16 Malaysia [1987] LRC (Const) Malaysia Mustapha v Mohammad and Another High Court: Tan, J. Supreme Court: Hamid, C.J., Malaya, Sani and Abdoolcader, $.C.JJ. Sth-7th and 28th August, 21st October 1985, 15th April 1986 (1) Constitutional law - Head of State - Appointment of Chief Minister — Constitutional discretion — Whether subject to judicial review — Political question — Role of Legislative Assembly — Parliamentary privilege - Validity of appointment — Appropriate remedies — Limitations of judicial review. (2) Constitutional law - Head of State within Federation of Malaysia — Appointment of Chief Minister — Discretion of Head of State — Swearing in of Chief Minister — Whether validly appointed - Head of State acting under pressure — Whether acting constitutionally — Constitution of the State of Sabah, Article 6. (3) Constitutional law — Head of State within Federation of Malaysia -— Appointment of Chief Minister - Discretion of Head of State - Relevant considerations - “‘. . . confidence of a majority of the members of the Assembly” — General Election - Nominated members — Whether Head of State entitled to consider nominated members in determining “majority” — Constitution of the State of Sabah, Article 6. Constitutional law — Written constitution — Interpretation — Appropriate authorities — Indian cases cited - Relevance of English cases on judicial review of executive action. Constitutional law — Head of State — Executive action — Duress — Appointment of Chief Minister — Whether vitiated by duress — Definition of duress. Constitutional law — Appointment of Chief Minister —- Mode of appointment — Oath of office ~ Whether sufficient evidence of appointment — Whether Instrument under Public Seal necessary — Relevance of custom and usage where Constitution silent — Notification in Gazette - “conclusive evidence” — Significance - Chief Minister (Incorporation) Ordinance, section 5. Constitutional law — Chief Minister — Dismissal - Whether Head of State empowered to revoke appointment — Constitution of the State of Sabah, Article 7 - Interpretation and General Clauses Enactment, section 29(3). (8) Constitutional law — Constitutional conventions - Applications under written Constitution — Constitutional practice of other states — Relevance — Recognition of conventions. (9) Constitutional law — Written Constitution — Interpretation — Generous interpretation — Relevance of foreign precedents. 4 (5 © 7 °Mustapha v Mohammad and Another 17 In the early hours of 22nd April 1985 (at about 3.40 a.m.) following a General Election for the 48 elected seats in the Legislative Assembly of Sabah, a State within the Federation of Malaysia, the plaintiff, the leader of the United Sabah National Organisation party (USNO), with others, entered the Istana, the residence of the first defendant, the Head of State of Sabah (Yang di-Pertua Negara Sabah). There were discussions, also involving certain State officers, in the presence of the Head of State. Although the result of the General Election had not been officially announced at that time, it was known unofficially that USNO had won 16 seats, Berjaya 6 seats and the Parti Bessatu Sabah (PBS), led by the second defendant, 26 seats. Supporters of USNO and Berjaya sought to persuade the Head of State that the power to appoint nominated members of the Assembly could be used to increase the strength of those parties and support the appointment of the plaintiff as Chief Minister under the Constitution of Sabah, Article 6, the relevant provisions of which provide as follows: “6(1) There shall be a State Cabinet to advise the Yang di-Pertua Negara in the exercise of his functions. (2) The Yang di-Pertua Negara shall appoint as Chief Minister a member of the Legislative Assembly who in his judgment is likely to command the confidence of a majority of the members of the Assembly and shall appoint the other members [of the Cabinet] . . . in accordance with the advice of the Chief Minister from among the members of the Assembly: Provided that if an appointment is made while the Legislative Assembly is dissolved a person who was a member of the last Assembly may be appointed but shall not continue to hold office after the first sitting of the next Legislative Assembly unless he is a member thereof.” The Head of State gave evidence at the trial herein reported that at the relevant time he was very tired and unable to concentrate, and that he was shown a paper on which he read: “We will have no confidence in you and will remove you”. This, he said, had frightened him: initially regarding it as a threat to remove him as Head of State, he later considered it as a threat to his, life. He gave evidence that while he knew that he could have summoned police officers to remove his visitors, he wished to avoid the public disorders and possible bloodshed which might ensue. At about 5.30 a.m. the plaintiff was sworn in as Chief Minister in the presence of the Head of State; a video recording of the ceremony was made by the husband of a supporter of the plaintiff. Later that day the Head of State sent a letter to the plaintiff purporting to revoke his appointment as Chief Minister. At about 8 p.m. the second defendant was sworn in as Chief Minister, this ceremony also being recorded on video. This appointment was confirmed by a vote of confidence in the second defendant as Chief Minister, passed by the Legislative Assembly on 30th May 1985 and this was confirmed by the Assembly on 3rd August 1985 (both meetings being boycotted by the plaintiff and his supporters). The plaintiff brought this action in the High Court in Borneo, claiming declarations that the revocation of his appointment as Chief Minister, and the appointment of the second defendant to that post, were null and void, and that he (the plaintiff) was the Chief Minister, with an injunction to restrain the second defendant from continuing to act in that post. The defendants raised a preliminary objection to the jurisdiction of the court, arguing that the action raised a purely political question calling for a political solution beyond the jurisdiction of the court. The objection was argued on a variety of points:18 Malaysia [1987] LRC (Const) (a) The issues raised were not justiciable, concerning the exercise by the Head of State of his constitutional discretion in appointing a Chief Minister: the credibility and good faith of the Head of State would be in question and he should not be required to give evidence upon these. (b) The High Court was not the appropriate forum, applying the principle forum non conveniens. The issues raised were essentially political, to be settled ultimately by the Legislative Assembly. (c) The remedies sought were not issues upon which the court could adjudicate — for example, a declaration that “the plaintiff is the Chief Minister” involved a political, not a legal right. (a) Subject to initial appointment by the Head of State in his discretion, the position of the Chief Minister was a privilege of the Legislative Assembly which it had exercised by its vote of confidence on 30th May. The court should decline jurisdiction as a matter of principle. (c) The Federal and State Constitutions of Malaysia enshrined the principle of parliamentary democracy, based on the separation of powers. The court should avoid any enquiry which might lead directly or indirectly to a conflict with the legislature. (8) The issues raised were ex post facto and no longer justiciable. In the High Court, on the preliminary objection: HELD: Objection dismissed; action to proceed. (1) (a). The issues raised by the plaintiff, including his alleged dismissal as Chief Minister, raised legal and constitutional questions which were justiciable and within the jurisdiction of the court. It was conceded for the plaintiff that the court had no jurisdiction to decide any question as to how the Head of State had exercised his discretion in appointing the Chief Minister; that was non-justiciable. (Ningkan v Tun Abang Haji Openg (1966) 2 MLJ 187 appiied.) But here the defendants argued that the appointment of the Chief Minister was null and void because no instrument of appointment had been given and because the plaintiff had been sworn in as a result of conspiracy, misrepresentation, fraud and duress. The issue was therefore not how the Head of State had exercised his discretion but whether in law there had been an appointment, and this was justiciable. It would be regrettable, but necessary, that the Head of State give evidence of the relevant events. (See pp.28-29 post.) (>) The questions raised by the plaintiff were partly, but not wholly, political in nature; they raised issues of the Federal and State Constitutions and the application of legal principles. (See pp.32-33 post.) (©) The central issue of the appointment of the plaintiff as Chief Minister involved a legal right which was justiciable and it was not incompetent for the plaintiff to seek appropriate relief by way of declaration and injunction. (See pp.34-36 post.) (d) The right to be Chief Minister was not merely a political right, dependent upon commanding the confidence of the Legislative Assembly, but also involved a legal right. Resolutions of the Assembly clearly could not bind the courts on matters within their jurisdiction. The action raised the issue of the appointment of the Chief Minister, a matter separate and distinct under the State Constitution from the question of the confidence of the Assembly and was therefore not a matter of parliamentary privilege. (See pp.42-43 post.) (e) The Federal Constitution, Article 72, prevented the courts questioning “the validity of any proceedings in the Legislative Assembly”, but this action raised no challenge to the validity of the relevantMustapha v Mohammad and Another 19 resolutions in the Assembly. The proper function of the courts was to maintain the vital principle of separation of powers in a parliamentary democracy. However, the courts will not shun to decide seemingly political questions when the Constitution or a statute had to be interpreted to answer them. (See pp.43-44 post.) (f) A court would not try hypothetical or academic cases, but the issues raised in this action fell into neither category. (Glasgow Navigation Cov Iron Ore Co [1910] AC 293, HL, and Tindall v Wright (1922) 38 TLR 521 followed.) (See p.44 post.) The defendants appealed to the Supreme Court of Malaysia against the decision of the High Court on the preliminary objection. HELD: Appeal dismissed; action to proceed. (1) The appointment, and the subsequent purported revocation of the appointment, of the respondent as Chief Minister raised legal and constitutional questions within the jurisdiction of the court for determination. The mere fact that litigation sought to protect a political right did not mean that it raised a political question. Whether the matter raised a political question committed by the Constitution to another branch of government was in itself a matter for judicial determination because the Constitution made the courts the ultimate interpreters of the Constitution. No privilege of the Legislative Assembly was invoked; motions in the Assembly might be political ratification or rejection of an appointment as Chief Minister, but they could not affect the primary legal and justiciable questions. The judge had exhaustively examined the arguments and his reasons for rejecting the preliminary objection were correct. (See pp.45~46 post.) ‘The action then proceeded to trial before Tan, J. The defendants alleged that the plaintiff's appointment as Chief Minister had been procured by conspiracy, misrepresentation, fraud and duress, and that it had been validly revoked by the Head of State before the appointment of the second defendant as Chief Minister. Considerable conflicts of evidence emerged in the evidence given by a number of witnesses on each side, especially as to the events of the night of 22nd April 1985 at the Istana. The defendants, by agreement, presented their case first. The Head of State, the first defendant, gave evidence and was cross-examined at length. The defendants denied that the plaintiff had entered the Istana at the invitation, or with the permission, of the Head of State, and that the latter had already decided to appoint the plaintiff as Chief Minister before his arrival Applying the criminal standard of proof beyond reasonable doubt so that he had to be sure, Tan, J., rejected as unreliable the evidence of certain witnesses for the plaintiff and accepted the evidence of the Head of State, the first defendant (despite certain inconsistencies which had emerged). (The facts, with his findings on the evidence, are set out in the judgment of Tan, J., at pp.46-87 post.) HELD: Action dismissed. (2) The plaintiff had not been validly appointed as Chief Minister by the Head of State. In swearing in the plaintiff, the Head of State had not exercised his judgment under Article 6(3) of the Constitution (set out at p.90 ante.) He did not take into account the results of the General Election, for he was still waiting for the official result to be declared. The evidence supported the conclusion that there had been a conspiracy to effect the entry of the plaintiff into the Istana and to persuade the Head of State to appoint him as Chief Minister. The swearing-in resulted solely20 Malaysia [1987] LRC (Const) @) @ from the cumulative effect of the pressure and threats operating on the mind of the Head of State when he was tired, frightened and confused and unable to think clearly. The swearing-in was therefore null and void and of no legal effect. It was unnecessary to consider whether the appointment was ultra vires and contrary to legality, rationality and procedural propriety, as the second defendant had argued. It fell within the jurisdiction of the court to decide whether a judgment had been made by the Head of State under the Constitution, Article 6(3), although, if such a judgment had been made, even if improperly (which was not the case here), then the authorities appeared to indicate that the matter was not reviewable. (See pp.87-92 and 106 post.) The events of 22nd April 1985 at the Istana were a blatant travesty of the belief in the principles of parliamentary democracy. When a Chief Minister was to be appointed, “the Head of State must be allowed to make his judgment quietly, independently and in a dignified manner, as intended by the Constitution.” (See p.126 post.) In appointing a Chief Minister, the Head of State was required by Article 10(2)(©) of the Constitution to act in his discretion and by Article 6(3) to appoint the member of the Legislative Assembly who in his judgment was likely to command the confidence of a majority of the members thereof. In making his decision, the Head of State had to take account of the position at the time, when, following a General Election, the nominated members had yet to be appointed; indeed, they could be appointed only on the advice of a Cabinet which could be formed only after the appointment of a Chief Minister. Nor could the Head of State take nominated members into account for the purpose of inflating the strength of a party with a minority of seats, so as to give it a majority. The judgment of the Head of State was not subject to judicial review provided that the constitutional validity, as distinct from the propriety, of his decision was not called into question. Nothing in the Constitution required the Head of State to take into account how the voting was likely to go in the Legislative Assembly; he was solely concerned with making his judgment on material which he considered relevant. In circumstances known to the parties when the plaintiff was “sworn in” as Chief Minister, it was clear that the coalition which he led had not won a majority in the Legislative Assembly and if he had then appointed the plaintiff as Chief Minister the Head of State must necessarily have taken into account the six nominated members yet to be appointed. As this would not have been in accordance with the Constitution, but contrary to Article 6(2), any such appointment would therefore have been invalid. Everything in the Constitution indicated that “members of the Assembly” in Article 6(3) bore a different meaning from the same phrase in Article 14, which includes nominated members. Nominated members were not expressly included in Article 6(3) precisely because they could not be in existence at the time that the Chief Minister was to be appointed after an Election; this accorded with the purpose of General Elections under a party system of government, viz., that the majority returned by the electorate should form the government. Otherwise the will of the electorate could be frustrated. (See pp.121-125 post.) In the interpretation of a written Constitution to determine whether a decision had been made in accordance with constitutional requirements, Indian precedents on the Indian Constitution were relevant, as distinct from English precedents concerning public law principles regarding judicial review of executive action (whether based on the exercise of a prerogative or a statutory power). The power conferred on the Head ofMustapha v Mohammad and Another 21 () (6) ” State by Article 6(3) of the Constitution to appoint a Chief Minister was a constitutional, not a prerogative, power. The propriety of a decision by the Head of State was not open to judicial review, but the court could determine whether the decision contravened or exceeded any constitutional provision. State of Rajasthan v Union of India (1977) SC 1361 and Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374, HL considered. (See pp.87-93 post.) Where it was alleged that a decision of the Head of State in appointing a Chief Minister was vitiated by duress, the appropriate test of duress was neither the criminal law definition of duress, since no crime was alleged, nor the definition of “coercion” in contract law provided by the Contracts Act 1950, sections 14-15, since no contractual obligation was alleged. No other appropriate test had been established by the authorities and the dictionary definition of duress — as “constraint”, “compulsion” etc. — and common law principles were therefore applicable. The evidence was insufficient to establish the defence of duress in the sense of unlawful constraint, imprisonment or threat of imprisonment, loss of life or limb or physical violence. (See pp.92-94 post.) The taking of the oath of office as Chief Minister was necessary but not sufficient to constitute a valid and complete appointment. Article 8 of the Constitution required that a member of the Cabinet take the oath before exercising the functions of his office; the only possible interpretation of this provision was that the taking of the oath was required after appointment. This conclusion was confirmed by the words of the oath itself, which did not constitute an appointment under the Constitution. ‘The taking of the oath by the plaintiff therefore did not constitute a valid appointment as Chief Minister. The appointment of a Chief Minister had to be signified under the Constitution by a signed Instrument of Appointment under the Public Seal. This conformed with the unbroken tradition, custom or usage in Sabah. Although such an Instrument had been expressly required under the former Royal Instructions, its omission from the Constitution did not mean that it was no longer required but merely that express requirement was no longer necessary in view of established tradition. This conformed with the position under the Constitution of Malaysia. (See pp.107-110 post.) Notification in the Gazette was conclusive evidence of the appointment of a person as Chief Minister (under the Chief Minister (Incorporation) Ordinance, Cap. 23, section 5, set out at p.111 post). This was an evidential provision, to be construed as referring to the fact, with any procedural requirements, of the appointment, as distinct from the conclusiveness of the validity of the appointment. It did not have the effect of shifting the burden of proof. (See pp.111-113 post.) Per curiam. When a valid appointment of a Chief Minister had been made, the Head of State had no power to dismiss him as he did not hold office at the pleasure of the Head of State. Article 7 of the Constitution (set out at p.114 post) required a Chief Minister who had ceased to command the confidence of a majority of the members of the Legislative Assembly to tender the resignations of the members of his Cabinet unless, at his request, the Head of State had dissolved the Assembly. Article 7(3) provided that a member of the Cabinet other than the Chief Minister held office at the pleasure of the Head of State. Although the Interpretation and General Clauses Enactment 1963, section 29(3) (set out at p.113 post), provided that power conferred by any State law to make an ‘appointment included a power to dismiss any person appointed, this was subject to the provision “unless the contrary intention appears” and theMalaysia [1987] LRC (Const) Constitution set out a contrary intention on this point. The Head of State could not revoke an appointment of a Chief Minister before the latter had had an opportunity to seek the support of the majority of members of the Legislative Assembly. On similar legislative provisions the High Court of Sarawak had rightly concluded, in Ningkan v Tun Abang Haji Openg (1966) 2 MLJ 187, that the Governor had no power to dismiss the Chief Minister in any circumstances. Adegbenro v Akintola [1963] AC 614, PC, distinguished. (See pp.113-118 post.) Constitutional conventions established in the experience of other nations with constitutions based on the Westminster model, if they are proved to exist, may be invoked by the court as an aid and background for the interpretation of a written Constitution like that of Sabah. However, this could only have arisen where the court had found it necessary to refer to external