AG must petition Federal Court to intervene in royal crisis

Let the Federal Court rise to its constitutional stature and restore absolute clarity to the rule of law. Given the profound weight of the dispute, the judiciary cannot afford to sit idly by.

The legitimacy dispute surrounding the Negeri Sembilan royalty, pitting the customary powers of the chieftains (undangs) against the state’s council of the Yang Dipertuan Besar and the ruling chiefs (Negeri Sembilan Dewan Keadilan dan Undang), presents an unprecedented challenge to Malaysia’s constitutional fabric.

When the bedrock of constitutional governance is embarrassed by an arbitrary exercise of power, or when a potential vacuum in institutional legitimacy threatens state harmony, the judiciary cannot afford to sit idly by.

In my view, when the constitutional framework is breached by arbitrary decisions by constitutional functionaries or its agencies, the attorney-general should ideally take proactive steps to move the Federal Court, notwithstanding the court’s constitutional judicial power gives it the right to independently issue a suo motu order (acting “on its own motion,” without any party requesting it first) and directions.

The prime question now facing our legal system is simple: must the apex court wait passively for adversarial litigants to knock on its doors, or does it possess the instant right to take judicial notice and intervene to prevent a constitutional collapse?

The answer lies in recognising the true depth of constitutional judicial power and the apex court’s inherent power to issue suo motu orders and directions.

Constitution and oath of office

For too long, the Malaysian judiciary has suffered from self-inflicted constitutional blinkers, remaining hesitant to embrace the proactive suo motu (on its own motion) jurisdiction routinely exercised by peers like the Supreme Court of India.

This reluctance stems from a fundamental misunderstanding of the judicial function under a written constitution and inability to appreciate the oath of office jurisprudence to provide immediate constitutional relief wider than the US principles of Marbury v Madison, or the Indian courts’ decision under Article 32 or 226.

The test is only to check the arbitrariness of the decision itself based on an objective lens rather than curial scrutiny of facts like the routine judicial review matters here, which can take years for all levels of the courts to exhaust their say in the matter.

Article 121(1) of the Federal Constitution vests the superior courts with the entirety of the nation’s judicial power. This provision does not exist in a vacuum. It must be read dynamically alongside the judicial oath of office, which obligates every judge to preserve, protect, and defend the constitution.

Duty to take judicial notice

The oath of office is not a mere ceremonial formality; it is a constitutional mandate that vests in the judiciary an instant right – and a solemn duty – to take judicial notice of arbitrary exercises of power that threaten constitutional dignity.

When a state’s royal legitimacy is in peril, the Federal Court possesses the absolute gumption under its inherent jurisdiction to act suo motu. It is not “judicial activism” – it is judicial dynamism, a necessary enforcement mechanism to preserve public interest and national harmony.

While the Federal Court can and should act on its own motion, the attorney-general, as the guardian of public interest, should proactively petition the Federal Court for these suo motu directions to establish an expedited, authoritative resolution.

However, a constitutional crisis of this magnitude cannot be resolved in an institutional silo. The resolution of a fundamental constitutional impasse requires a holistic, pan-Malaysian legal perspective.

Role of AG and the Bar

Therefore, any such application or proceeding before the Federal Court must feature the active participation of the statutory bodies representing the entire legal fraternity of Malaysia: the Malaysian Bar Council, Sabah Law Society and the Advocates Association of Sarawak.

The federation of Malaysia is bound together by a shared constitutional framework, and any decision altering or defining the parameters of royal succession, customary law, and judicial intervention affects the entire nation.

By participating as amicus curiae (friends of the court) or interveners, the three Bars will ensure that the resulting jurisprudence reflects the collective wisdom, integrity, and rule-of-law standards of the entire Malaysian legal profession.

We must remove our constitutional blinkers. The Seremban High Court’s ad interim injunction to preserve the status quo was a standard adversarial step, but a temporary band-aid cannot cure a systemic constitutional wound.

If the attorney-general moves the court, or if the Federal Court exercises its inherent constitutional judicial power suo motu, the primary goal must be to lay down definitive, clear-cut directions to resolve the Negeri Sembilan dispute swiftly.

Let the Federal Court, aided by the attorney-general and the three bars of Malaysia, rise to its constitutional stature, in line with the oath of office jurisprudence, and restore absolute clarity to the rule of law.

Given the profound constitutional and jurisprudential weight of a dispute involving a state ruler – where executive overreach, disputed proclamations, and coercion have been alleged – this matter cannot be left to standard, sluggish adversarial litigation.

Convoking a full coram of not less than nine Federal Court judges is essential to authoritatively declare the law on constitutional judicial power and the absolute sanctity of the oath of office.

The views expressed are those of the writer and do not necessarily reflect those of FMT.