Monday, May 11, 2009

Perak Constitutional Crisis - A Structural Overview and Objective Analysis

Finally, a judicial ruling has been made on who is the legitimate Menteri Besar of Perak. It is a ruling that is consistent with the decided legal authorities in Malaysia as have been discussed in my previous postings. The actual grounds of judgment and legal reasons are (at the time of the posting) not yet available. I have however analysed the cases pertaining to the dismissal of Chief Ministers before the ruling at and offered, what I believe, are the legal solutions available to the courts. Many opinions have been offered on the Perak constitutional crisis but it is important to objectively consider the legal authorities devoid of any political orientations or inclinations. The ruling may not bring an end to the crisis as the Barisan Nasional is already considering an appeal.

The words of Harley Ag. CJ in Stephen Kalong Ningkan No.1 should be heeded ‘(t)hat political solution may well be the only way to avoid a multiplicity of legal complications. Possibly all parties, and the people of this nation, in whom sovereignty is supposed to lie, will wish the same solution.’

Tuesday, May 5, 2009

Appointment and Dismissal of Chief Ministers in Sabah - The Kitingan Cases

Sabah has experienced more than its fair share of constitutional predicaments. Soon after the formation of Malaysia and as early as 1964 there was a potential constitutional crisis brewing in Sabah over the appointment of the first non-expatriate State Secretary. It was resolved by the intervention of the then Prime Minister, Tengku Abdul Rahman. The first full blown constitutional crisis that had to have a judicial resolution came about in 1985. Three cases involving Datuk Pairin Kitingan were considered by the Malaysian courts. The increased importance of the Sabah and Sarawak constitutional crisis cases now no doubt lies in the fact that the judicial resolution of the current Perak constitutional crisis will inevitably mean the revisiting of the findings in these cases.

Kitingan Case 1985

The results of the State general election that year were that Parti Bersatu Sabah, headed by Datuk Joseph Pairin Kitingan, secured twenty-six (26) seats whilst the coalition of the United Sabah National Organisation and Parti Berjaya led by Tun Datu Mustapha had a total of twenty-two (22) seats. The number of elected seats in the Sabah State Assembly was forty-eight (48) but there was also provision for six (6) nominated members to be appointed that brought the total number of seats in the Assembly to fifty-four (54). At about 5.30 a.m. on 22 April 1985, Tun Datu Mustapha, although only commanding twenty-two of the elected seats and in the minority, took an oath of the Chief Minister for the State of Sabah before the Yang di-Pertua Negeri, Tun Datuk Adnan Robert. On the same day, the Yang di-Pertua Negeri revoked the appointment of Tun Datu Mustapha as the Chief Minister and at about 8.00 p.m. he instead appointed Datuk Joseph Pairin Kitingan, the leader who had the majority of the elected members as the Chief Minister.

Tun Datu Mustapha in these cases applied to the court for declarations that his appointment as the Chief Minister of Sabah by the Yang di-Pertua Negri was valid and that the subsequent revocation of his appointment and the appointment of Datuk Pairin Kitingan as the Chief Minister was ultra vires and therefore null and void. In the end the courts validated the appointment of Datuk Pairin Kitingan. The High Court decided that Tun Datu Mustapha had been unconstitutionally sworn in and his appointment was null and void. The Court came to this conclusion on the grounds, inter alia, that there was no instrument appointing him as the Chief Minister; in deciding which party had the majority in the Legislative Assembly the Yang di-Pertua Negeri could only consider the elected members of the Assembly and not include the nominated members; and, the taking of the oath was insufficient to constitute a valid and complete appointment.

On the dismissal of a Chief Minister the Court opined that there was no difference between a Chief Minister being ‘dismissed’ and his appointment being ‘revoked’; Article 7 of the Sabah State Constitution could not be construed to mean that the Head of State could revoke the appointment of or dismiss a Chief Minister before the Chief Minister has had the approval of the majority of members of the Legislative Assembly; and, the State Constitution did not intend that any power of dismissal should be given to the Head of State as otherwise it would have expressly said so, as it does in the case of members of the Cabinet other than the Chief Minister.

