Pada tengah malam semalam Penghuni Gua membelek-belek Malaysia Law Journal Elektronik di dalam komputer peribadi. Maka terjumpalah kes YB Karpal yang terdahulu , melawan DYMM Sultan Selangor. Keputusan akhir kes, KALAH kerana YAA Hakim berpendapat :
, " Karpal tidak ada LOCUS STANDI dan ia menyalahkan proses mahkamah dan hanya menyusahkan sahaja ".
, " Karpal tidak ada LOCUS STANDI dan ia menyalahkan proses mahkamah dan hanya menyusahkan sahaja ".
Jadi di dalam kes di Perak , pada pandangan Penghuni Gua , YB Karpal juga tiada Locus Standi. Ia bukan Perak. Beliau juga tiada kaitan samada sebagai wakil rakyat, exco atau mempunyai apa-apa jawatan di dalam kerajaan Perak yang terdahulu. Kepentingan nya tidak terjejas. Beliau hanya pengerusi DAP Kebangsaan yang cakapnya sudah tidak dipedulikan oleh DAP sendiri. Jadi baca keputusan YAA Hakim dalam ke di bawah . Ini semua hanya gimik politik sahaja. Jangan bimbang Dato Zamry. teruskan kerja anda. keputusan anda tidak bertanding MT pada pemilihan UMNO bulan Mac ini satu tindakan yang tepat. Teruskan kerja. Banyak masalah nak selesaikan di Perak.
Malaysia Law Journal yang dimaksudkan ialah :
Kes Karpal Singh v Sultan Selangor (1988)
1 Malaysia Law Journal ( MLJ ) 64
Judgement
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Abdul Hamid CJ (Malaya)
His Royal Highness the Sultan of Selangor has sought to strike out the Originating Summons issued at the instance of Mr. Karpal Singh, the plaintiff, under Ord. 18 r 19 of the Rules of the High Court, 1980, and/or the inherent jurisdiction of the Court.
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By his Originating Summons, Mr. Karpal Singh seeks determination of this Court and declaration to the effect that the public statement allegedly made by the Sultan on 26 July 1987, and reported in the New Straits Times and The Star newspapers of the next day, that he would not pardon anyone who has been sentenced to the mandatory death sentence for drug trafficking in the State of Selangor, is in violation of Article 42 of the Federal Constitution ( ‘the Constitution’) in that the Sultan can only reject a petition for clemency after considering the advice of the Selangor Pardons Board and then applying his mind to the petition before him.
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In support, Mr. Karpal Singh relies entirely on the press reports as regards the statements attributed to the Sultan allegedly made at the opening of the general meeting of the Ex-Servicemen’s Association, Selangor Branch. Photostatic copies of the press reports are exhibited.
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Mr. Karpal Singh affirms that by publicly stating that he would not pardon anyone who has been sentenced to death for drug trafficking in the State of Selangor, the Sultan was effectively pre-empting any appeal to him for clemency thereby resulting in the negation of a constitutional right.
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Mr. Karpal Singh also affirms that he has the necessary locus standi to bring these proceedings by virtue of his oath of office as a Member of Parliament which enjoins him to preserve, protect and defend the Constitution.
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It is Mr. Karpal Singh’s contention that Article 181(2) of the Constitution which states that no proceedings whatsoever shall be brought in any court against the Ruler of a State in his personal capacity will not apply to the present case because the statement attributed to the Sultan was made in his official capacity.
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The application to strike out is founded on grounds that :
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a) the Originating Summons discloses no reasonable cause of action in that the issue raised therein is not justiciable;
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b) the Originating Summons is barred by reason of the provisions of Article 181(2) of the Constitution;
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c) Mr. Karpal Singh has no locus standi to maintain the proceedings he has brought; and
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d) the Originating Summons is scandalous, frivolous and/or an abuse of the process of the Court.
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LOCUS STANDI
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As regards ground C, I would firmly say that an action may not be brought to Court by a stranger to it. Indeed, generally, a person may not even institute declaratory proceedings in respect of an act which, although prejudicial to his interests, may not affect him in his private rights. (See Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536, 562 per Pickford LJ that “it does not extend to enable any stranger to the transaction to go and ask the Court to express its opinion in order to help him on other transactions.”)
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There are various approaches which a court may adopt in deciding the question of locus standi. One approach is to ask whether the plaintiff has “a cause of action.” Another approach is to determine whether the plaintiff can establish a “right” which the court may declare. Yet another approach is to require the plaintiff to demonstrate “a special injury” resulting from the subject matter of the declaration. A fourth approach requires the plaintiff to have an “interest” in the subject matter of the declaration to be litigated. A final approach leaves the question of standing to be determined by the court in the exercise of its discretion.
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In my opinion, having regard to the facts and circumstances of this case, whichever of these approaches is adopted, the plaintiff in the present case has no locus standi to maintain the proceedings herein.
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COURT FINDING
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In consideration, I would hold that this Court has no jurisdiction to entertain the Originating Summons for reasons,
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1) firstly, that it raises an issue which is not justiciable;
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2) secondly, that it does not relate to specific facts or events or if it does, these facts or events are hypothetical;
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3) thirdly, that Article 181(2) of the Constitution operates to bar the plaintiff’s claim;
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4) fourthly, that the plaintiff lacks the necessary locus standi to maintain these proceedings.