aid and, in this case, it was unnecessary to do so. Reference re Amendment of the Constitution of Canada (1982) 125 DLR (3d) 1 considered. Even if the three questions proposed by Jennings for the recognition of constitutional convention (The Law and the Constitution, Sth ed., 1959, p.136) were applied, there was no evidence of even a single precedent showing the existence of the convention asserted by the defendants, to the effect that, after a General Election, the Head of State must select as Chief Minister the leader of the party which holds a majority of the seats in the Legislative Assembly. It was relevant that in Sabah, as distinct from the other States of the Malaysian Federation, the Constitution provided for the appointment of nominated members to the Assembly. (See pp. 118-120 post.) (9) A written Constitution was sui generis, calling for its own principles of interpretation: it ‘must be construed broadly and not in a pedantic way” (per Raja Azian Shah, Ag.L.P., in Dato Mentheri Othman bin Baginda v Dato Ombi Syed Alwi bin Syed Idrus (1981) 1 MLJ 29). The particular provisions of a Constitution may obviate resort for guidance in its interpretation to external sources. As a living piece of legislation, the provisions of a Constitution must be construed broadly and’ not pedantically, as a whole and generously. The judgment of the Privy Council in Adegbenro v Akiniola [1963] AC 614 did not lay down that the literal approach should be used as a general principle of constitutional construction: in that case there were found no compulsive reasons to depart from it. (See pp.107-108, 122-123, 125 post.) 8) Cases referred to in judgments: Adegbenro v Akintola and Aderemi [1963] AC 614, [1963] 3 WLR 63, [1963] 3 ‘AIl ER 544, [1962] 1 All NLR 465, [1962] WNLR 203, PC Attorney-General of the Commonwealth, ex relatione McKinlay v Commonwealth of Australia (1975) 135 CLR 1,7 ALR 593 Attorney-General of St. Christopher, Nevis and Anguilla v Reynolds [1980] AC 637, [1980] 2 WLR 171, [1979] 3 All ER 129, PC Bolivia, Republic of, v Bolivian Navigation Co (1876) WR 361 Bradlaugh v Gossett (1884) 12 QB 27 Burdett v Abbott (1811) 14 East 148, 104 ER 501 Canada, Reference re Amendment of the Constitution of (1982) 125 DLR (3d) 1 Council of Civil Service Unions v Minister for the Civil Service [1985] LRC (Const) 948, [1985] 1 AC 374, [1984] 3 WLR 1174, [1984] 3 All ER 935, HL Dato Menteri Othman bin Baginda and Anor v Dato Ombi Syed Alwi bin Syed Tdrus (1981) 1 ML3 29 Dinesh Chandra Pande v Chaudhury Charan Singh and Others AIR 1980 Delhi oMustapha v Mohammad and Another 23 114 Fan Yew Teng v Government of Malaysia (1976) 2 MLJ 262 Glasgow Navigation Co v Iron Ore Co [1910] AC 293, HL Har Sharan Varma v Chandra Bhan Gupta and Others AIR 1962 All 301 Howard v Pickford Tool Co Ltd [1951] 1 KB 417, CA Hussein v Hussein [1938] P 159, [1938] 2 All ER 344 Italy, Republic of, v Hambros Bank Lid [1950] Ch 314, [1950] 1 All ER 430 Jogendra Nath Hazarika v State of Assam AIR 1982 Gauhati 25 King, The, v Graham-Campbell, ex parte Herbert (1935] 1 KB 594, [1934] All ER Rep 681 King, The, v Legislative Committee of the Church Assembly, ex parte Haynes-Smith [1928] 1 KB 411 Madan Murari v Choudhuri Charan Singh AIR 1980 Cal 95 Malone v Metropolitan Police Commissioner [1979] 1 Ch 344, [1979] 2 WLR 700, [1979] 2 All ER 620 Merdeka University Berhad v Government of Malaysia (1981) 2 MLJ 356 Minister of Home Affairs v Fisher [1980] AC 319, [1979] 2 WLR 889, [1979] 3 AILER 21, PC Ningkan v Government of Malaysia (1968) 1 MLJ 119 Ningkan v Tun Abang Haji Openg and Tawi Sli (1966] 2 MLJ 187 Nokulsana Singh v Kishang Keising AIR 1981 Gauhati 47 ‘Ong Ah Chuan v Public Prosecutor [1981] AC 648, [1980] 3 WLR 855, (1981) 1 MLJ 64, PC Rajasthan, State of, v Union of India ATR 1977 SC 1361 Shrikishen v State of Hyderabad AIR 1956 Hyderabad 186 Stockdale v Hansard (1839) 9 Ad and E 1, 112 ER 1112 Thomas v Attorney-General of Trinidad and Tobago [1982] AC 113, [1981] 3 WLR 601, PC Tindall v Wright (1922) 38 TLR 521 Universe Tankships Incorporated of Monrovia v International Transport Workers Federation [1983] 1 AC 366, [1982] 2 WLR 803, [1982] 2 All ER 67, HL Legislation referred to in judgments: Sabah: Constitution, Articles 1, 6,7, 8, 10, 14, 72 Chief Minister (Incorporation) Ordinance, Cap. 23, section 5 Contracts Act 1950, sections 14 and 15 Evidence Act 1950, sections 4(3), 56, 57(1), 114(g) Interpretation and General Clauses Enactment 1963, sections 21, 29(3) and 54 Legislative Assembly (Privileges, Immunities and Powers) Enactment 1963 Malaysia: Federal Constitution, Articles 32(1), 43(1), 53 and 63 Constitutions of Johore and Perlis Sarawak: Constitution, Article 7(3) Interpretation Ordinance, section 21 India: Constitution, Articles 13, 74, 75, 163, 164, 226, 356(1) Trinidad and Tobago: Constitution, sections 2, 84, 93, 99, 102 Police Service Act 1965 Police Service Commission Regulations 1966 Western Nigeria: Constitution, section 33(10)24 Malaysia [1987] LRC (Const) United Kingdom: a Parliamentary Oaths Act 1866 Other sources referred to in judgments: Goff and Jones, The Law of Restitution Jennings, The Law and The Constitution, 5th ed. 1959, p.136 Jowitt’s Dictionary of English Law Oxford English Dictionary Pfeffer, “This Honourable Court”, Indian Report (1967), p.1 Zamir, The Declaratory Judgment (1962), p.42 Action The plaintiff sued for declarations that the revocation of his appointment as Chief Minister was ulira vires, null and void under the Constitution of the State ¢ of Sabah; that he was the Chief Minister; and that the first defendant’s act as Head of State in appointing the second defendant as Chief Minister was ultra vires, null and void; with an injunction to restrain the second defendant from exercising the powers of and/or acting as Chief Minister (etc.) In the High Court Tan, J., dismissed the preliminary objection to the jurisdiction by the defendants (see pp.24-44 post) and the Supreme Court dismissed their appeal (see pp.44-66 post). Tan, J., then proceeded to try the case and his judgment, in which the facts are set out fully, is reported below (see pp.46-126 post). R. Kidwell,Q.C., S. Rave and A. R. Rouse for the plaintiff. D. Puthucheary, H. Luping, State Attorney-General, Sabah, and J. D. Bosi, State Counsel, Sabah, for the first defendant. D. Puthucheary and J. Golokin for the second defendant. e 28th August 1985 TAN, J.: The defendants, through their learned senior counsel, have raised a preliminary objection, that the Court has no jurisdiction to hear this action and grant the reliefs sought by the plaintiff. The grounds for the objection are as follows:- (1) That the issues raised by the plaintiff are not justiciable issues. (2) That this Court is not the right forum for hearing the plaintiff's g complaint, and that the principle of forum non conveniens applies. (3) That the declarations and injunction sought in the Statement of Claim are not issues on which this Court will grant declaratory orders or injunctions. That the appointment of the Chief Minister is for the Yang Di Pertua Negeri and subsequent to such appointment, the position h of the Chief Minister is a privilege of the Legislative Assembly, and this privilege has been exercised by the Legislative Assembly by a vote of confidence on 30th May 1985. Subsequent to that, on 3rd August 1985, matters in relation to the appointment of the Chief Minister had been decided by the Legislative Assembly, and therefore the Court should take cognisance of these and decline i jurisdiction as a matter of principle. 4Mustapha v Mohammad and Another (Tan, J.) 25 (5) That the jurisdiction of this Court to decide on issues raised is ousted as a result of the resolutions of 30th May 1985 and 3rd August 1985 by Article 72 of the Federal Constitution. (6) That the principle of parliamentary democracy enshrined in the Federal and Sabah State Constitutions is based on the separation ‘of powers and therefore this Court should avoid any enquiry directly or indirectly which might lead to a conflict with the Legislative Assembly. (7) That the issues raised in the Statement of Claim are now ex post facto and no longer issues that can be justiciable. Learned senior counsel for the plaintiff has contended otherwise. The pleadings disclose that there are issues of fact and law. The Court has to decide whether, considered in the light of arguments of learned counsel for the parties, such issues are justiciable and it is within the jurisdiction of the Court to try them. The following facts are not in dispute:- (a) The plaintiff on the 22nd April, 1985 following the holding of a general election for the Legislative Assembly of the State of Sabah, took an oath before the first defendant in the form prescribed for an oath to be subscribed by the Chief Minister of Sabah, as a member of the State Cabinet. (b) The results of the general election are that Parti Bersatu Sabah (PBS) headed by the second defendant secured 25 seats to which was subsequently added one more seat won by Ignatius Melanjum, making 26 seats; United Sabah National Organisation (USNO) led by the plaintiff 16 seats; and Parti Berjaya 6 seats. The number of elected seats is 48. At the outset, I would deal with one matter. It was submitted by learned senior counsel for the plaintiff that, on a preliminary matter, the Court should proceed on the basis that the facts alleged by the plaintiff are, or are deemed to be, correct. This contention was challenged by learned senior counsel for the defendants, who argued that it was unnecessary for the Court to make findings of fact on relevant issues in considering the matters comprised in the grounds of objection. In this connection, it is to be observed that only such questions of law can properly be raised as preliminary issues as must necessarily arise in the action: see Republic of Bolivia v Bolivian Navigation Company (1876) WR 361. In this respect, it need hardly be mentioned that some issues of law concerned in this action may possibly arise as a result of issues of fact raised. Accordingly, I shall adopt the same approach as in the Republic of Bolivia’s case (supra). The first ground of objection is that the issues raised by the plaintiff are not justiciable issues. In this connection, learned senior counsel for the defendants has not specified what these issues are, but they must necessarily be issues raised by the pleadings. In this connection, consideration of the pleadings would appear to indicate that the main legal issues that would necessarily arise in the action would include the following: (1) The issue regarding the alleged appointment of the plaintiff as26 Malaysia [1987] LRC (Const) Chief Minister. This would include a finding whether, in law, the plaintiff was appointed which, in turn, would involve consideration of the issue relating to the circumstances regarding the taking of the oath by the plaintiff. (2) The issue relating to what was alleged by the plaintiff as his dismissal by the first defendant, including the issue whether the latter has any power of dismissal. (3) The issue regarding the appointment of the second defendant as Chief Minister, which is related to the first two issues. (4) The issue as to whether the discretionary power of appointment of the first defendant is subjective or objective in nature. (5) The issues of conspiracy, misrepresentation, fraud and duress raised by the Defence in connection with the plaintiff's claim of appointment. The issue as to whether an instrument of appointment is necessary to render an appointment of the Chief Minister legally effective. (6 This list is not exhaustive, but is an indication as to what are included in the main issues. Learned senior counsel for the plaintiff has submitted that, in connection with the preliminary objection, that appointment of the plaintiff should not be an issue to be considered as this is not raised in the Statement of Claim. However, learned senior counsel for the defendants has stressed that this issue is central to the case for the defendants, for if there is no appointment, no question of any dismissal of the plaintiff would arise. In this connection, as stated and for the reason given, I proceed on the basi that the issue of the alleged appointment of the plaintiff is an issue which, on the pleadings, would necessarily arise in the action and thus should form a matter of consideration in relation to, in particular, this ground of objection. In connection with this ground, learned senior counsel for the defendants has submitted that, as the Statement of Claim has raised the issues of how the first defendant appointed, or had not appointed the Chief Minister, this would require him, as Head of State, to give evidence as to the state of his mind, or whether he had acted in good faith, or had been influenced by extraneous matters. This would lead to an unseemly state of affairs, as he would be examined on his powers and how he exercised them, especially on matters touching on his personal capacity on matters of State. Hence, the Court will be called upon to decide on the credibility and state of mind of the Head of State, and whether he had acted in good faith on matters raised in the Defence. It was submitted that these are not justiciable issues, in the same manner that His Majesty the Agong’s action in making a Proclamation of Emergency is not justiciable. Further, to say that such matters are justiciable is to open the floodgates to every official act of the Head of State being questioned; and this would reduce his high status, and also reduce his status to that of an ordinary citizen. In this connection, the case of Stephen Kalong Ningkan v Government of Malaysia (1968) 1 MLJ 119 was cited. Part of the headnote reads: “In his second action in the High Court at Kuching the petitioner claimed (a) that the proclamation of a State of Emergency, being madeMustapha v Mohammad and Another (Tan, J.) 27 on the advice of the Federal Cabinet, was null and void in that it was not made bona fide but in fraudem legis, and (b) that the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966, was on that account null and void. On 2nd December 1966 Pike, C.J., (Borneo) holding inter alia that an action to declare a Federal law invalid required leave of a judge of the Federal Court before commencement of proceedings, by virtue of Article 4 of the Federal Constitution, ordered certain paragraphs in the statement of claim struck out (1967) 1 MLJ 46, On 20th February 1967 leave was given by the Lord President for institution of proceedings against the Government of the Federation of Malaysia for a declaration that the said Act was invalid and/or that sections 3, 4 and 5 thereof were invalid as being ultra vires the Federal Government. In his petition the petitioner alleged that no grave Emergency had arisen in the State of Sarawak which could not be effectively dealt with under the previous proclamation of emergency made on 7th September 1964, that the Federal Cabinet well knew that no such emergency existed “whereby the security or economic life of Sarawak was threatened”; that the proclamation was in fraudem legis in that it was made not to deal with grave emergency whereby the security or economic life of Sarawak was threatened but for the purpose of removing the petitioner from his lawful position as Chief Minister of Sarawak, and that the amendment of clauses (5) and (6) of Article 150 of the Federal Constitution were null and void as ultra vires the Parliament and contrary, not only to Article 150 and Article 161E(2) of the Federal Constitution, but also the entrenched provisions in Article 41 of the Sarawak Constitution and relevant provisions in the Malaysian Act 1963.” In that case, it was held by the Federal Court, by a majority, inter alia, that (1) it is incumbent on the court to assume that the Government was acting in the best interests of the State and to permit no evidence to be adduced otherwise; (3) the circumstances which bring about a state of emergency are non-justiciable. In his judgment, Barakbah, L.P., stated (at p.122): “In my view the question is whether a court of law could make it an issue for the purpose of a trial by calling in evidence to show whether or not His Majesty the Yang di-Pertuan Agong was acting in bad faith in having proclaimed the emergency. In an act of the nature of a Proclamation of Emergency, issued in accordance with the Constitution, in my opinion, it is incumbent on the court to assume that the Government is acting in the best interest of the State and to permit no evidence to be adduced otherwise. In short, the circumstances which bring about a Proclamation of Emergency are non justiciable.” ‘The following passage appears in the judgment at the same page:~ “In my opinion the Yang di-Pertuan Agong is the sole judge and once His Majesty is satisfied that a state of emergency exists it is not for the court to inquire as to whether or not he should have been satisfied.” ' It was submitted that just as the action of the Agong in making a28 Malaysia [1987] LRC (Const) proclamation of an emergency is of such importance and central to the security of the country that it is not justiciable; so the appointment of a Chief Minister here is so central and vital to the political life of the State that it should not be justiciable. It was also emphasized that hence the matter of the exercise of the discretionary power of the first defendant as Head of State in the appointment of a Chief Minister should not be justiciable. Learned senior counsel for the plaintiff has contended that this is not a case where the Court cannot constitutionally interfere in respect of the matters complained of by the plaintiff, as in the Stephen Kalong Ningkan’s case (supra). It was emphasised that, as far as the plaintiff was concerned, his case is based on what he contends is unlawful dismissal, with all the attendant consequences, as reflected in the reliefs sought; and on the question of dismissal, this does not involve the exercise of discretion of the first defendant as Head of State, since this is a constitutional and legal issue which has been adjudicated upon in the case of Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli (1966) 2 MLJ 187 without objection and hence this Court has jurisdiction to try such an issue. In this connection, I had earlier listed out, among the main issues to be tried in this action, that relating to the alleged dismissal of the plaintiff as Chief Minister. In my view, the issue of dismissal and the applicability of the Stephen Kalong Ningkan’s case (1966) (supra) and alleged legal power of dismissal as pleaded in the Defence are issues that are legal and constitutional in nature, and are therefore, in my opinion, issues that are justiciable and within the jurisdiction of the Court to try them. As to the issue of appointment, an important point to consider, in my view, is whether the issues to be tried include any issue giving rise to an examination as to how the first defendant had exercised his discretion on the matter of an appointment of the Chief Minister, and the factors he took into consideration in exercising such a discretion. If such an issue is involved, then, on the authorities, including that of the Stephen Kalong Ningkan’s case (1968) (supra), it would appear that such an issue is not justiciable and the Court has no jurisdiction to try it. Indeed, this is conceded by learned senior counsel for the plaintiff. However, in my view, the issue regarding the alleged appointment of the plaintiff as Chief Minister does not appear to be one of such a nature as had just been mentioned. The plaintiff alleges that he has been lawfully and constitutionally appointed, but this is denied by the defendants who contend that there was no appointment on the grounds that no instrument of appointment had been given and because the oath of office subscribed by the plaintiff resulted from conspiracy, misrepresentation, fraud and duress and hence any appointment is null and void, and can be annulled, rescinded, rectified, revoked, and dismissal can lawfully be made. Hence, in my opinion, the issues on appointment are not those regarding whether the discretion of the first defendant as the Head of State has been exercised lawfully and constitutionally; or what factors the first defendant took, or should take, into account in exercising his discretion on the appointment of the Chief Minister. Rather, they are issues as to whether there was in law an appointment, and this is related to the issues regarding the validity of the oath taken by the plaintiff; and whether the taking of the oath implieso a Mustapha v Mohammad and Another (Tan, J.) 29 appointment. Hence, in my opinion, for the purposes of these proceedings, the principles established by the Stephen Kalong Ningkan’s case (1968) (supra) are inapplicable to the issue of appointment here. Accordingly, I am of the view, and rule, that, on the pleadings, the issue of appointment is justiciable and the Court has jurisdiction to try this issue. I have not lost sight of the inevitability of the first defendant as Head of State having to give evidence during the course of the trial on the issue of appointment. It is a matter of regret that this has to occur, but in the circumstances, unpleasant though the matter is, there appears to be no alternative but to face it. The first ground of objection, therefore, fails. The second ground of objection is that this Court is not the right forum for hearing the plaintiff's complaint, and that the principle of forum non conveniens applies. It was emphasised that the issue of who should be appointed the Chief Minister and enjoy the confidence of the Legislative Assembly (L.A.) is a political one, and that the proper forum to decide this is the L.A.; and that this issue could have been finally and decisively decided by the L.A. at its meetings held on 30th May and 3rd August 