that the committal proceeding was heard first before the setting aside of the injunction, as the cause papers for the matter were filed first, and that it was normal for the court to decide the issue of committal first before other matters.
“Since prima facie for committal has already been determined on July 8, they should answer the matter first. It is to be noted that three of them have evaded service of the committal papers and we are also initiating another leave for contempt proceeding against them.”
Alwi and Amarjeet asked Thiru if the DKU and Raja Norazli would be prejudiced if the appellate bench granted a stay. The lawyer said they would like to see its fruition (of committal) as it affects the administration of justice.
On June 5, the DKU and Raja Norazli had applied for an injunction against the six from holding any DKU function or event, and this was granted by Roz Mawar.
However, on the same day, the six installed and proclaimed Tunku Datuk Seri Nazaruddin Tuanku Jaafar as the new Yang di-Pertuan Besar of Negeri Sembilan, resulting in the leave for contempt sought by DKU and Raja Norazli being granted by Roz Mawar on July 8.
Alwi said the bench has fixed Sept 14 for e-review for the three-member bench to fix a decision date.
Awang Armadajaya applied for the ad interim stay to be extended pending hearing.
It is to be noted that Roz Mawar has fixed Tuesday (Sept 8) as hearing for committal on Syed Razman, as he and his lawyers had accepted service for the committal papers.
Awang Armadajaya told reporters that this is an important issue for historical determination, to recognise if the chieftains should be recognised as rulers, and whether the matter should be heard before a special court.