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I would also add that since the declaration sought is as to the future and it relates to theoretical issues, it is embarrassing and can serve no good purpose. It is, in my view, a plain and obvious case where the Court, in the exercise of my discretion, should strike out the Originating Summons as being one which I consider to be frivolous and vexatious and an abuse of the process of the Court.
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I hasten to add that, in the light of the Court’s finding, I see no valid reason to accede to the plaintiff’s application to amend the Originating Summons for the plaintiff to proceed against the State Government.
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Abdul Hamid CJ (Malaya)
His Royal Highness the Sultan of Selangor has sought to strike out the Originating Summons issued at the instance of Mr. Karpal Singh, the plaintiff, under Ord. 18 r 19 of the Rules of the High Court, 1980, and/or the inherent jurisdiction of the Court.
-
By his Originating Summons, Mr. Karpal Singh seeks determination of this Court and declaration to the effect that the public statement allegedly made by the Sultan on 26 July 1987, and reported in the New Straits Times and The Star newspapers of the next day, that he would not pardon anyone who has been sentenced to the mandatory death sentence for drug trafficking in the State of Selangor, is in violation of Article 42 of the Federal Constitution ( ‘the Constitution’) in that the Sultan can only reject a petition for clemency after considering the advice of the Selangor Pardons Board and then applying his mind to the petition before him.
-
In support, Mr. Karpal Singh relies entirely on the press reports as regards the statements attributed to the Sultan allegedly made at the opening of the general meeting of the Ex-Servicemen’s Association, Selangor Branch. Photostatic copies of the press reports are exhibited.
-
Mr. Karpal Singh affirms that by publicly stating that he would not pardon anyone who has been sentenced to death for drug trafficking in the State of Selangor, the Sultan was effectively pre-empting any appeal to him for clemency thereby resulting in the negation of a constitutional right.
-
Mr. Karpal Singh also affirms that he has the necessary locus standi to bring these proceedings by virtue of his oath of office as a Member of Parliament which enjoins him to preserve, protect and defend the Constitution.
-
It is Mr. Karpal Singh’s contention that Article 181(2) of the Constitution which states that no proceedings whatsoever shall be brought in any court against the Ruler of a State in his personal capacity will not apply to the present case because the statement attributed to the Sultan was made in his official capacity.
-
The application to strike out is founded on grounds that :
-
a) the Originating Summons discloses no reasonable cause of action in that the issue raised therein is not justiciable;
-
b) the Originating Summons is barred by reason of the provisions of Article 181(2) of the Constitution;
-
c) Mr. Karpal Singh has no locus standi to maintain the proceedings he has brought; and
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d) the Originating Summons is scandalous, frivolous and/or an abuse of the process of the Court.
-
LOCUS STANDI
-
As regards ground C, I would firmly say that an action may not be brought to Court by a stranger to it. Indeed, generally, a person may not even institute declaratory proceedings in respect of an act which, although prejudicial to his interests, may not affect him in his private rights. (See Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536, 562 per Pickford LJ that “it does not extend to enable any stranger to the transaction to go and ask the Court to express its opinion in order to help him on other transactions.”)
-
There are various approaches which a court may adopt in deciding the question of locus standi. One approach is to ask whether the plaintiff has “a cause of action.” Another approach is to determine whether the plaintiff can establish a “right” which the court may declare. Yet another approach is to require the plaintiff to demonstrate “a special injury” resulting from the subject matter of the declaration. A fourth approach requires the plaintiff to have an “interest” in the subject matter of the declaration to be litigated. A final approach leaves the question of standing to be determined by the court in the exercise of its discretion.
-
In my opinion, having regard to the facts and circumstances of this case, whichever of these approaches is adopted, the plaintiff in the present case has no locus standi to maintain the proceedings herein.
-
COURT FINDING
-
In consideration, I would hold that this Court has no jurisdiction to entertain the Originating Summons for reasons,
-
1) firstly, that it raises an issue which is not justiciable;
-
2) secondly, that it does not relate to specific facts or events or if it does, these facts or events are hypothetical;
-
3) thirdly, that Article 181(2) of the Constitution operates to bar the plaintiff’s claim;
-
4) fourthly, that the plaintiff lacks the necessary locus standi to maintain these proceedings.
-
I would also add that since the declaration sought is as to the future and it relates to theoretical issues, it is embarrassing and can serve no good purpose. It is, in my view, a plain and obvious case where the Court, in the exercise of my discretion, should strike out the Originating Summons as being one which I consider to be frivolous and vexatious and an abuse of the process of the Court.
-
I hasten to add that, in the light of the Court’s finding, I see no valid reason to accede to the plaintiff’s application to amend the Originating Summons for the plaintiff to proceed against the State Government.
Nota Penghuni Gua : Untuk makluman semua pelayar blog, setiap keputusan kehakiman yang terdahulu adalah bersifat mengikat. Maksudnya sekiranya keputusan di atas tidak ada pindaan dan tiada kes yang lain yang serupa yang membuatkeputusan yang berbeza maka keputusan YAA Hakim di dalam kes ini akan terpakai ( akan dirujuk sebagai undang-undang ) di dalam kes-kes yang lain selepasnya. Maknanya mahkamah akan membuat keputusan yang serupa. Jadi YB Karpal hanya berhasrat untuk mendapat publisiti murahan sahaja . Tidak lebih dari itu..................
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