1985; but the plaintiff and his followers chose to boycott these meetings. At this juncture, I would say a word about the resolution (Ex. D1) passed by the L.A. at its meeting on 3rd August 1985. As rightly observed by learned senior counsel for the plaintiff, this resolution does not form a subject- matter of the Defence as yet, but arguments on it had been made by both parties. No doubt, procedurally, the matter would be put on a proper footing in due course. In support of the second ground, learned senior counsel for the defendants has cited three authorities. I shall deal with them in turn. The first authority is the case of Fan Yew Teng v Government of Malaysia (1976) 2 MLJ 262 and it was contended on that authority, that once a L.A. has dealt with a matter, in this case the matter of the appointment of the Chief Minister and who in that capacity commands the confidence of the majority of members, the Court should not interfere directly or indirectly, in the same matter. With respect, as a proposition, this in my view is obviously too wide, as the authority of the L.A. must necessarily be confined to matters within its constitutional and legal powers and functions. It is pertinent to observe that it is quite clear, under the Constitution of the State of Sabah (the State Constitution), the authority and function of the appointment of the Chief Minister after a general election is vested in the Head of State who, in performing that function, must appoint as Chief Minister a member of the L.A. who in his judgment is likely to command the confidence of a majority of the members of the L.A. (Article 6(3) of the State Constitution). I have not lost sight of the issue relating to the expression “majority of the members of the Assembly”, but in my view, this is not a relevant issue in these proceedings. Under the State Constitution, whether the choice of the Chief Minister is the correct one can be tested in the L.A. which, if that august body disagrees with such choice, is at liberty to pass a motion of no confidence in the Chief Minister as appointed by the Head of State. Accordingly, in my view, in this respect, the authority and functions of the Head of State and those of the L.A. as conferred by the State Constitution, are separate and distinct. In my opinion, under the State Constitution, it is30 Malaysia [1987] LRC (Const) no part of the authority and function of the L.A. to appoint the Chief Minister, which falls exclusively within the powers and function of the Head of State. If, subsequently, a vote of no confidence is passed by the L.A. against the appointee, then it is open to him to either advise the Head of State to dissolve the L.A. and call for a fresh general election; or to tender his resignation to the latter (see Articles 7(2) and 10(2)(b) of the State Constitution), although the Head of State has discretionary power to withhold consent to a dissolution. ‘The headnote in the Fan Yew Teng’s case (supra) reads: “The plaintiff applied for various declarations arising out of his conviction for sedition and a fine of $2,000 imposed on him in the High Court (1975) 1 MLJ 176. A motion had been introduced into the Dewan Ra’ayat that the question whether the plaintiff has become disqualified for membership of the House be referred to the Committee of Privileges. The plaintiff sought declarations in effect that he had a right to exhaust his legal right of appeal and to petition the Yang Di-Pertuan Agong for a pardon before the Dewan Ra’ayat could take a decision in his disqualification; and that it was only the Dewan Ra’ayat and not the Committee of Privileges which could go into the question of his disqualification. Held: (1) the decision on the issue of disqualification is for the Dewan Ra’ayat to take and when taken it is final and cannot be questioned in any court; (2) the court cannot interfere with the right of the Dewan Ra’ayat to decide the question of the plaintiff being disqualified from membership and the reliefs sought by the plaintiff are outside the jurisdiction of the court; (3) the Government of Malaysia cannot be a proper defendant from whom the reliefs sought, even if available, could be made, and therefore the Government was not a necessary party to the proceedings.” That case concerns the question of whether the plaintiff has become disqualified for membership of the Dewan Ra’ayat, and in this connection, Articles 53 and 63 of the Federal Constitution provide as follows:- “Article 53. Decisions as to disqualification. If any question arises whether a member of a House of Parliament has become disqualified for membership, the decision of that House shall be taken and shall be final: Provided that this Article shall not be taken to prevent the practice of the House postponing a decision in order to allow for the taking or determination of any proceedings that may affect the decision (including proceedings for the removal of the disqualification).” “Article 63. Privileges of Parliament. (1) The validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court. (2) No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in any proceedings of either House of Parliament or any committee °a Mustapha v Mohammad and Another (Tan, J.) 31 thereof.” In his judgment, Chang Min Tat, J., said (at p.266): “The issue in his application is the right of the plaintiff to sit in the Dewan Ra’ayat and, in my view and with respect, this issue comes fully within the compass of Article 53 and Article 63. The issue therefore involves the proper and reasonable construction of these Articles. The language is plain and unambiguous. Giving the words therein their plain and grammatical meaning, the decision on this issue is for the House to take, it is final when taken and the validity of the proceedings cannot be questioned in any court. These Articles can admit of no other construction.” Thus, in that case, it was held that the Court had no jurisdiction to adjudicate upon the matters raised by the plaintiff, because they fell within the exclusive jurisdiction of the Dewan Ra’ayat. In my view, for the reasons already given, the matter of the appointment and, for that matter, the dismissal, of the Chief Minister, does not fall within the jurisdiction of the L.A. to decide. Hence, the Fan Yew Teng’s case is of no assistance to the defendants. The next case is that of Dato Menteri Othman bin Baginda and Another v Dato Ombi Syed Alwi bin Syed Idrus (1981) 1 MLJ 29, the relevant part of the headnote of which reads: “In this case the respondent had applied for a declaration that the purported appointment by the first appellant of the second appellant as the new Undang of Jelebu was contrary to the adat, custom and constitution of the luak of Jelebu. The appellants after filing their defence applied for an order that the statement of claim be struck out on the ground that the court had no jurisdiction because the dispute involved a question of adat and custom of the Malays in the luak and on the further ground in the case of the second defendant that under the Constitution of Negri Sembilan he as Ruling Chief enjoyed legal immunity in his personal capacity. The learned trial judge dismissed the application of the appellants, holding that the court had jurisdiction to entertain the action and that the second defendant did not enjoy legal immunity. The appellant appealed. Held, by a majority (Suffian, L-P., dissenting (1) the Dewan Keadilan dan Undang is given power under the Constitution to advise on matters relating to Malay custom and as the Dewan in this case had blessed the appointment of the second defendant as the Undang of Jelebu, the court should not attempt to usurp the function of the Dewan, which is a more suitable forum for discharging that function. (2) the court should decline jurisdiction on the ground that it is forum non conveniens and that there is another body which is more appropriate and which has been given power under the Constitution of the State to decide the matter:” It was submitted that the L.A. is the more appropriate forum to decide as to who should be the Chief Minister because, at one sitting, a decisive32__ Malaysia [1987] LRC (Const) decision can be made to the dispute here once and for all. It was argued that judicial procedure and the Court are not the proper procedure and forum to make such a decision; further, that it is inappropriate for the Court to decide on a political issue which the appointment of the Chief Minister is. It was also contended that such a political issue as is concerned in this case should be decided by the L.A., which is the proper forum to make such a decision. In the Dato Menteri Othman’s case (supra), the Federal Court, by a majority, held, inter alia, that it should decline jurisdiction to decide the matter in issue on the ground that it was forum non conveniens and there was another body which is more appropriate and which has been given power under the Constitution of the State of Negri Sembilan to decide such matter. In my view, on the matter as to whether the Court is the proper forum to try and decide on the issues raised by the pleadings or whether it is forum non conveniens, let me say at once that the confidence of the L.A. in an appointee of the Head of State as Chief Minister forms no part of the issues in this action, which, basically but not exhaustively, include the issues regarding appointment and dismissal, with other related issues. Hence, the situation here is not similar to that which existed in the Dato Menteri Othman’s case (supra). I have given reasons as to why I considered that the issues of appointment and dismissal are justiciable issues and hence fall within the jurisdiction of the Court to try. Attention has been drawn to passages in the Dato Menteri Othman’s case (supra) regarding principles relevant to the construction of constitutions; but here, the construction of the State Constitution in particular, falls within the jurisdiction and function of the Court. As to whether the issues mentioned are political in nature, one would be naive, in my view, not to regard them as partly political, but, in my opinion, they are not wholly political in nature. Their trial and decision thereon, in my view, would involve construction of the Federal and State Constitutions, and consideration of legal principles; and the legal issues of misrepresentation, conspiracy, fraud and duress, all of which fall within the jurisdiction and function of the Court. Hence, I do not consider that the decision in the Dato Menteri Othman’s case (supra) applies here. The third case cited in connection with the second ground is that of Merdeka University Berhad v Government of Malaysia (1981) 2 MLJ 356. The facts as appear in the headnote read:— “The plaintiff, a company limited by guarantee, submitted a petition to the Yang di-Pertuan Agong for an incorporation order for Merdeka University under section 6 of the Universities and University Colleges Act, 1971. The petition was rejected and the Minister of Education announced that the rejection of the plaintiff's petition was for the following reasons: (a) Merdeka University would use Chinese as the medium of instruction; (b) it is meant to cater for students from Chinese independent secondary schools; (c) it is to be set up by the private sector; and as a composite for the basis of rejection that in effect its establishment would be contrary to the national education policy. The plaintiff requested a dialogue with the Minister but there was no response. The plaintiff issued a writ asking for a declarationo a Mustapha v Mohammad and Another (Tan, J.) 33 that the rejection of the petition for the establishment of Merdeka University is null and void as it contravenes the Federal Constitution and for a declaration that the refusal of the petition to establish the University is an unreasonable and improper exercise of the discretion conferred by section 6 of the Universities and University Colleges Act 1971.” It was held, inter alia, that “(10) the point taken by the plaintiff that the reasons for the rejection of the petition are incompatible with Article 26 of the Universal Declaration of Human Rights does not arise in this case and in any event the pertinent provisions for consideration are those contained in municipal legislation. The court's power to make declarations is confined to matters justifiable in the courts and limited to legal and equitable rights and does not extend to moral, social or political matters.” I do not consider that this case assists the defendants, as the main issues of appointment and dismissal and the other issues mentioned in the foregoing paragraphs are, in my view, legal matters, although, in the circumstances, some of them may smack of political flavour, but this factor alone, in my view, does not have the effect of ousting the jurisdiction of the Court. In the premises, the second ground of objection fails. The third ground of objection is that the declarations and injunction sought in the Statement of Claim are not issues on which this Court will grant declaratory orders or injunctions. At the outset, it is to be observed that, with the exception of reliefs (h) (costs of this suit), and (i) (further or other relief), reliefs (c) to (g) are dependent upon, and will necessarily follow, a decision as to whether (1) it falls within the power of the Court to grant and (2) whether the Court should grant reliefs (a) and (b) sought by the plaintiff. Reliefs (a) and (b) are as follows:- “(a) a declaration that the first defendant’s revocation of the plaintiff's appointment as Chief Minister on the 22nd day of April 1985 is ultra vires the Constitution, null and void and of no effect; (b) a declaration that the plaintiff is the Chief Minister of the State of Sabah;” It was emphasised that it ultimately falls within the jurisdiction of the L.A. to decide who should be the Chief Minister and who as such, commands the confidence of the majority of members thereof and that the most that the plaintiff could hope for is a reasoned judgment of the Court as to who has the confidence of the L.A. Further, that what is involved here is a political, as distinct from a legal, right. On the other hand, learned senior counsel for the plaintiff has pointed out that the trend of the Courts is towards a more liberal attitude regarding judicial review of executive actions and the grant of declaratory orders; that a contrast should be made between a legal right and political issues; and that here, the former matter, and not the latter, is in issue, in respect of which the plaintiff is entitled to come to Court to have it tried. On the factor of power to make declaratory orders, it is established that under Order 15, r.6 of the Rules of the High Court 1980 the court’s power to make declaratory judgments or orders is confined to matters which are34 Malaysia [1987] LRC (Const) justiciable, and the binding declarations which the Court can make under the rule are declarations as to legal or equitable rights and not moral, social or political matters: see Malone v Metropolitan Police Commissioner [1979] 1 Ch 344; Merdeka University Bhd v Government of Malaysia (supra). I have earlier expressed the view that the issues, although they may be said to be partly political in nature, nevertheless involve consideration of interpretation of the Federal and State Constitutions and that the main issues are legal ones both of which factors fall within the jurisdiction and function of the Court to deal with. On the issue of appointment which was stated to be a central feature in the case for the Defence, subject to it being tried, if the Court finds that the contention of the plaintiff succeeds, this would mean that a legal right is involved; and it is not, in my view, incompetent for the plaintiff to ask for the first two reliefs sought. Hence, with respect, I am unable to accept the argument that political issues and no legal right are involved in this respect. It is true that, ultimately, it is the L.A. who has the power to decide who commands its confidence and hence who should continue to be Chief Minister, but, as pointed out earlier, this is not the issue here, and the main issues relate to appointment and dismissal which, for the reasons given, are justiciable issues. In my view, the facts and reliefs sought in the Malone’s case (supra) are different and distinguishable. There, it was held inter alia that some of the declarations sought by the plaintiff did not relate to legal or equitable rights and hence the Court had no power to make them; and with regard to some others, that the Court in its discretion would not make them. Three Indian cases were cited in support of the third ground. In considering these cases, it should be borne in mind that the relevant constitutional provisions construed by the Indian courts in those cases are not identical to ours, although they may relate to the same subject-matter. The case of Madan Murari v Choudhuri Charan Singh AIR 1980 Cal 95, was concerned with, inter alia, the construction of Articles 74 and 75 of the Indian Constitution. Article 74 is not relevant here, and Article 75 relates to the appointment of the Prime Minister and other Ministers by the President of India, the collective responsibility of the Council of Ministers to the House, and the administration of the oath of office by the President to the Ministers. The Madan Murari’s case (supra) decided, inter alia, that in making the choice of the Prime Minister the President has to act in his own discretion and naturally he must take various factors into consideration and the primary factors is his assessment as to who as Prime Minister and which body of Council of Ministers will enjoy the confidence of the Parliament in terms of Article 75(3). But the President is not fettered in his choice except by his own assessment. Further, the Court could not sit in judgment on the political assessment of the President. Article 75(1) of the Constitution of India provides that the Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister. The corresponding provision in respect of the appointment of the Chief Minister of a State is contained in Article 164(1) which contains a proviso which is not relevant here, and which states:- oMustapha v Mohammad and Another (Tan, J.) 35 “164(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the Governor.” It is thus apparent that the constitutional provisions in India corresponding to those in Article 6(3) of the State Constitution are not identical. For the purposes of these proceedings, I need not dwell upon the differences. Suffice it to say that the issues here are not concerned with whether the Head of State, in appointing the Chief Minister, had exercised his discretion properly, lawfully and constitutionally or what factors he took or did not take, into consideration when he made the appointment. As stated, the issue as to appointment relates to the question whether an appointment had been lawfully made. Hence, I am of the view that the decision in the Madan Murari’s case (supra) has no application here. The next Indian case cited is that of Dinesh Chandra Pande v Chaudhury Charan Singh and Others AIR 1980 Delhi 114. Part of Headnote (A) reads: “Political questions are unjusticiable by Courts. The main reason is that legitimate use of political power is generally non-justiciable since it has political sanction which is sufficient in view of the separation of powers between the executive, the legislature and the judiciary in the Constitution. But when it is alleged that political power has not been used in accordance with the Constitution or the law, the Courts have to examine if the issues are legal or political and if the latter if they are justiciable or not... .. The courts will not shun to decide seemingly political questions when the Constitution or a statute has to be interpreted to answer them.” (Italics added.) Part of paragraphs 8 and 9 of the judgment of Deshpande, C.J., read: “8... . The doctrine of which we treat is one of ‘political questions’, not one of ‘political cases’. The courts cannot reject as ‘no law-suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority. 9. Our Supreme Court has, however, had to decide seemingly political questions since the Constitution or a statute had to be interpreted to answer them, ordinarily a duty which courts will not shun... .” Ihave reached the conclusion that the main issues involved in this action are legal and constitutional in nature, and consideration of legal principles and the interpretation of the Federal and State Constitutions are concerned. Hence, the decision in the Dinesh Chandra Pande’s case, in my view, is of no assistance to the defendants. Reference has been made in the course of argument to the letter dated 30th May 1985, addressed to the Head of State by the majority of the members of the L.A., expressing support to the second defendant as the Chief Minister (see Fols. 39 to 44 of Agreed Bundle (A.B.)). In my view, this has no bearing on the issues to be decided in these proceedings. In any event, that letter was dated some time after the date of the disrupted36 Malaysia [1987] LRC (Const) appointment concerned in this action. The third Indian case cited is that of Jogendra Nath Hazarika v State of Assam AIR 1982 Gauhati 25. Part of Headnote (A) reads:- . It is triflingly easy to raise questions touching one or the other provisions of the Constitution in every writ application and to contend that they are controversial questions relating to construction of constitutional provisions and no Rule should be issued. The real test is whether an arguable issue has been raised by the petitioner.” That case was concerned with inter alia construction of Article 226 of the Constitution of India relating to the jurisdiction of the High Court to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. However, even assuming that the case cited has any relevance, I have held that in this action, the main issues are not inarguable ones. Part of Headnote (C) states:- “... The repository of power to appoint Chief Minister and the Council of Ministers or to withdraw the pleasure contemplated under Article 164(1) and/or dismissal of the Ministry are exclusive pleasure- cum-discretion of the Governor. There is no limitation or condition of the unfettered pleasure prescribed in Article 164(1). .. . There is no manner or method of withdrawal of his pleasure. There is nothing that it should be published in the Official Gazette.” I need comment no further on the difference in wording in Article 164(1) of the Indian Constitution and Article 6(3) of the State Constitution. Further, there is nothing in the State Constitution corresponding to what was provided in Article 163(2) of the Indian Constitution which reads: “163(2). If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.” In my view, because of the difference in the reliefs sought in the Jogendra Nath Hazarika’s case (supra) and the differences in the issues involved and the relevant constitutional provisions, I find that the decision in that case has no application here. I need hardly reiterate that the second factor involved in the reliefs, particularly reliefs (a) and (b), sought by the plaintiff, that is, whether, assuming that it is within the power of the Court to make the declaratory orders and injunction sought, such reliefs should be granted, is, in my view, a matter that falls to be considered at the trial, and not at this stage of the proceedings. In the result, I find that the third ground of objection fails. I shall deal with the fourth and sixth grounds of objection together. The fourth ground is that the appointment of the Chief Minister is for the Yang di-Pertua Negeri and subsequent to such appointment, the position of the Chief Minister is a privilege of the L.A., and this privilege has been ° >» o ° a Mustapha v Mohammad and Another (Tan, J.) 37 exercised by the L.A. by a vote of confidence on 30th May 1985. Subsequent to that, on 3rd August 1985, matters in relation to the appointment of the Chief Minister had been decided by the L.A., and therefore the Court should take cognisance of these and. decline jurisdiction as a matter of principle. The sixth ground is that the principle of parliamentary democracy enshrined ‘in the Federal and Sabah State Constitutions is based on the separation of powers and therefore this Court should avoid any enquiry directly or indirectly which might lead to a conflict with the L.A. I have previously commented on the resolution of the L.A. dated 3rd August 1985. On the fourth ground, it was contended that the right to be Chief Minister is a political right and that the ultimate judges are the elected representatives in the L.A. In this connection, with respect, in my view, while it may be true that, although appointed by the Head of State, whether a Chief Minister can continue to be such would ultimately depend on whether he commands the confidence of the members of the L.A. — and, in this respect, there is nothing, including the State Constitution and the Legislative Assembly (Privileges, Immunities and Powers) Enactment 1963, to exclude nominated members - it is too wide a proposition to state that the right to be a Chief Minister is a political right, since, by virtue of his appointment by the Head of State, he has a legal right to be the Chief Minister until that right is terminated by an adverse decision of the majority of the members of the L.A. The case of Bradlaugh v Gossett (1884) 12 QB 27 was cited in support of the sixth ground. The headnote reads:- “The House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute-law which has relation to its internal procedure only. What is said or done within its walls cannot be inquired into in a court of law. A resolution of the House of Commons cannot change the law of the land. But a Court of law has no right to inquire into the propriety of a resolution of the House restraining a member from doing within the walls of the House itself something which by the general law of the land he had a right to do, viz., take the oath prescribed by the Parliamentary Oaths Act 1866 (29 Vict. c. 19). An action will not lie against the Serjeant-at-Arms of the House of Commons for excluding a member from the House in obedience to a resolution of the Hosue directing him to do so; nor will the Court grant an injunction to restrain that officer from using necessary force to carry out the order of the House. The plaintiff, having been returned as member for the borough of N., required the Speaker of the House of Commons to call him to the table for the purpose of taking the oath required by 20 Vict. c. 19. In consequence of something which had transpired on a former occasion the Speaker declined to do so: and the House, upon motion, resolved ‘that the Serjeant-at-Arms do exclude Mr. B. (the plaintiff) from the House until he shall engage not further to disturb the proceedings of the House.”38 Malaysia [1987] LRC (Const) In an action against the Serjeant-at-Arms praying for an injunction to restrain him from carrying out this resolution: Held, that, this being a matter relating to the internal management of the procedure of the House of Commons, the Court of Queen’s Bench had no power to interfere. Burdett v Abbott (14 East, 148), and Stockdale v Hansard (9 Ad. & E. 1) commented upon and approved.” ‘The following passage appears in the judgment of Stephen, J. (at p.278):~ “|. . I think that the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute-law which has relation to its own internal proceedings, . . .” However, in the same judgment, a distinction was drawn between a right to be exercised within the House, and rights to be exercised out of and independently of the House. Thus, at p.282, the same judgment states (at para. 1):- “We should have said that, for the purpose of determining on a right to be exercised within the House itself, and in particular the right of sitting and voting, the House and the House only could interpret the statute; but that, as regarded rights to be exercised out of and independently of the House, such as the right of suing for a penalty for having sat and voted, the statute must be interpreted by this Court independently of the House.” Later, in the same judgment, the following passage appears (at p.286, para. 1): “Those which are to be exercised out of Parliament are under the protection of this Court, which, as has been shown in many cases, will apply proper remedies if they are in any way invaded, and will in so doing be bound, not by resolutions of either House of Parliament, but by its own judgment as to the law of the land, of which the privileges of Parliament form a part. Others must be exercised, if at all, within the walls of the House of Commons; and it seems to me that, from the nature of the case, such rights must be dependent upon the resolutions of the House.” Hence, a distinction should be drawn between the legal right to be Chief Minister outside the L.A., after appointment by the Head of State, and the rights enjoyed or exercised by a Chief Minister within the L.A. ‘The case of The King v Sir R. F. Graham-Campbell and Others [1935] 1 KB 594 was also cited. The headnote states: “The House of Commons has the privilege of regulating its own internal affairs and procedure, including the sale, within the precincts of the House, of intoxicating liquor without a licence, through its employees in the Refreshment Department of the House. The applicant applied in the police court for summonses against certain members of the Kitchen Committee of the House of Commons and the manager of the Refreshment Department of the House on the ground that they had on two occasions unlawfully sold by retailMustapha v Mohammad and Another (Tan, J.) 39 intoxicating liquor for the sale of which they did not hold a justices’ licence as required by section 65 of the Licensing (Consolidation) Act 1910. The magistrate held that, assuming that there had been a sale of liquor without a licence, his jurisdiction was excluded by the privileges of the House and he declined jurisdiction. Rules nisi having been obtained by the applicant for orders in the nature of mandamus calling on the magistrate, the members of the Kitchen Committee affected and the manager of the Refreshment Department to show cause why the magistrate should not proceed to hear and determine the applications for the summonses:- Held, that in the sale of liquor in the precincts of the House without alicence, the House was acting, through its Kitchen Committee and its employee, the manager of the Refreshment Department, in a matter which fell within the scope of the internal affairs of the House and, therefore, within the privileges of the House so that no court of law had jurisdiction to interfere.” It was emphasised that this case is an illustration of how wide the privileges of the House are (see p.597, last para., and p.598, 2nd para.). In this connection, it is to be noted that unless otherwise expressly provided, the L.A. and members thereof respectively enjoy the same privileges and immunities and powers as are enjoyed by the House of Commons and the members thereof (see section 6(1) of the Legislative Assembly (Privileges, Immunities and Powers) Enactment 1963). However, it should be noted that the decisions in the preceding two cases mentioned are confined to matters of internal management of the procedure of the House and the privilege of regulating its own internal affairs, and whether certain acts fell within the scope of such matters. Here, while one of the main issues relates to appointment of the Chief Minister, the right of the L.A. to pass the resolutions of 30th May 1985 and 3rd August 1985 respectively is not being questioned. In this connection, it is to be observed that, while Standing Order 21(1)(g) of the Standing Orders of the L.A. prohibits the asking of any question on any matter that is sub judice, there is no similar provision in the Standing Orders in relation to the moving and passing of resolutions. Be that as it may, the relevant point to consider is whether, in the absence of any challenge, while it may be within the privileges of the L.A. to pass the resolutions of 30th May 1985 and 3rd August 1985 respectively, they are binding on the Courts. In my view, for the purposes of these proceedings, in matters falling within the province of the Courts to decide, any resolutions passed in the L.A. on the same matters do not bind the Courts. It would be a startling and unacceptable situation if the position were otherwise, as is apparent. To take a simple illustration, if this proposition is not correct, it would mean in effect that the L.A. may encroach on the province of the Courts and take over their functions. The falsity of such a converse proposition is self-evident. In my view the cases of Republic of Italy v Hambros Bank [1950] Ch 314 and Howard v Pickford Tool Co Ltd [1951] 1 KB 417 are of no assistance since the one confirms the principle that declaratory orders may be made by the Court only if the subject-matter of litigation is cognisable or40 Malaysia [1987] LRC (Const) justiciable in the court; and the other decided that the jurisdiction conferred on the court by Order 25, r.5 (now Order 15, r.16) should not be used to answer academic questions. Neither situation exists here. Paras. (b) and (c) of the headnote in the case of Shrikishen v State of Hyderabad AIR 1956 186 read:- “(b) ... There is no jurisdiction in the High Court to issue any writs against a Legislature or Parliament or the Speaker or any officer of these Assemblies. And further, neither a Writ of Prohibition nor a Writ of Certiorari nor a Writ of Mandamus will lie to restrain the State Legislature or Parliament from enacting any legislation even if it is ultra vires their powers A Court has no general or roving superintendence over an undefined field, nor is it its function to declare void or directly annul a law immediately it is promulgated unless its interpretative function is sought by any person or party who challenges that law as having infringed his rights on the ground of its being ultra vires of the powers of the legislative body. The King v Legislative Committee of the Church Assembly [1928] 1 KB 411. Rel. on. () ... A Speaker of Parliament or Legislature or a Chairman of the Rajya Sabha are officers within the meaning of Articles 122 or 212. Ministers of the Government whether of the Centre or of States are also members respectively of Parliament or Legislature; as such the Courts cannot interfere with them in the part they play in the proceedings or business of the Assemblies nor can they interfere with their privileges, as the rights of any of them to introduce any Bill in their respective Assemblies are rights and privileges of those members whether as members or as Ministers. There is an inherent right in the Legislatures to conduct their affairs without any interference from any outside body.” However, as already expressed, there is no issue here relating to any challenge made to the power, right or privilege of the L.A. to conduct its business or affairs, including the passing of laws and the introduction and passing of resolutions. Para. (f) of the headnote in the case of Har Sharan v Chandra Bhan Gupta and Others AIR 1962 301 states: “(f) Constitution of India, Article 226 — Principle of judicial review — Court will not comment on executive acts which do not violate the law or the Constitution. The executive and the judiciary are independent of each other within their respective spheres. Each is conversant with the peculiar circumstances within its own sphere and his special knowledge of complicated questions which is denied to the other. Each must have the fullest discretion in the discharge of its duties. The acts of the executive are not open to review by the judiciary as long as there is no violation of the law or the Constitution. It follows that the court should not ordinarily comment on any act of the executive unless the act is 2Mustapha v Mohammad and Another (Tan, J.) 4 such that it is likely to promote disrespect for the law. The court must extend the same courtesy to the other branches of government, which it receives from them and refrain from making uncalled for comments on the wisdom of the acts of the ministers of government.” In this connection, it should be borne in mind that this action does not involve a review of the acts of the executive, but concerns mainly issues involving consideration as to whether, constitutionally and in law, the plaintiff was appointed Chief Minister, and legal issues regarding alleged misrepresentation, fraud, duress and conspiracy against the plaintiff. The issue on dismissal would involve consideration as to whether the State Constitution has been violated. Hence, in my view, the Har Sharan Varma’s case (supra) has no application here. However, paras. 26 and 27 of the judgment of S. S. Dhavan, J., in that case may be worthy of note. They read as follows:- “(26) The Court’s jurisdiction does not extend to every kind of improper exercise of power conferred by the Constitution. Impropriety may be either legal or political in nature. In the former case the Court will interfere, in the latter it cannot. (27) The constitution of parliamentary democracy has been compared to a floating iceberg, as it consists of parts which are written and visible and others which are unwritten and invisible but cannot be ignored without imperilling the democratic process itself. The written text of the Constitution which distributes the powers of government between its different branches and regulates the manner of its exercise is the visible part of the Constitution. If the provisions of the Constitution are violated, the Courts can interfere. If for example, government pass a law infringing the fundamental rights of a citizen in violation of Article 13, or the State imposes a tax which it is not authorised to do, or the Governor nominates as member of the Council a person who is not a citizen of India, the remedy lies in the law courts.” As to the quotation made by learned senior counsel for the defendants from Zamir on the Declaratory Judgment (1962) at p.42, relating to extra-legal issues, that is, issues that are not of a legal, but of a moral, social or political character, I have dealt with this aspect of the matter when considering the third ground of objection regarding the making of declaratory orders and injunctions. Emphasis has been laid on the case of Council of Civil Service Unions and Others v Minister for the Civil Service [1984] 3 All ER 935 and, in particular, to the view expressed in the judgments of Lords Scarman, Diplock and Roskill in that case that powers exercised directly under the prerogative are not by virtue of their prerogative source automatically immune from judicial review. If the subject-matter of a prerogative power is justiciable then the exercise of the power is open to judicial review in the same way as a statutory power. However (per Lord Roskill), prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers are not justiciable or42 Malaysia [1987] LRC (Const) reviewable. In this connection, the first observation I would make is that, in my view, this action is not concerned with judicial review of the exercise of prerogative power. At the risk of repeating myself, a main issue concerns the question as to whether the plaintiff has been legally appointed Chief Minister or not and if so, whether such an appointment is vitiated by conspiracy, misrepresentation, fraud or duress; and further, another main issue is that relating to dismissal, although this issue is related to that of appointment. In any event, the opinion in the judgment of Lord Roskill was expressed obiter. Mention has been made that the power of appointment of the Head of State may possibly be described as a reserved power. However, having regard to the fact that the power of appointment is vested in the Head of State by the State Constitution, such power, in my view, may more properly be described as a constitutional power, although the State Constitution also states that such power is discretionary, subject to the two factors mentioned in Article 6(3) which the Head of State must take into consideration. For the purposes of these proceedings, I do not propose to deal with the case of Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli (1966) 2 MLJ 187, as it concerns the question of dismissal. It should be remembered that the appointment of the second defendant as Chief Minister, as such, is an issue in so far as it is related to the claim of the plaintiff that he had been validly appointed Chief Minister previously and that his purported dismissal is unconstitutional, null and void. If the plaintiff succeeds in his claim to reliefs (a) and (b), it necessarily follows that the appointment of the second defendant as Chief Minister would be adversely affected, as it is common ground that there is no provision in the State Constitution for the appointment of two Chief Ministers. The plaintiff is also alleging breach of the State Constitution in the matter of what he claims to be his dismissal as Chief Minister. Considered in this light, I do not regard that the case of Nokulsana Singh v Kishang Keising AIR 1981 Gauhati 47 assists the defendants. The Articles of the Indian Constitution concerned in that case are Articles 226 and 164, to which I have referred previously, with the observation that the provisions of the latter Article are not identical to the corresponding provisions in the State Constitution. Further, this is not a case involving the consideration whether the Chief Minister has been appointed according to the practice of parliamentary democracy. In a nutshell, the main dispute is: who is the lawful and rightful Chief Minister, involving issues of whether the plaintiff was lawfully dismissed. The futility of the Courts getting involved in cases having political flavour was stressed. In this connection, I would echo the view expressed by Tun Suffian, the former Lord President, in his dissenting judgment in the case of Dato Menteri Othman bin Baginda and Another v Dato Ombi Syed Alwi bin Syed Idrus (supra) where, at p.39, he stated:- “Whether or not the Undang has been validly elected is of course a delicate question, and a political question which is best solved by political means: but if the constitution and law require, as I think they do, that the matter be resolved by the court, then until the constitution has been suitably amended, the court has no alternative but to embark ©o Mustapha v Mohammad and Another (Tan, J.) 43 on the task as best asit can. . . . Further, the courts will not shun to decide seemingly political questions when the Constitution or a statute has to be interpreted to answer them (see the Dinesh Chandra Pande’s case (supra)). In support of the argument that the appointment of the Chief Minister is a matter of parliamentary privilege, it was contended that the position of the Chief Minister is so vital to political life that no L.A. can function without him. Hence, it is self-evident that it is a privilege given to the L.A., subsequent to his appointment, to decide who carries on as Chief Minister and whether the appointment was right or wrong. The machinery of parliamentary democracy is such that the appointment must go back to the L.A. In this connection, it is obvious that, under the State Constitution, the matter of “appointment” and that of “confidence of the L.A.” are separate and distinct: While it is for the Head of State to appoint the Chief Minister, with which function the L.A. is not constitutionally concerned, whether subsequently the appointee of the Head of State commands the confidence of the majority of the members of the L.A., is for the members of the L.A. to decide. The matter of appointment, with which we are here concerned, is therefore, in my view, not a matter of parliamentary privilege, although subsequently, the L.A. has the final say as to whether the appointment is endorsed by the majority of the members thereof and whether the appointee should continue as Chief Minister. We pride ourselves in adopting the system of Government based on parliamentary democracy, which is based on the principle of the separation of powers among the Legislature, the Judiciary and the Executive. So long as this vital principle is practised and maintained, as is being done, the proper functioning of Government is ensured. In the premises, there is no question of the Court declining jurisdiction or avoiding any enquiry directly or indirectly which might lead to a conflict with the L.A. This disposes of the fourth and sixth grounds of objection. I come now to the fifth ground, which is that the jurisdiction of this Court to decide on the issues raised is ousted as a result of the resolutions of 30th May 1985 and 3rd August 1985 by Article 72 of the Federal Constitution. Article 72(1) of the Federal Constitution stipulates that “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any Court.” It is pertinent to consider what the word “validity” implies here. As already noted, there is no challenge here on the passing of the two resolutions mentioned by the L.A. If they concern matters relating to internal management or the internal affairs and procedure of the L.A., then, on the authorities, the matters with which they are concerned are not justiciable and it does not fall within the jurisdiction of the Court to adjudicate upon them. Examples are the Fan Yew Teng’s case, the Bradlaugh’s case and Sir Graham-Campbell’s case. However, if they relate to matters falling within the sphere of the Courts, such as the main issues here, regarding which I have already dealt with, then obviously the jurisdiction of the Court is not ousted by these resolutions. I think that I have given enough expression on the matter and44 Malaysia [1987] LRC (Const) need say no more. In my view, as was rightly pointed out by learned senior counsel for the plaintiff, most of the items in the resolution of 3rd August 1985 concern issues which fall to be decided by the Court in this action, particularly items (i), (ii) and (iii), issues which, for the reasons already given, do not, in my view, fall within the jurisdiction of the L.A. to decide. As to the resolutions of 30th May 1985, if they are to be construed as having a similar effect, then the same situation applies. In the premises, I rule that the resolutions of the L.A. dated 30th May 1985 and 3rd August 1985 do not oust the jurisdiction of the Court to try this action. The last and seventh ground, which I shall dispose of shortly, is that the issues raised in the Statement of Claim are now ex post facto and no longer issues that can be justiciable. This ground is related to the fifth, which has just been dealt with and in the light of my ruling on that ground, the conclusion on this ground is obvious. However, the cases of Glasgow Navigation Co v Iron Ore Company [1910] AC 293, and Tindall v Wright (1922) 38 TLR 521 were cited in support of this ground. The headnotes of these cases are short and they respectively state: “Action dismissed when it appeared to the House to have been brought to try a hypothetical case. No costs”; and “The Court will not decide a point of law which has become academic, even though both parties are anxious to have it determined, and though it is a matter of public importance on which a Government Department desires the guidance of the Court with a view to introducing amending legislation if necessary.” For the reasons given in my ruling on the other grounds of objection, I rule on this ground, that this action, in my opinion, does not appear to have been brought to try a hypothetical case; nor does it involve the Court deciding a point of law which has become academic. That suffices to dispose of this ground of objection. For the reasons given, therefore, I rule that the Court has jurisdiction to try this action. In the Supreme Court: J. D. Bosi, Deputy State Attorney-General, Sabah, for the first appellant D. Puthucheary, P. Koh and J. Golokin for the second appellant. R. Kidwell, Q.C., S. Ram and A. R. Rouse for the respondent. 21st October, 1985 HAMID, C.J., Malaya (SANI and ABDOOLCADER, S.C.]J. concurring): The respondent in these proceedings seeks, briefly put, declarations to establish the validity of his appointment as the Chief Minister of the State of Sabah and to the effect that the purported revocation of his appointment and the subsequent appointment of the second appellant as Chief Minister are ultra vires and devoid of any effect. The appellants refute these claims and in their defence aver that the respondent’s appointment as Chief Minister in the first instance was in fact procured by conspiracy,Mustapha v Mohammad and Another (Hamid, C.J.) 45 misrepresentation, fraud and duress and that the first appellant could in fact and in law revoke the appointment in the circumstances. At the outset of the hearing before the High Court in Kota Kinabalu the appellants raised a preliminary point by taking objection to the jurisdiction of the court in respect of these proceedings on the basis that the issues raised were not justiciable. The hub of their contention, although diffused into a network of some seven grounds of objection, would appear to be that a purely political question was involved calling for a political solution and the matter was accordingly beyond the scope of judicial determination. The learned judge after hearing lengthy and extended argument dismissed the objection taken. The central issues in this matter are the validity of the initial appointment of the respondent as the Chief Minister which itself has been called into question by the appellants themselves on the allegation that this was procured by conspiracy, misrepresentation, fraud and duress, the power of the first appellant to revoke this appointment and the consequential validity vel non of the appointment of the second appellant as Chief Minister of the State. Now all this must certainly entail a delicate exercise in constitutional interpretation on a consideration of the background and attendant circumstances alleged and involved. The appointment of the respondent in the first instance must be lawful and made in bonam partem, and when this is impugned by the appellants themselves on the basis of the allegations we have adverted to, then this would surely require evidence and examination of the allegations made in order to determine the lawfulness of the initial appointment and whether the first appellant’s judgment was in fact impaired as a result in exercising his discretion in making the appointment. The subsequent purported revocation of the appointment would also raise legal and constitutional issues attracting legal considerations. We are therefore of the view that justiciable issues do in fact arise for judicial determination and the matter falls within the jurisdiction of the court for adjudication. The mere fact that a litigant seeks the protection of a political right does not mean that it presents a political question. Whether a matter raises a political question; whether it has been committed by the Constitution to another branch of government is itself a matter for judicial determination because 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 30th May and 3rd August respectively. The issues here are the matter of the initial appointment of the respondent as Chief Minister, the subsequent purported revocation of that appointment and the consequential appointment of the second appellant as. Chief Minister by the first appellant. Motions of confidence or no confidence or whatever passed in the Legislative Assembly might be political ratification or rejection of the choice made but cannot, in our46 Malaysia [1987] LRC (Const) view, affect the primary issues of the appointment and revocation which are legal and justiciable questions clearly within the competence of judicial consideration and determination. The learned Judge has dealt somewhat exhaustively with all the contentions raised on behalf of the appellants on the question of jurisdiction and we agree with the reasons he has given and his conclusion that the matters raised in the respondent's action are justiciable and not without the jurisdiction of the court for trial. We accordingly dismiss this appeal with costs. The deposits lodged by way of security will be paid out to the respondents. The substantive proceedings can now proceed to a hearing and, we trust, with some expedition. We urge that counsel approach the trial Court for an early date of hearing. In the High Court: R. Kidwell, 0.C., S. Ram and A. R. Rouse for the plaintiff. A. Lester, Q.C., J. D. Bosi, Ag. State Attorney, Sabah, D. Puthucheary and P. Koh for the first defendant. A. Lester, Q.C., D. Puthucheary and P. Koh for the second defendant. 15th April 1986 TAN, J.: In this action, the plaintiff claims the following reliefs against the defendants:- (a) a declaration that the first defendant’s revocation of the plaintiff's appointment as Chief Minister on the 22nd April 1985 is ultra vires the Constitution, null and void and of no effect; (b) a declaration that the plaintiff is the Chief Minister of the State of Sabah; (c) a declaration that the first defendant’s act in appointing the second defendant as the Chief Minister of Sabah on the 22nd April 1985 is ultra vires the Constitution, null and void and of no effect; (d) an injunction to restrain the second defendant from exercising the powers of and/or acting as the Chief Minister of the State of Sabah; a declaration that the act of the first defendant in appointing the State Cabinet is ultra vires the Constitution, null and void and of no effect; (f) a declaration that the act of the first defendant in appointing the nominated members of the Assembly is ultra vires the Constitution, null and void and of no effect; a declaration that all acts and things done by the second defendant in his pretended exercise of his powers as Chief Minister are null and void and of no effect; (h) costs of this suit; (i) further or other relief. At about 5.30 a.m. on 22nd April 1985 the plaintiff took and subscribed an oath in the form prescribed for a Chief Minister for the State of Sabah, before the first defendant. The same day, the first defendant purports to revoke the appointment as Chief Minister of the plaintiff. At about 8.00 (e C3 @o o ° © > Mustapha v Mohammad and Another (Tan, J.) 47 p.m. the same day, the first defendant appointed and swore in the second defendant as Chief Minister, which appointment is a main issue. After hearing argument, the Court allowed the application of learned leading counsel for the defendant (LCD) to amend the pleadings of the defendants by incorporating, as part of the defendants’ pleadings, written relevant legal principles relied upon by the defendants. This was later supplemented by a written ‘Further legal submissions on behalf of the Defendants”, including Part (E) thereof, on application made. At the outset, I would like to mention one matter, and it relates to whether the alleged appointment of plaintiff as Chief Minister should be an issue to be considered by the Court. The case for the plaintiff, based on his pleadings, is that there having been an appointment, the sole issue is whether the purported revocation of his appointment is valid. The defendants contend otherwise. In the light of the existing pleadings, which have been amended since the judgment on the preliminary point taken by the defendants on jurisdiction, I am of the view that the matter of the alleged appointment of plaintiff as C.M. is an issue to be tried. Paragraph 3 of the Statement of Claim states: “On the 22nd day of April 1985, the first defendant acting under the provisions of Article 6(3) of the Constitution, appointed the plaintiff as Chief Minister.” Paragraphs 2 and 2A of the re-amended Statement of Defence of the first defendant respectively allege: “2. The first defendant in reply to paragraph 3 of the Statement of Claim states that the plaintiff was never appointed as Chief Minister of Sabah under Article 6(3) of the Constitution of the State of Sabah as claimed. 2A.The plaintiff was not appointed on the 22nd April 1985 and all other Defences in this Amended Statement of Defence are in the alternative.” This brings in issue the question of whether there was an appointment, and if so, whether it is a valid one, with the reservation that it is common ground that how the first defendant exercised his discretion and the matters and factors which he took into account, in making an appointment under Article 6(3) of the Sabah State Constitution are non-reviewable. In this connection, I think it is pertinent to observe that, the defendants being the party to begin, the evidential burden lies upon them to prove that there was no, or no valid, appointment. It was agreed by the parties that the defendants should begin first, and this was done. At the end of the case for the defendants, learned leading counsel for the plaintiff (LCP) submitted that there is no case for the plaintiff to answer, and elected to call evidence only on the one issue as to whether the first defendant gave permission for the plaintiff to enter the Istana. I am deeply indebted to both leading counsel for the parties for presenting their respective submissions in writing. T have fully considered the submission of no case to answer by LCP in the light of the pleadings and the evidence called by the defendants. For48 Malaysia [1987] LRC (Const) the reasons which will appear in this judgment, I rule that there is a case for the plaintiff to answer. My judgment is therefore intended to cover this aspect of this action, as well as the action as a whole. As certain allegations of misconduct, including allegations of conspiracy and threatening behaviour, have been made by the defendants against certain persons, including the witnesses called by the plaintiff, I bear in mind the burden of proof placed on the defendants: that the more serious the allegation, the higher degree of probability and the more cogent the evidence, are required. As to the allegation of fabrication of evidence by Haji Mandalam bin Marziman (P.W.1) and Constable Ali Hassan bin Muyong (P.W.4), this requires a criminal standard of proof, that is, proof beyond any reasonable doubt. I propose to deal with the evidence under several headings as follows, to be followed by my judgment on specific legal issues:- 1(a) Did the plaintiff enter the Istana on the invitation or with the permission of the first defendant? (b) Did the first defendant decide to appoint plaintiff as Chief Minister before the latter’s arrival? 2 Circumstances under which the plaintiff was sworn in by the first defendant, and whether swearing in has legal effect. 3. Circumstances under which the second defendant was allegedly appointed as Chief Minister; and whether the alleged appointment is legal and valid. the Plaintiff Enter the Istana on the Invitation or with the Permission of the first Defendant? It is common ground that the plaintiff entered the Istana at about 3.40 a.m. on 22nd April 1985 in a Trooper vehicle, led by a car numbered CPS 203 used by the close escort of the former Chief Minister Datuk Harris Mohamad Salleh (Datuk Harris). It is the case for the defendants that the entry was not at the invitation nor with the permission of the first defendant. It is the case for the plaintiff that it was. The evidence of the first defendant (D.W.1) was to the effect that he never invited the plaintiff, nor gave permission to the plaintiff, to come to the Istana. He related how, at about midnight, he received a telephone call from a former State Minister, Lim Guan Sing, followed by another one about 15 minutes later, asking or advising him not to let in anyone to the Istana. He was surprised. At about 2.15 a.m., his ADC Haji Mandalam bin Marziman (P.W.1) informed him that the personal assistant to Datuk Harris telephoned to say that the last-named wanted to come to the Istana to see him; whereupon he gave instruction to P.W.1 that only Datuk Harris and his bodyguard were allowed entry to see him. Being dressed in sarong and baju Melayu then, he went up to change into a batik shirt and long trousers. He went downstairs again, and met his private secretary at the corridor between the latter's office and his own. He was surprised to see the latter in a necktie, without a coat. D.W.1 went upstairs and changed into a bush jacket and brought with him a revolver and a talismanic kris. At this stage, I would mention that, on the evidence, nothing much turns on these two weapons. D.W.1 stated that after he met the private secretary, he had the intuition that something might happen.o a ° ° > Mustapha v Mohammad and Another (Tan, J.) 49 D.W.1 said that when he went into his office, with the intention of seeing Datuk Harris, he was surprised and taken aback on seeing the State Secretary Tan Sri Hamid Egoh (D.W.7) and the State Attorney, Datuk Nicholas Fung (D.W.2). He asked them, “What is this”, and they replied that they were asked to come to the Istana to arrange for the appointment of the plaintiff as the Chief Minister. He said: “Mana boleh” (how can it be); and one or both of the other two witnesses said: “Memang tidak boleh” (of course cannot). While still discussing with D.W.2 and D.W.7 about what was to be done and the reason why they came to the Istana, the plaintiff and a number of other persons arrived and entered his office without his permission. He asked D.W.2 and D.W.7 to go to the private secretary’s office. He then had some casual conversation with the plaintiff in his office, having known the latter well for a long time, since about 1967. According to the evidence of D.W.1, he did not invite, nor give permission to, the plaintiff to enter the Istana. It was suggested to D.W.1 in cross-examination that, between 2.00 a.m. and 2.30 a.m. Datuk Harris telephoned him on his private line and told him: “Tun, I am sorry to tell you that we have lost this election. Tun Mustapha’s representative called to seek our support and I have agreed.” This was denied by D.W.1, who also denied that he replied: “Alright or O.K. If that is the case I’ll make arrangements to call and swear in Tun Mustapha.” He also denied that the suggestion to call in Tun Mustapha came from him, and not from Datuk Harris; and also that Datuk Harris then said to him: “The decision is up to you” or “It is up to you to make the decision.” I would observe that, if the alleged conversation did take place, which was denied by D.W.1, it seems remarkable and surprising that Datuk Harris has not given any evidence about it. It would clearly have been strong evidence for the plaintiff to show that the plaintiff has been invited to the Istana by D.W.1 to be sworn in. Viewed in the light of the rest of the evidence, the very nature of the allegations seems incredible, for they clearly suggest that, at a time when, without any evidence being shown that D.W.1 knew the final results of the general election, and upon such flimsy information given by Datuk Harris, D.W.1 took it upon himself to make arrangements to swear in the plaintiff. I have no hesitation in believing D.W.1 and finding that there was no such conversation. It was put to D.W.1 that he instructed Ahmad Jalil, then protocol officer at the Istana, to telephone the plaintiff at his house at between 3.00 a.m. and 3.15 a.m. and invite the latter to come to the Istana to be sworn in as Chief Minister. This was in effect denied by D.W.1. If what was put to D.W.1 was true, it would again clearly have been strong evidence for the plaintiff, showing that D.W.1 had invited the latter to the Istana to be sworn in. At the time P.W.1, P.W.3 and P.W.4 were called to give evidence for the plaintiff, Ahmad Jalil had also been transferred from the Istana, and it is not known why he was not called to give this important piece of evidence for the plaintiff. In the circumstances, considering the denial or non-admission of D.W.1 of the allegation put, I believe him and find that the allegation has no substance. Indeed, in the circumstances, I would go further and hold that the presumption under section 114(g) of the Evidence Act 1950, applies against the plaintiff. A series of questions were put to D.W.1 on an alleged conversation50 Malaysia [1987] LRC (Const) between him and Dr. Ya’acob Merican when the latter came to the Istana on the afternoon of 22nd April 1985. I find, on the evidence given by Tan Sri Hamid Egoh (D.W.7) which I accept, that Dr. Merican came on the instructions of Datuk Harris. It was also alleged that Dr. Merican came to the Istana on invitation. The alleged conversation, if proved to be true, would indicate that D.W.1 told Dr. Merican that he had appointed the plaintiff; had shown a letter from the second defendant to Dr. Merican; and had asked the latter for advice as to whether it was legally possible to have the plaintiff removed from his appointment. The allegations were denied by D.W.1, and Dr. Merican has given no evidence to substantiate the allegations. Indeed, on the evidence of Datuk Nicholas Fung (D.W.2), which I accept, any conversation regarding any matter relating to the allegations put to D.W.1 was probably, to say the least, with D.W.2 and not with D.W.1. I find on the evidence that Dr. Merican was not invited to the Istana, and that no conversation of the nature put to D.W.1 between him and Dr. Merican took place at the Istana on the afternoon of 22nd April 1985. I would, in the circumstances, further hold that, in respect of the allegations put, the presumption under section 114(g) of the Evidence Act 1950, applies against the plaintiff. The evidence of D.W.1 as to the remarks made by him when he met D.W.2 and D.W.7 was corroborated by D.W.2, who testified that, when D.W.1 saw them, he said; “Apa macam ini” (what is this) or something like that. D.W.2 stated that he remembered this distinctly. Then, after D.W.1 was told why D.W.2 and D.W.7 were there, and D.W.2 informed him that as far as was known, PBS had got 25 of the elected seats; and it would be improper and unconstitutional to appoint Tun Mustapha, to which D.W.7 agreed, D.W.2 stated that D.W.1 said something to this effect: “Ya lah. Mana boleh, lah.” If believed, this, taken with the evidence of D.W.1, would clearly run counter to the view that the plaintiff had been invited by D.W.1 to come to the Istana to be sworn in; or had entered the Istana with the permission of D.W.1. D.W.7 did not give evidence specifically about what was stated in the evidence of D.W.2 above, but he corroborated the evidence of D.W.2 about their telling D.W.1 that PBS had obtained more seats than USNO and Berjaya combined and that, in their opinion, it would be unconstitutional to appoint someone other than PBS, and D.W.7 added that the decision was that of D.W.1. D.W.7 stated that D.W.1 must have said something, but he could not remember. In any event, the evidence of D.W.7 did not contradict that of D.W.1 and D.W.2. In his evidence in chief, D.W.7 stated that, after he learnt that PBS had won 24 seats, at the house of Datuk Harris, the latter told him, ‘Go to the Istana.” “We are going to form a coalition.” “Go to the Istana. TYT is expecting you.” If proved, what was alleged by Datuk Harris would be evidence for the plaintiff indicating that D.W.1 had approved of a coalition between USNO and Berjaya and that he was expecting the arrival of D.W.7. However, the evidence of D.W.1 and D.W.2 and D.W.7 shows otherwise. I have to point out again, that, like the alleged telephone conversation mentioned and dealt with earlier, what was alleged by Datuk Harris against D.W.1 has not been substantiated; Datuk Harris has not given evidence to substantiate the allegation; and no sufficient reason, in o °a ° = Mustapha v Mohammad and Another (Tan, J.) 51 my view, has been given for his failing to give evidence to substantiate such allegation. Hence, such allegation, in the circumstances, cannot be accepted and I find that it constitutes no evidence against D.W.1. In cross-examination, D.W.2 stated that “apa macam ini” meant “What is this” and not “How come”. If put as a political question, it could mean “What happened”, but he could not read the mind of D.W.1. However, D.W.2 also said that he worked on the assumption of what he was told by Datuk Harris when the latter said: “Go to the Istana. Tun Mustapha is going to be sworn in.” He accepted Datuk Harris’ statement; and if it was correct, he would expect Tun Mustapha to be at the Istana. On the other hand, D.W.2 did not agree that, if Datuk Harris had been right, what happened at the Istana showed that that was so. It did not appear to him that D.W.1 who was in a bush jacket was going to appoint Tun Mustapha. D.W.2 added that, even if the plaintiff had turned up uninvited, D.W.1 would still have been courteous to him and offered him biscuits, and to his party as well - and there is evidence to show that D.W.2 had known D.W.1 for some time. The other two defence witnesses who gave relevant evidence on the entry of the plaintiff through the Istana gate were two guards at the gate: Corporal Abdul Rashid (D.W.8) and Constable Faizul bin Zainal Amran (D.W.9) At the outset, I would state that I find these two witnesses to be entirely honest, impartial and independent witnesses, who gave their respective evidence clearly and honestly. I accept them without any hesitation as witnesses of truth; and I accept their evidence. I have reached this conclusion from observing their demeanour in Court while giving evidence, including the way in which they gave their respective evidence, and after weighing their evidence against the rest of the evidence, particularly the evidence of the plaintiff's witnesses, Haji Mandalam bin Marziman (P.W.1), Constable Mohamad Yunus bin Mohamad Yasin (P.W.3) and Constable Ali Hassan Muyong (P.W.4). They were unshaken in cross-examination. I also find that they gave their respective evidence as they remembered it and, where there is any inconsistency or contradiction, it was not deliberate and had arisen through honest mistake; and that any such inconsistency or contradiction had not resulted from giving untrue evidence. It has been submitted that D.W.8 is an impartial witness, and it was pointed out that he was in dereliction of duty; and he had omitted to record down certain important events in the guard-room diary (Ex. D32). He had admitted in cross-examination that he was unaware that certain persons from the Istana had left or entered the Istana. It was also pointed out that he had broken the rules by allowing Datuk Herman Luping to telephone from the guard-room. I find that D.W.8 had given reasonable explanation for such omissions and lack of awareness; that he was unaware of the happening of such events as he did not witness them or was not subsequently told about them, he being in charge of the gate guards and was not doing sentry duties; or that, by the time he became aware, it was too late to do any recording in Ex. D32, as events subsequent in time had already been recorded therein. As to allowing Datuk Luping to use the guard-room telephone, he had first satisfied himself that it was proper and52 Malaysia [1987] LRC (Const) safe to do so. There is not the slightest evidence to show that the evidence of D.W.8 or D.W.9 was either rehearsed, or that they had had recourse to something to refresh their memory. As rightly observed by LCP, Ex. D32 had been in the custody of the police at Kuala Lumpur until its production in Court. It is the evidence of D.W.8 that he was in charge of five guards at the Istana main gate who were on duty between 7.32 a.m. on 21st April 1985 and 7.42 a.m. on 22nd April 1985. D.W.8 testified that he remembered that at 2.40 a.m. on 22nd April 1985, he received a telephone call from Acting Sergeant Sunoh Karto, bodyguard to D.W.1, stating that the Chief Minister, whom he understood to be Datuk Harris Salleh, together with Datuk Harris’ escort would be coming to the Istana. He was instructed to let them through and to close the gate after that. He recorded the instruction in Ex. D32. This entry appears as Entry 4872. It is to be observed that, whereas D.W.8 mentioned “the Chief Minister and his escort” in his evidence, Entry 4872 in Ex. D32 records “(car) CM and his escort.”’ I shall come back to this matter later in this judgment if necessary. It should be noted that Ex. D32 was produced after both D.W.8 and D.W.9 had given evidence, and they were not recalled to be questioned on Ex. D32. Be that as it may, as stated earlier, I find that D.W.8 gave his evidence as he remembered it. D.W.8 stated that at about the same time, 2.40 a.m., suddenly P.C. Yunus (P.W.3), who was close escort of D.W.1, came. D.W.8 stated that, on being asked why he came, P.W.3 “informed me that he was instructed to help me in my duties; but he did not tell me who had given him the instruction. It was not a normal thing, because never before this had a guard from the Istana come to help us in our duties.” D.W.8 then related how at 3.15 a.m., ASP Peter Paut came. This was recorded as Entry 4873 in Ex. D32. As the sentry did not know the ASP, the latter was not allowed in, but P.W.3 told the sentry that the ASP was a police officer. The ASP did not enter, and after giving advice about security, he left. P.W.3 also went back to the Istana. At3.30 a.m., D.W.8 saw a car bringing P.W.3 and Constable Ali Hassan (P.W.4) from the Istana stopping at the gate. The car was parked near the gate facing out from the Istana. D.W.8 then saw P.W.3 in conversation with Constable Faizul bin Zainal Amran (D.W.9). After that, P.W.4 went out through the gate together with P.W.3. When they did so, D.W.8 saw cars coming up to the Istana. D.W.8 then related how he saw P.W.3 and P.W.4 checking in the cars. “When the cars came near to both the police constables, I saw them checking the occupants of the cars. They knocked at the door of the car; and looked inside. Some, about five cars, were permitted in, while the others, about ten cars, were asked to park outside the gate.”” D.W.8 saw the entry of the five cars, the first of which was CPS 203, normally used by the close escort to Datuk Harris, as C.M. D.W.8 stated: “I feel that this was abnormal procedure because it has never happened before that the bodyguards themselves went down to let the visitors in. At that time, I approached my sentry, P.C. Faizul, and asked him why he let the people in; why he let the people whom he did not know, enter. P.C. Faizul replied that he had already asked P.C. Yunus. P.C. Yunus told him that it was the instructions given by Tun. I asked P.C.o ° > Mustapha v Mohammad and Another (Tan, J.) 53 Faizul the identity of the person who was permitted in.” P.C. Faizul (D.W.9) replied that he was told by P.W.4 that it was Tun Mustapha. Although D.W.8 knew that this had contravened instruction, he allowed Tun Mustapha to enter because he heard that the instructions were given by D.W.1 and that P.W.3 and P.W.4 had said so. D.W.8 also testified that apart from the five cars, about ten persons on foot were let in by P.W.4 and he described how that came about. In cross-examination, D.W.8 stated that at about 2.45 a.m., P.W.3 walked down to the Istana gate. When asked whether P.W.3 told him that there were instructions to let the plaintiff into the Istana, D.W.8 replied in the negative. It was put to him that P.W.3 stated that he would stay and assist D.W.8 and the sentry at the gate, to which D.W.8 replied: “I was the one who asked him. I asked him what he was doing at the gate. He told me that he was instructed to come down to help with the duties at the gate. He did not inform me who had given him instructions. I did not ask him who.” D.W.8 was cross-examined about his evidence of seeing P.W.3 at the gate at 3.15 a.m., in relation to the arrival of ASP Peter Paut. His reply was: “I did make an entry about the arrival of ASP Peter Paut in the station diary. When he arrived, P.C. Yunus was at the gate. The time of arrival was about 3.15 a.m., according to the government clock. When I entered the time in the diary, I looked at the clock. ASP Peter Paut was with me for about 4 minutes. Soon after he left, Yunus went back to the Istana. He came back in a car at about 3.30 a.m.” During the course of cross-examination, D.W.8 was asked about the crowd at the gate, and he mentioned P.C. Yunus and P.C. Kassim being at the gate. In view of his evidence in chief, I consider that the mention of P.C. Kassim was a slip on his part, and does not in any way affect his credibility. It seems clear that what he meant to say was P.C. Ali Hassan. P.C. Faizul bin Zainal Amran (D.W.9) testified that he was on sentry duty at the Istana gate between 1.00 a.m. and 4.00 a.m. on 22nd April 1985. He stated that normally, instructions for people to enter the Istana were given by telephone and that such permission was also given by P.W.1 through the telephone. D.W.9 corroborated the evidence of D.W.8 about the latter receiving instructions to let Datuk Harris and his escort, which was relayed by D.W.8 to him. This was at about 2.40 a.m. At about that time, D.W.9 saw P.W.3, who approached him but did not speak to him. P.W.3 came ina car. This is at variance with the evidence of D.W.8, who stated that P.W.3 was walking. As mentioned earlier, I regard both witnesses as honest and independent witnesses who gave evidence on events as they remembered them, and any contradiction in their evidence does not affect their credibility. Both witnesses corroborated each other that they saw P.W.3 at about 2.40 a.m. at the gate. D.W.9 corroborated the evidence of D.W.8 about the coming of ASP Peter Paut at 3.15 a.m. when P.W.3 was at the gate and after ASP Peter Paut left, P.W.3 went back to the Istana. D.W.9 also corroborated the evidence of D.W.8 about the coming of P.W.3 and P.W.4 to the gate at 3.30 a.m., the coming of a group of cars at about the same time, and the checking and letting in of 5 cars by P.W.3 and P.W.4, including CPS 203. D.W.9 continued: “In my experience, neither54 Malaysia [1987] LRC (Const) of them had in the past checked cars into the Istana. P.C. Yunus told me that he was checking the passengers of the cars — whether they were the persons permitted to enter the Istana. He said it was on the instructions given by TYT. I did not do anything. After I had been asked by Corporal Rashid, then I told him about this.” D.W.9 also corroborated the evidence of D.W.8 about P.W.4 letting in some people, although he did not know how many. D.W.9 further corroborated the evidence of D.W.8 about the coming of Datuk Herman Luping and that the latter was seen talking to P.W.4, although he did not know what they were talking about. In this connection, D.W.8 stated that Datuk Luping was refused entry by P.W.4. D.W.9 testified that he saw P.W.3 and P.W.4 went back to the Istana on foot, leaving the close escort car at the place where it was parked. D.W.9 was cross-examined on the way P.W.3 checked the cars in. He stated that P.W.3 stopped each car as it came to the gate; and after each car was checked, P.W.3 asked D.W.9 to open the gate to let the car through. After the 5 cars passed, the gate was closed. It is the evidence of Sunarno bin P. Sudarso (D.W.16) that at about 2.20 a.m. he was asked by P.W.4 to open the main door of the Istana building as Datuk Harris would be coming. No mention was made by him that he was also informed that Tun Mustapha would be coming, nor was he cross-examined on this. He stated that at first, he did not know that Tun Mustapha was at the Istana, but was informed later at about 4.00 a.m. to 4.30a.m. At the end of the case for the defendants, and after considering the evidence for the defendants, including the evidence of D.W.1 and taking into account all the inconsistencies and contradictions in the evidence of that witness and the criticisms made thereon in the written submissions of LCP, I was satisfied that the defendants had made out a case for the plaintiff to answer on the issue of whether the plaintiff's entry was at the invitation or with the permission, of D.W.1. The plaintiff called his three witnesses as earlier mentioned. I now proceed to consider whether, on the evidence as a whole, the plaintiff's entry was at the invitation or with the permission of D.W.1. This would entail consideration of the evidence of the plaintiff's witnesses and weighing it against the rest of the evidence, including documentary evidence. I shall first deal with the evidence of Constable Ali Hassan bin Muyong (P.W.4). Of the evidence of this witness, LCP stated, quite rightly, that the matter of when he made the relevant entries pertaining to certain events which occurred on 21st April 1985 and 22nd April 1985 in his notebook (Ex. P63) has become a most important feature of his evidence. It was conceded that, if P.W.4 had lied on this aspect his credibility would be in doubt. It was, however, submitted that P.W.4 is an honest witness, albeit easily frightened, readily confused, incoherent, and incapable of understanding questions. At the outset, I would make one observation. P.W.4’s notebook (Ex. P63) was said to have been produced for the purpose of refreshing the memory of P.W.4. However, in the event, he gave evidence without having to refer to Ex. P63, although, in cross-examination, he admitted° ° > Mustapha v Mohammad and Another (Tan, J.) 55 that he had a very poor memory of what happened “that night”. In chief, P.W.4 stated that he had never worn a watch, and that he maintained a notebook for 21st/22nd April 1985. The notebook was produced as Ex. P63. Entry 508 relates to an event occurring at 0845 hours on 21st April 1985 and Entry 700 at 0800 on 22nd April 1985. He stated that he made Entries 508, 509 and 600 on 22nd April 1985, in the daytime. As to Entries 601 to 700, he recorded them on the same day, in the morning. Ex. P63 was produced in Court wet, with the edges of some pages not intact. P.W.4 explained that the condition of Ex. P63 was attributable to it having been left in his trouser pocket; and his wife having soaked the pair of trousers overnight and washing them the following day, with Ex. P63 still inside the pocket. P.W.4 was cross-examined at length about how Ex. P63 became wet, and whether it was deliberately done. He was also cross-examined about what appeared to be torn or frayed edges of some pages in Ex. P63. Having considered the evidence on these matters, I am not prepared to find that P.W.4 had deliberately caused Ex. P63 to be in the condition in which it was produced in Court. P.W.4 testified that sometime at midnight, after P.W.1 gave instructions to all bodyguards and close escorts to tighten security at the Istana, he and P.W.3 were instructed to patrol the Istana compound. They went separately in different directions. P.W.4 deposed that he went to the gate and a few minutes later, P.W.3 arrived. It was on this occasion that ASP Peter Paut arrived. After P.W.3 had spoken to the ASP, P.W.3 and P.W.4 returned to the office of P.W.1. The visit of ASP Peter Paut was recorded in Ex. P63 as having occurred at 24.30 hours on 21st April 1985. P.W.4 testified that as to entries on times, sometimes he asked the times from friends; and furthermore, there was a clock in his car. As to the time of Peter Paut’s visit, there is a conflict of evidence between P.W.4 and D.W.8 and D.W.9. I have no hesitation in accepting the evidence of D.W.8 and D.W.9 in preference to that of P.W.4, for the reasons given earlier on the evidence given by these two witnesses. I find that ASP Peter Paut came to the gate at 3.15 a.m. on 22nd April 1985, as stated and recorded by D.W.8. One of the events which the plaintiff alleges occurred, involving D.W.1 and P.W.1, P.W.3, P.W.4 and Corporal Sunoh Karto, D.W.1’s bodyguard, and which, if true, indicates that D.W.1 had invited the plaintiff to the Istana, was one which was described by P.W.4. It was also described by P.W.1 and P.W.3, although they differ in some respects. P.W.4 testified in chief: “At about 2.30 a.m., I myself, Constable Yunus, Haji Mandalam and Corporal Sunoh were inside that room listening to the radio. Not long after that, I heard knocks behind Haji Mandalam’s office. After that, I got up and drew the curtains. I noticed TYT outside, behind Haji Mandalam’s office. Then I said: “TYT TYT” to all the personnel who were inside the room. Then I went out followed by the others, to meet TYT behind Haji Mandalam’s office. I arrived first. TYT instructed me. He said: ‘Call Sunarno. Open my office and open the main door of the Istana.’ He also said Tun Mustapha will come to the Istana. So I called Sunarno. When I arrived at his house, I saw that it was dark. I knocked at his door, and he came out. I informed Sunarno that I was delivering the instruction from TYT. I informed Sunarno that TYT asked you to go to his56 Malaysia [1987] LRC (Const) office, to open his office and also to open the main door to the Istana. I informed him that Tun Mustapha would be coming to the Istana.” In respect of this part of the evidence of P.W.4, it is pertinent to observe that, in cross-examination, when he was asked when he heard about the result of Datuk Harris he stated that he heard D.W.1 mentioned about it at about midnight at the Istana at the time when the latter knocked at the back of P.W.1’s office. He further said that D.W.1 told him that Datuk Harris had lost, at the time D.W.1 asked him to go for Sunarno. P.W.4 also stated that that was about 1 minute before the others arrived. In this connection, it is also pertinent to observe that the distance between the office of P.W.1 and the corridor behind it where the alleged incident took place was no great distance, and, if P.W.4 was telling the truth that he went out first followed by the others, it is, in my judgment, inconceivable that the interval between the time when P.W.4 reached D.W.1 and the time when the others did would have been as long as 1 minute. Further, whereas it was stated that the alleged incident in the corridor occurred at about 2.30 a.m., P.W.4 stated that D.W.1 told him, on the same occasion, that Datuk Harris had lost, at about midnight. Bearing these factors in mind, and also the differences between the version on the alleged incident given by P.W.4 and the respective versions given by P.W.3 and P.W.1, and for the reasons to be given later in relation to the assessment of this witness as a witness on other relevant matters, I do not consider that P.W.4 was telling the truth when he gave evidence about the alleged incident. I do not therefore accept his evidence on the alleged incident — and this, in spite of the entry relating thereto, relating as Entry 605 in Ex. P63, in respect of which exhibit I shall deal with later. P.W.4 testified that it was as a result of an instruction from D.W.7 when the latter arrived at the Istana with D.W.2 that he went to the gate, and there saw P.W.3 who was outside the gate then. He stated that after arrival, D.W.7 spoke to Sukarti, the Private Secretary, and then came to see him at the bodyguard room, and told him: “If Tun Mustapha’s group arrive, allow them to enter’, and instructed him to telephone the guard-room. He could not get through, and on being informed of this, D.W.7 instructed him: “Better for you to go down”, and that was how he saw P.W.3 outside the gate, during which occasion, the event about the entry of the plaintiff occurred. On this aspect of the evidence of P.W.4, the evidence of D.W.7 reads: “When we arrived at the Istana, we got out of the car and I saw TYT’s ADC Mandalam, his P.S. Sukarti and a few others - I could not remember who they were. I did not pay particular notice as to how they were dressed. I said: ‘Where is TYT?’ Mandalam replied that TYT was upstairs and would be coming down shortly. He invited us to go into TYT’s room. We waited in TYT’s room. Not long afterwards, TYT came.” There is no mention whatsoever in the evidence of D.W.7 that he ever approached P.W.4 on that occasion; nor that he had spoken to the latter or given him any instructions. I consider D.W.7 to be an entirely honest, independent and impartial witness. What was alleged against him by P.W.4 relates to quite an important matter; and if P.W.4 was telling the truth, it would be indeed surprising that D.W.7 would not have remembered the matter and mentioned it in his evidence. He was not cross-examined. It may be that at >o a ® © = Mustapha v Mohammad and Another (Tan, J.) 57 the material time no proof of evidence had been taken from P.W.4 — I know not. Further, the allegations would have meant that, in the presence of the ADC, D.W.7 chose not to give any information or instruction about such an important matter to him, but preferred to give it to P.W.4, who was under the ADC. To my mind, this is incredible. In cross-examination, he agreed that he was at the gate at 3.00 a.m., more or less. It was then put to him that, if that was so, and he waited at the gate until the plaintiff came, D.W.7 could not have given him any instructions. To this, P.W.4 maintained that D.W.7 did give him instructions. If what P.W.4 said were true, it would have meant that D.W.8 and D.W.9 were not telling the truth when they both stated that P.W.4 came in a car together with P.W.3. In this connection, I have found D.W.8 and D.W.9 to be witnesses of truth whose evidence I accept. For the reasons given, I find that, if D.W.7 had indeed given the instructions alleged to P.W.4, the former would have said so in his evidence, and the fact that no such instructions were mentioned in his evidence, meant, in the circumstances, that the allegation of P.W.4 against D.W.7 cannot be accepted. I further find, considering the evidence of P.W.4 in the light of the whole evidence, and bearing in mind that cogent evidence is required to draw any such inference against P.W.4, that P.W.4 gave the evidence under discussion to justify his presence at the gate at about the time when the plaintiff arrived; and to counter the evidence of D.W.8 and D.W.9. P.W.4 then gave evidence about the arrival of the plaintiff at the gate and the circumstances under which the latter was allowed entry. He attributed the checking of the cars to P.W.3. He stated that, when P.W.3 checked the Mitsubishi car used by the plaintiff, the latter informed him that the plaintiff was inside it; and he answered: “There is instruction.” This does not appear in the evidence of P.W.3. The evidence of P.W.4 seems to indicate that he did not play an active role in checking in the cars. In this connection, I prefer without any hesitation the evidence of D.W.8 and D.W.9 that both P.W.3 and P.W.4 were involved. P.W.4 admitted that he allowed six people to enter, one of whom, Hj. Karim Ghani, brought with him an envelope which he wanted to give to D.W.7. This was not put to either D.W.8 or D.W.9. As to P.W.4’s notebook (Ex. P63), he was cross-examined at length on when he obtained it and when he surrendered it to O.C.S. Sgt. Awang bin Haji Shahrin (P.W.5). He gave conflicting evidence on when he obtained it. In his evidence in chief, he stated that, if he was not mistaken, he surrendered the notebook in August 1985, and asked for it from the police station at Karamunsing on 10th February 1986, because he saw LDC asking for the notebook of P.W.3 in Court on the same day. In cross-examination, in respect of some questions which could not admit of any mistake or misunderstanding on his part, he indicated that he obtained the notebook in August 1985. This contradicts his evidence in chief that he surrendered it in August 1985. He also contradicted himself in cross- examination when, in answer to a question whether, when he was handed the notebook in August 1985, it was completely blank, he replied in the affirmative; but subsequently stated that there was “sudah ada isi”. He also contradicted himself in cross-examination when, on the one hand, he said that before 1st April 1985, he had no notebook; while, on the other hand,58 Malaysia [1987] LRC (Const) he stated subsequently that from 1974 to August 1985, he had no notebook. Subsequently, he stated that he was confused when he stated that he got the notebook in August 1985, and did not know how he answered the day before. The evidence of P.W.4 as to when he obtained the notebook is clearly far from satisfactory. Two witnesses, P.W.5 and Sgt. Wahab bin Udin (P.W.6), were called by the plaintiff to support the evidence of P.W.4 that he received the notebook from P.W.5 between February and March 1985, and that it was in August 1985, that he surrendered it to P.W.5. Although certain aspects of the evidence given by P.W.5 do not appear to be satisfactory as, for example, his evidence that, on the one hand, he knew from the newspapers that he was involved in the issuing of the notebook; and his evidence that, on the other hand, it was a police officer who told him that he as O.C.S. was involved. However, I am not prepared to regard this witness as a witness whose evidence as to he being the person who issued the notebook Ex. P63 to P.W.4, should be rejected, particularly viewed in the light of the evidence given by P.W.6, whom I have no reason to consider to be an unimpartial witness. Further, I also take into account the fact that the entries in Ex. P63 cover the period from Ist April 1985 to 18th July 1985. In my view, it would have been a remarkable feat on the part of P.W.4 to have been able to write in all the entries in Ex. P63 covering the whole of that period if the notebook had been issued to him in August, 1985, subsequent to that period unless all the entries were invented. For the reasons given, I am prepared to accept the evidence of P.W.5 that Ex. P63 was issued by him to P.W.4 in February or March 1985. I now come to the crucial question as to when Entries 508 (08.45 hours on 21st April 1985) to 700 (08.00 hours on 22nd April 1985) were recorded by P.W.4 and whether they were done on 22nd April 1985, as he alleged in his evidence. In his evidence in chief, when he was asked how, when he had no watch, he remembered, in relation to Entry 603, that Peter Paut came to the gate at 24.30 hours, as recorded, P.W.4 replied that he just estimated the time. Thave earlier dealt with the matter recorded under this entry. P.W.4 was cross-examined at great length on the entries mentioned earlier. Questions such as those pertaining to the style of writing and P.W.4’s memory on the times recorded in relation to each event were raised. In considering the evidence of P.W.4 on the relevant entries made in Ex. P63, I have to bear in mind that his evidence as a whole has to be considered, and weigh it against the whole of the evidence. Further that where a witness has been found to be not telling the truth on certain matters, it does not necessarily follow that that would be so in respect of other matters, which have to be independently and separately considered. Under cross-examination, P.W.4 admitted that he could not translate time in terms of hours. When asked how he could make the entries in Ex. P63 in terms of hours, he replied: “Because I looked at the wall clock at the Istana and also at my house. That was how I counted time.” I do not regard this as a convincing answer. In Court, although he got one answer right, when tested, he stated, when looking at the clock in Court which showed 9.45 a.m., that it was 22.45 hours! It seems quite clear from his own2 o a ° > Mustapha v Mohammad and Another (Tan, J.) 59 evidence that P.W.4 had difficulty in translating time in terms of hours. This seems to be evident when, in answer to questions put to him regarding markings against the entries at pp.14, 15 and 16 which show conversion of a 24-hour clock, he replied: “Because the time stated like 14.00 hours, sometimes I do not understand. That was why I made them, to make it clear.” In relation to Entry 603 regarding the visit of Peter Paut, he stated that after he returned to the Istana, he looked at the clock on the wall of the Istana, and then wrote that entry when it was daylight. I have found that P.W.4 is not to be believed on this matter. It will be recalled that he stated that he recorded Entries 508 to 700 on 22nd April 1985 during the day. He stated that he asked his friends about the times - sometimes Yunus (P.W.3); sometimes Mandalam (P.W.1); sometimes he saw the clock in the car. He stated that in making the entries, he did not ask P.W.1 or P.W.3 to help but did the recording himself. He also stated that he remembered the events that occurred on the night of 21st April 1985 and early morning of 22nd April 1985, and recorded them after looking at the wall clock at home. This answer contradicts what he had stated earlier, that he asked P.W.1, P.W.2, and looked at the clock in the car. Further, if, as he stated, he was able to record the times in relation to the events under each entry after looking at the clock at home, it is difficult to believe how, on his own admission that he was unable to translate time in terms of hours, he could have done so in respect of each of the entries as recorded. If his memory was so good in relation to the events of 21st April 1985 and 22nd April 1985, how was it that he did not record the arrival of the plaintiff in Ex. P63? When questioned, he replied: “I don’t remember all that at the time as I was busy.” He stated that he did not record later because he did not only concentrate on that occasion. Subsequently, in further cross-examination, he stated that he had a poor memory of what happened that night. The answers to some of the questions put to him in cross-examination were contradictory or difficult to believe and there is no reasonable explanation why that should be so. For example, after being asked three times whether he knew that this case was about the appointment of a Chief Minister, he replied at first that he did not remember; and then gave an affirmative answer. When asked when did he first know, he stated that it was in April, when he received the subpoena; yet, these proceedings were not instituted until May! Again, he initially disagreed that what he did at the gate on 22nd April 1985 was outside his normal duties; but later agreed that that was so. He had earlier admitted that what he recorded in Ex. P63 included his duties and instructions given to him. Entry 605, which relates to the alleged incident outside the office of P.W.1 at about 2.30 a.m. on 22nd April 1985, was put to P.W.4 sentence by sentence. He admitted that all that was recorded in that entry was evidence and did not relate to duty or instruction; and that it was exactly the evidence he gave in Court. When questioned as to why he had to include matters when they were not instructions, he replied that it was just for his own reference; but not for any particular purpose. He admitted that they were recorded so that he could study it and give evidence in Court. The most revealing evidence on the recording of Entry 605 was given by60 Malaysia [1987] LRC (Const) P.W.4 towards the end of his cross-examination. The relevant part reads: “Q. Put it to.you that all that was written under Entry 605, from P.17 to P.24, was written long after 22nd April 1985. Agree? Yes. |. Could you tell how long after 22nd April 1985 did you write this? I wrote it down on 22nd April 1985. . It cannot be true, because at that time you did not know there was to be a court case. (Court; Interpreter explains questions several times.) I do not remember. . You can’t remember when you wrote it. Is that right? When I said I do not remember, I mean I do not remember when I made the entry which starts from 21st April 1985. . Since you said it was written to help you in court case, entry from 2st April 1985 could only have been written after you are aware of the court case. Agree? ‘A. Yes, Lagree. I understand the question.” ORO> oS BOD It is clear from the above questions and answers, that P.W.4 admitted having made the entries starting from 21st April 1985 after he became aware of the court case, which was commenced in May 1985, more than a month after 22nd April 1985. This is in direct contradiction to his earlier evidence that he made the entries on 22nd April 1985. On this evidence alone on a crucial matter involved in this action, I consider that that is sufficient to establish that P.W.4 is not a truthful witness, whose evidence cannot be believed. I had earlier dealt with certain other unsatisfactory aspects of the evidence of this witness which I also find to indicate that P.W.4 is not a credible witness. Further, his explanation on the numbered entries is equally unconvincing. Further, his credibility is also in doubt when one looks at the dates in the Entries 603, 604 and 605, which respectively show 21st April 1985, when they should have been 22nd April 1985 respectively. LCP has described him to be a witness who was easily frightened, readily confused, incoherent, and incapable of understanding questions. In this connection, great pains had been taken to ensure that questions put to P.W.4 were understood by him before he gave his answers. Where he indicated that he did not understand any question, it was explained to him — on occasions, more than once. I am fully satisfied that whatever answers he gave, he did so after he had understood the relevant questions concerned. Having observed him in the witness box, and after considering his evidence, I find, with respect, that, as distinct from being easily frightened, P.W.4 went into the witness box in a nervous state and, in the light of his evidence, I have come to the conclusion that the main reason for this condition is because he had come to Court after rehearsing his evidence, including that contained in Ex. P63, which as stated earlier, he had no need to refer to while giving evidence in order to refresh his memory and the fear of cross-examination on his evidence. An honest and truthful witness would have no such fear. For the reasons given, and bearing in mind that the standard of proof is> a ° ° > Mustapha v Mohammad and Another (Tan, J.) 61 that of a criminal standard of proof beyond any reasonable doubt so that I have to be sure, I find that the relevant entries in Ex. P63 on which P.W.4 had given evidence had been fabricated by him for the purpose of these proceedings. In this connection, I do not believe him when he stated that he had forgotten about Ex. P63 when the plaintiff's lawyers interviewed him. I have reached this conclusion after bearing in mind the re- examination of P.W.4 and what was submitted by LCP that P.W.4 had no motive and had no reason to give untrue evidence. To this, I would venture to remark that it is not unknown for untrue evidence to be given without a motive. I find P.W.4 to be an unreliable and untruthful witness whose evidence cannot be believed. I reject his evidence, including his evidence on the 2.30 a.m. incident and the evidence relating to the circumstances under which he went to the Istana gate and what happened there, except his admissions. Inow come to deal with the evidence of Constable Mohamad Yunus bin Mohamad Yasin (P.W.3). In his evidence in chief, he corroborated the evidence of P.W.1 that the latter instructed him to go to the Istana at 8.00 p-m. on 21st April 1985, although he stated that such instructions were given at 2.00 p.m., whereas P.W.1 said that it was at 11.00 a.m. P.W.3 testified that, between 9.00 a.m. and at about 1.00 a.m. he went out to patrol the Istana grounds. At about midnight, on instructions from P.W.1, he and P.W.4 went out on patrol, but they went different ways. At about 1.10 a.m., when he went to the guard-house at the gate, he saw ASP Peter Paut talking with D.W.9. He had a conversation with the ASP. Before that, he saw P.W.4 walking towards the gate, after which they walked together to the gate. After the conversation with the ASP, he returned to the Istana on foot with P.W.4. P.W.3 did not agree with the time, 3.15 a.m., given by D.W.8 when ASP Peter Paut came to the gate. Also with the evidence of D.W.8 that during the visit of ASP Peter Paut, P.W.3 was alone. On these matters, I have commented on the evidence of D.W.8, which was corroborated by the evidence of D.W.9. As between the version of D.W.8 and that of P.W.3, I prefer the version of D.W.8, for the reasons already given. . P.W.3 then related how he went to the guard-house again at about 1.30 a.m., and after he went back to the Istana, on instructions from P.W.1 he went with P.C. Kassim, the other close escort driver, to the Private Secretary's house with a message from P.W.1 that Datuk Herman Luping wanted to talk to the Private Secretary through the telephone. On the other hand, in cross-examination, P.W.1 stated that “I only asked them to say that Datuk Herman Luping wanted to contact Sukarti because of something important, to arrange for swearing-in.” After passing the message, he was informed by the Private Secretary that the latter would go to the Istana. This evidence is of course hearsay. P.W.3 returned to the Istana at more or less 2.00 a.m. In cross-examination, P.W.3 stated that after that, he was inside P.W.1’s office, chit chatting with P.W.1, Sunoh Karto the bodyguard of D.W.1, Kassim and P.W.4, and listening to the radio. He remained at the office for more or less 25 minutes. When asked about the evidence of P.W.1 regarding his receiving a telephone call in his room from Puan Zubaidah, the Personal Assistant to Datuk Harris, at about 2.15 a.m., P.W.3 stated62 Malaysia [1987] LRC (Const) that he did not remember. Neither did he know about whether P.W.1 going upstairs to tell D.W.1 about the telephone call. He also did not remember about what was stated by P.W.1 that after receiving Puan Zubaidah’s telephone call, P.W.1 asked Corporal Sunoh Karto to go into his room to man the telephone. In his evidence in chief, P.W.3 related the events concerning what happened at 2.30 a.m. He stated: “I heard knock on the glass behind the ADC’s office. After Constable Ali Hassan drew part of the curtains, he said: ‘TYT. TYT.’ I saw TYT was outside; immediately all of us in the ADC's office went out. We went towards where TYT was. When we arrived near TYT, TYT did say (something) to Constable Ali Hassan. I could not hear clearly what was being said to Constable Ali Hassan. After that, TYT was facing me. He said: ‘Datuk Harris and Tun Mustapha together with his party will come to the Istana’; and TYT instructed me to go to the guard-house. He. said: ‘You go to the guard-house. Inform the guard-house that Datuk Harris, Tun Mustapha and his party will come to the Istana. Allow all of them to enter.” In cross-examination, he stated that he forgot to make any entry in his driver's form (Ex. D62) because he forgot to write down. He did not however state that such events were not normally recorded in a driver’s form. In his evidence in chief, he stated that he could not hear clearly what was said by D.W.1 to P.W.4. However, in cross-examination, he said: “I did hear TYT said to Ali Hassan. What I heard was the word, Tun Mustapha. Then he mentioned Sunarno. That was before he spoke to me.” It seems strange that this evidence was not given by P.W.3 when he was examined in chief. The differences between the version given by P.W.1 and his were put to P.W.3 regarding the 2.30 a.m. incident. They include the omission of “‘and his party” in relation to the coming of the plaintiff and Datuk Harris, in the evidence of P.W.1. As against the mention of “allow all of them to enter” in P.W.3’s version being referrable to the party of “Datuk Harris and Tun Mustapha,” that in the version of P.W.1 was referrable to “Datuk Harris and Tun Mustapha” without mention of “his party’. It was suggested that P.W.3 made up the version about “his party” and “allow all of them” to explain something which P.W.1 could not explain earlier. The reply of P.W.3 was that he did not agree, and he denied that he made it up, and that he was stating what he received as instructions. P.W.3 stated that D.W.1 had never before given him an instruction directly to him in the company of bodyguards and the close escort driver Kassim, but added that D.W.1 could give instructions to anybody he felt right. P.W.3 was asked about the necessity of using the telephone in P.W.1’s room to transmit D.W.1’s instructions to the guard-house, while there was a telephone outside which was nearer. P.W.3 at first replied that he had forgotten about that telephone. When it was pointed out that that telephone must have been very well known to him, he stated that sometimes that telephone was out of order. He subsequently reverted to his explanation that he really could not remember about that telephone, which he had completely forgotten.o = Mustapha v Mohammad and Another (Tan, J.) 63 As to his evidence on his trips to the Istana gate, I prefer without hesitation the evidence of D.W.8 and D.W.9. I also prefer their evidence, for the reasons already given, as to what transpired at the gate on the arrival of the plaintiff. I find it incredible that, if his account about the 2.30 a.m. incident were true, he would have shouted instructions to the gate guards from the top of the slope behind the guard-house. I find on the evidence of D.W.8 and D.W.9, that P.W.3 made three trips to the gate, at 2.40 a.m., 3.15 a.m. and 3.30 a.m. respectively. I also find, on the evidence accepted by me, that D.W.8 and D.W.9 were not, as alleged by P.W.3, informed about the coming of Datuk Harris and the plaintiff and no instructions had been given to them to admit these two celebrities; and that it was only after the plaintiff had been checked in by P.W.3 and P.W.4 that they came to know about the entry of the plaintiff. P.W.3 admitted in cross-examination that D.W.1 had never given instructions to him in the presence of the ADC, bodyguards and the other close escort driver. He also admitted that he had never before done what he did in checking cars or people into the Istana; and that what he had done on that occasion were outside his normal duties. However, he said that, whatever instruction was given to him, he obeyed orders. As to why he helped at the gate, he said he did it on his own initiative; and that he was not instructed to do so by D.W.1. He stated that he assisted the guards on his own free will; and for the good and safety of the Istana, as the security of the Istana was also his responsibility. However, he gave no satisfactory explanation about this. When it was pointed out to him that the plaintiff * and Datuk Harris and the plaintiff's party posed no security risk, his reply was, “As for me, before I think of the good side, first and foremost I think of the security for the good of everybody” — a rather strange and unconvincing reply, in view of the personalities named, and in view of his admission that neither D.W.1 nor P.W.1, nor anyone else, had told him that there was a security risk. On the other hand, on being asked what made him to volunteer, according to him, to tell D.W.8 that he would assist D.W.8, he replied that, in his opinion, it might be due to the busy situation, meaning the arrival of Datuk Harris, the plaintiff and his party, with no mention of security or safety of the Istana. P.W.3 was asked whether P.W.4 was with him before the arrival of the plaintiff. His reply was evasive. He said: “That I do not know. I only knew I was alone.” Then: “Might be he came down during the busy situation”, and when asked how long before the arrival of the plaintiff, he replied that he did not know. He stated that he could not remember whether P.W.4 helped him to check the cars in; but subsequently stated that he had no help from P.W.4. On being asked why he did not record in the bodyguard diary (Ex. P60) the entry of the plaintiff, he stated that he thought that D.W.8 had recorded it in the guard-room diary (Ex. D32). He subsequently stated that it was because at the time the situation was busy and it never occurred to his mind to record it down. He later reverted to his original version. P.W.3 gave evidence that after the swearing in of the plaintiff, he and some bodyguards and close escorts escorted the plaintiff home, using the cars used by the close escorts. This was recorded in Entry 1165 in Ex. P60. It is clear from the evidence that after the swearing in, the plaintiff did not64 Malaysia [1987] LRC (Const) leave the Istana until about 7.00 a.m. There is an obvious alteration made by someone in Entry 1165 to make it appear that the plaintiff was escorted home at 5.50 a.m. That such an alteration was done on purpose there can be no doubt as, otherwise, the entry would indicate that after the swearing in at about 5.30 a.m., the plaintiff had remained at the Istana until his departure at about 7.00 a.m. Asked about the reason for providing escort to the plaintiff, P.W.3 replied that he knew from Constable Joharin that he had received an instruction from P.W.1 to make use of the said cars to escort the plaintiff back to his house, because the plaintiff has been appointed Chief Minister. P.W.1 professed to know nothing about this, but, having regard to the fact that the bodyguards and close escorts and their drivers were directly under P.W.1, it is inconceivable that they would have used their cars which were exclusively utilised for escorting D.W.1 and his family, without the knowledge and instruction of P.W.1. Ihave found that P.W.3 and P.W.4 came to the gate at about 3.30 a.m. shortly before the arrival of the plaintiff and his party. I find on the evidence as accepted by me that this is no coincidence, and that P.W.3 and P.W.4 came with prior knowledge of the impending arrival of the plaintiff and his party. P.W.3 has given evidence that the close escort of Datuk Harris used to borrow his walkie talkie, implying that there was no walkie talkie in CPS 203. I do not believe his evidence. It is inconceivable that a close escort to such an important personage as a Chief Minister who is concerned with the protection and safety of the latter, would have been furnished with a car without a working walkie talkie or with radio communication. It is in evidence that the Istana and the plaintiff's house at Tanjung Aru are within communication distance by walkie talkie. I find on the evidence that the only reasonable inference is that the journey to the Istana of the plaintiff and the approximate time of his arrival were communicated to or known by someone at the Istana, resulting in P.W.3 and P.W.4 being at the gate at 3.30 a.m., shortly before the arrival of the plaintiff. Even on the assumption that the 2.30 incident did take place, this, on the evidence, has no connection with P.W.3 and P.W.4 being at the gate at the specified time, because of the difference in time. Hence, I find, on the evidence, that the plaintiff obtained entry to the Istana through the assistance of P.W.3 and P.W.4. I also consider it a reasonable inference on the evidence that the journey of P.W.3 and P.W.4 to the gate for the purpose mentioned, was likely to have been made on the instruction, or at least with the knowledge of P.W.1. In the light of the evidence of D.W.8 and D.W.9 involving P.W.3 and P.W.4 which I have accepted, and having observed him giving evidence, I find P.W.3 to be an unimpressive and unreliable witness whose evidence lacks credibility. He was evasive at times, as, for example, when asked about the part P.W.4 played in the checking in of the cars, and whether the latter was with him. I have referred to some of the inconsistencies and contradictions in his evidence. I have also referred to his mentioning of the names of the plaintiff and Sunarno spoken by D.W.1 to P.W.4 during the alleged incident at 2.30 a.m. in cross-examination, when he made no such mention in his evidence in chief. There were pauses, sometimes long, before a number of his answers given in cross-examination which did not give the impression that he was recollecting events, but rather thinking ofo o a > Mustapha v Mohammad and Another (Tan, J.) 65 the best way to answer. For the reasons already given, I reject his evidence that he was at the gate from 2.40 a.m. and did not leave until after he checked in the five cars and the Commissioner of Police, and this was as a result of the instruction he received from D.W.1 during the 2.30 a.m. incident as described by him. It is said that he was clearly honoured to receive an important direct instruction and was proud that he used his own discretion in the service of D.W.1, to please the latter and to fulfil what appeared to be the latter’s wishes. As to this, I would, with respect, observe that even if there were such instructions from D.W.1, the taking over the duties of checking in cars and people from D.W.8 and D.W.9, which was never done before, belies this. P.W.3 knew what his proper duties were, and the unsatisfactory replies as to why he found it necessary to take over the duties of D.W.8 and D.W.9 support this view. In this connection, his reply, after pausing, to the question as to whether he found it necessary to tell P.W.1 of what he had done at the gate was also unconvincing and cannot be believed. He stated he told P.W.1: “Tuan, I have done the duty of assisting the guard-house sincerely and on my own free will at the time of Datuk Harris, Tun Mustapha and his group’s arrival at the guard-house”, to which, he stated, P.W.1 replied: “Bagus juga” (It is good). Weighing his evidence against the rest of the evidence, I also do not believe his evidence about the 2.30 a.m. incident, and that D.W.1 gave him the instruction as described by him. Whether he has any motive or not for giving untrue evidence does not affect the matter. I find on the evidence accepted by me that P.W.3 and P.W.4 unilaterally took over the duties of gate guards at the gate by giving misleading information to D.W.8 and D.W.9, when D.W.8 and D.W.9 were capable of performing such duties themselves and that this was done in order to ensure that the plaintiff and his party obtained entry into the Istana. If it is said that P.W.3 was conscientious in performing his duties, this is not supported by his failure, without good reason, to record relevant entries in the bodyguard diary (Ex. P60) and in his car form. I shall now deal with the remaining witness for the plaintiff, Haji Mandalam bin Marziman (P.W.1), the ADC to D.W.1 at all material times. I shall do so under several heads, relevant to the subject-matter under discussion. (1) The Fish Pond Conversation P.W.1 alleged that this conversation took place after the 2.30 a.m. incident which will be dealt with later. P.W.1 gave two separate versions of this alleged conversation. In the first version on 20th January 1986, he said: “When we reached the pond inside the Istana, TYT stopped and looked at the fish, and he said to me: ‘I did receive a phone call from Datuk Harris saying that Berjaya and USNO wanted to form a coalition government; and besides that, to swear in Tun Mustapha as the Chief Minister.” The second version, given by him on the following morning, reads: “The instructions were given while we were at the pond. TYT said that hé had received a phone call from Datuk Harris. He was informed that Berjaya and USNO will form a coalition government. TYT has given the decision to appoint Tun Mustapha as the Chief Minister and invited him to the66 Malaysia [1987] LRC (Const) Istana. We at the Istana must be ready to welcome them, that is, Tun Mustapha and Datuk Harris; and to get ready for the swearing in.” It is to. be noted that the latter part of the second version takes the form of instructions: to be ready to welcome Datuk Harris and Tun Mustapha; and to get ready for the swearing in. It is also to be noted that there is no evidence to indicate that, as ADC, P.W.1 took any steps to relay these instructions to the guard-house; or to record them in the bodyguard diary (Ex. P60) or anywhere else. It is apparent that the two versions contain important differences. Whereas the first version states that Berjaya and USNO “wanted” to form a coalition government, the second states that they “will” do so. Whereas the first version mentions swearing in Tun Mustapha as Chief Minister, the second states “get ready for the swearing in”. There is no mention in the first version of (a) D.W.1 having given a decision to appoint Tun Mustapha as the Chief Minister; (b) D.W.1 inviting him to the Istana; and (c) the instruction that “We at the Istana must be ready to welcome them, that is, Tun Mustapha and Datuk Harris”. In cross-examination, P.W.1 agreed that the 2nd version was (a) much fuller; (b) much more detailed; and (c) gives more information in a much more detailed and firm form. He stated the 2nd version was the right one. In further cross-examination, he said that there is no difference between “wanted to” and “will form”; and that he cannot tell the difference between the two versions. This contradicts his earlier replies, and his replies to further questions. It will suffice to quote an example. He disagreed that the following words in the second version are important: “and invited him, that is, Tun Mustapha, to the Istana”; but later, after persistent questioning, the following questions and answers appeared: “Q. And you know that whether Tun Mustapha was invited or not is very important in this case. A. Yes, Iknow. Q. And you know that if TYT told you that Tun Mustapha was invited, that would be very important in this case. A. Yes.” He was also evasive or vague at times. One example is the following: “Q. Sth difference is you said in the second version: ‘Get ready for swearing in’, but not in the first version. Do you agree there is a difference. A. Itis the same.” Later, after further questioning, he said: “Yes, I can see the difference.” He agreed that the second version made it clear that D.W.1 was telling him to get ready for swearing in Tun Mustapha. He was questioned as to why he did not go and put on his uniform to get ready for the swearing in, and he replied that it was because D.W.1 did not mention when the swearing in was to take place. This is an unconvincing answer. Further questions and answers followed: “Q. Alll of those changes are helpful to Tun Mustapha’s case. Do you agree? °Mustapha v Mohammad and Another (Tan, J.) 67 No, I do not agree. . You think they are helpful, unhelpful or no difference. . Because the evidence I gave on 1st day was not complete. The evidence I gave on 2nd day was complete. .. When did you realise your evidence on Ist day was incomplete. . When I went back home and I thought about it. . In what way do you think it was incomplete.” OaO >O> Then followed the rather strange reply — “A. Because on the Ist day, I was in a hurry to give evidence; that was why it was not complete.” As to this reply, P.W.1 did not explain why he was in a hurry to give evidence on the first day. In Court, no one hurried him. Indeed, the Court was at pains to ensure that all the questions put to him were understood by him before he answered them; and that he had time to answer them. Then followed his listing out all the differences in the second version. He stated that he told Mr. Sri Ram the next morning that his evidence was not complete and if possible, he wanted it to be repeated. He also stated that he did not tell the said learned counsel what he wanted to say, except that there was something he had left out. I find it difficult to believe this. The following two questions and answers are also significant: “Q. So you were saying that you were somebody who did not know what this case was really about or what you were here to prove. Right, isn’t it? A. Yes. Q. Can you explain why somebody with that state of mind should think at home after the Ist day's evidence that you have left out important evidence which you should give the next day? A. Icannot explain.” Considering these questions and answers, taken together with the other relevant parts of his evidence on the subject-matter of the alleged conversation at the fish pond, and his demeanour while giving evidence, I cannot accept P.W.1 to be a reliable witness of truth whose evidence is credible and can be accepted, in relation to this alleged conversation. He had ample opportunity to state on the earlier occasion what he gave in evidence in the second version; he gave no explanation why he was in a hurry; no one hurried him; and he was given ample time and opportunity to give his evidence. I therefore arrive at the only reasonable conclusion that, after the previous day’s proceedings in which the first version was given by him and realising that he had not given satisfactory, as distinct from incomplete, evidence in the first version, he sought to supplement it by giving the second version the next day. I do not believe him when he stated that he did not know what the case was about or what he was in Court to prove. I also find that the allegations in the two versions to be inherently incredible for the following reasons: (1) In cross-examination, P.W.1 stated that he knew that whether the plaintiff was invited was very important in this case. He also said that if68 Malaysia [1987] LRC (Const) Q (3 4 2 D.W.1 told him that the plaintiff was invited, that would be very important in this case. In this connection, D.W.1 was cross-examined about the alleged 2.30 a.m. incident, and it was suggested to him that when the five security guards came out to speak to him, he told them: “Datuk Harris and Tun Mustapha will be coming.” It seems clear that this question was put, based on instructions, as the questions following that, show. There was no mention about the alleged conversation at the fish pond. It has been pointed out that P.W.1 only gave a full statement after he left the Istana. However, having regard to the admission that P.W.1 knew that the matter about the plaintiff being invited to the Istana was important, I do not believe that, when he gave his earlier statement to the legal advisers of the plaintiff, P.W.1 would have conceivably omitted to give the version about the alleged conversation at the fish pond to them, as it was a very relevant matter in this regard. The instruction or remark about getting ready for the swearing in of the plaintiff clearly suggests that the event mentioned is not far off. The explanation by P.W.1 about not putting on his uniform because D.W.1 did not mention when the swearing in was to be done is difficult to believe, particularly when his quarters were a short distance away. The credibility of P.W.1 is affected by his admission, only after persistent questioning, that there were important additions to the second version which he had not admitted earlier. The circumstances in which these additions came about, and the unsatisfactory explanation given by P.W.1 as to the changes in content between the two versions, show that the alleged conversation cannot be believed in the circumstances. I also do not believe his explanation on re-examination in effect that what he stated in his second version was what he meant by his first version. Hence, I reject the evidence of P.W.1 about the alleged conversation at the fish pond. ) The 2.30 a.m. Incident T have earlier dealt with the evidence of P.W.3 and P.W.4 respectively on this matter and have given my reasons for not accepting their evidence. P.W.1’s version is this: “At about 2.30 a.m. I was in my office. At that time, all the bodyguards were in my office. We sat in my office, listening to the radio. At that time, something attracted my attention. Somebody tried to force open the back door, but that door was sealed and could not be used any more. After that, I heard knocks behind my back. Constable Ali Hassan opened the curtains behind me. He said: ‘TYT. TYT.’ Then I turned and noticed Tun. When I saw Tun, I got up and went out. All the other bodyguards followed me. When we reached the corridor behind my office, myself, Sunoh Karto, Yunus, Ali Hassan and Kassim Bakar met the TYT. He looked at us by moving his head from one side to the other (demonstrates). TYT directed Ali Hassan to call the chief steward Sunarno. TYT informed that Tun Mustapha and Datuk Harris wanted to come. TYT asked Ali Hassan to ask Sunarno to come and open his office and main door to his office. o >o Mustapha v Mohammad and Another (Tan, J.) 69 I saw Ali Hassan went to the servants quarters; TYT ordered Mohd. Yunus to go to the guard room to inform that Tun Mustapha and Datuk Harris wanted to come and allow them to enter. After receiving the order from TYT, Yunus went away.” I have earlier compared the version of P.W.1 with that of P.W.3. As with the versions given by P.W.3 and P.W.4 respectively, I bear in mind at all times when dealing with and comparing the evidence of all three witnesses, that human memory is fallible, and I have to distinguish between a genuine sion and one which is not; and whether it was the first time any of these witnesses was giving evidence in Court. There are differences in the three versions. Whereas P.W.1 mentioned about D.W.1 trying to force open the back door, this did not appear in the evidence of P.W.3 and P.W.4. P.W.1 stated that he went out first, followed by the others; but P.W.3 said that all who were in P.W.1’s office went out. On the other hand, P.W.4 deposed that he went out first, and the others arrived about a minute later. The descriptions as to the manner these witnesses and the others met D.W.1 in the corridor were also different. On P.W.1’s version, he was able to hear what D.W.1 said to P.W.3 and P.W.4. However, whereas the P.W.3 version mentioned “together with his party”, this is absent from the P.W.1 version. As with the position of P.W.3 and P.W.4 when I dealt with their evidence on the same matter, I also consider P.W.1’s evidence in the light of the whole of the evidence, including that of D.W.1, in reaching my conclusion. I find, on the evidence, and not forgetting that relating to the personal official diary of P.W.1 (the Red Diary) (Ex. P53), that the evidence of P.W.1 on the 2.30 a.m. incident cannot be believed, for the following reasons:~ (1) If the incident were true, there should not have been the differences between the respective versions of P.W.1, P.W.3 and P.W.4, particularly bearing in mind that the forcing of the back door is not something to be easily forgotten. Further, in my judgment, the statement of P.W.4 that he went out about one minute before the others is a major difference with the evidence of P.W.1. The allegation of P.W.1 about D.W.1 trying to force open the back door was not put to D.W.1. In this connection, I make the same observation about P.W.1’s earlier statement to his legal advisers. (3) P.W.1 could give no reason why D.W.1 should have come to the corridor in the manner described by him and give his instructions and further, P.W.1 stated he would not have expected D.W.1 to do so. P.W.1 ventured the reason that it might have been that D.W.1 phoned his office to give instructions, but the phone was engaged; but he could not remember whether his phone was in fact engaged at 2.30 a.m. In this connection, on his own evidence, P.W.1 had an intercom in his office, and having regard to the time of morning and the people then present at the Istana, it is difficult to believe and accept that the intercom was also engaged at the material time. (5) Whereas P.W.1 stated that when D.W.1 asked P.W.4 to call the chief steward Sunarno (D.W.16) to open the main Istana door, the door to D.W.1’s office, he also informed that “Tun Mustapha and Datuk (2) 4