Kitingan Case 1994

The Kitingan saga continued in 1994. In that year’s February State elections Datuk Pairin Kitingan’s Parti Bersatu Sabah (PBS) won twenty-five seats while the coalition Barisan Nasional (BN) won twenty-three seats. Datuk Pairin Kitingan was duly appointed and sworn in as the Chief Minister of Sabah by the Yang di-Pertua Negeri on 21 February 1994. Acting on the advice of the Chief Minsiter the Yang di-Pertua Negeri appointed the rest of the Cabinet in accordance with Article 6(3) of the Constitution. Under Article 14(1)(c) of the Constitution, six nominated members were also appointed to the Sabah Legislative Assembly. The plaintiff was appointed as the Deputy Chief Minister and Minister of Agriculture and Fisheries. On 13 March 1994, when three assemblymen from the PBS defected to the BN, Datuk Pairin Kitingan requested the Yang di-Pertua Negeri to dissolve Legislative Assembly so as to call for a fresh mandate from the people. However, the consent to his request was withheld by the Yang di-Pertua Negeri. On 17 March 1994, Datuk Pairin Kitingan tendered his resignation as the Chief Minister of Sabah but did not tender the resignation of the other members of his Cabinet and neither did they do the same. Their appointments were never revoked by the Yang di-Pertua Negeri. On the same day, the Yang di-Pertua Negeri appointed the second defendant as the new Chief Minister. On 24 March 1994, the Yang di-Pertua Negeri on the advice of the second defendant, appointed the third to ninth defendants as other members of the Cabinet of the second defendant. He also relied on a petition signed by thirty (30) of the assemblymen outside the Legislative Assembly.

The High Court in this case ruled that:

  • The Yang di-Pertua Negeri had a discretionary power under Article 10(2) of the Sabah State Constitution to withhold the consent to dissolve the Legislative Assembly and this power was exercisable personally according to the Yang di-Pertua Negeri’s subjective judgment, and, was therefore non-justiciable.
  • The resignation of Datuk Pairin Kitingan also affected the other members of his Cabinet even though he had not tendered their resignation. Abdul Kadir Sulaiman J was of the view that if the Chief Minister loses the confidence of the majority of the members of the Assembly and ‘refuses or does not tender the resignation of the members of the Cabinet which includes himself, or if he tenders the resignation of himself alone, the fact remains that the Cabinet is dissolved on account of him losing the confidence of a majority of the members of the Assembly and it is not necessary, therefore, for the Yang di-Pertua Negeri as a last resort to remove the Chief Minister and the other members of his Cabinet… (and) once a Chief Minister in fact knows that he has lost the confidence of a majority of the members of the Assembly, he should not wait for a vote of confidence to be formally tabled in the Assembly but should immediately take the honourable way out by tendering the resignation of his Cabinet.’
  • It was not necessary that a vote of confidence could only be taken in the Assembly to determine ‘loss of confidence’ as it could also be ascertained from the surrounding circumstances and through the knowledge of the Chief Minister himself.
  • Once the Chief Minister resigned from his position the rest of the Cabinet must also be deemed to have been dissolved.
For details, see article:

Appointment and Dismissal of Chief Ministers in Sabah - The Kitingan Cases

Wednesday, April 29, 2009

The Use of Emergency Powers to Dismiss a Chief Minister

Stephen Kalong Ningkan No.2

On 14 September 1966, just a week after the judgment of Harley Ag. CJ in Stephen Kalong Ningkan No.1, a state of emergency was proclaimed throughout the State of Sarawak by the Yang di-Pertuan Agong under Article 150 of the Federal Constitution although the Emergency of 1964 had yet to be lifted and was still in force throughout the country. Consequent to the Proclamation, the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 was passed by the Federal Parliament in a special session on 19 September 1966. It amended clauses (5) and (6) of Article 150 of the Federal Constitution by inserting after ‘this Constitution’ the words ‘or in the Constitution of the State of Sarawak’ and providing further that, notwithstanding anything in the State Constitution, the Governor may summon the Council Negri, suspend standing orders and issue directions binding on the Speaker. The main aim of these provisions was obviously to compensate for the lack of power on the part of the Governor of Sarawak to dismiss the Chief Minister although it was stated that there was also a communist threat in Sarawak. The communist threat (if any) could have been easily dealt with by the existing Emergency of 1964. The amendments to Article 150 were meant to be temporary as they were to cease to have effect six months after the termination of the Emergency. On 20 September 1966 the Governor of Sarawak acting under the said new Act and not on the advice of the Chief Minister of Sarawak (as normally required by the Constitution of Sarawak) called a meeting of the Council Negri of Sarawak for 23 September 1966. After a vote of no confidence against him in the Council Negri on that day, Stephen Kalong Ningkan was, on 24 Deptember 1966, again dismissed as the Chief Minister by the Governor of the State. Stephen Kalong Ningkan, for a second time, brought actions in the High Court of Borneo and the Federal Court to challenge his second dismissal.

The summary of the judgments of the High Court of Borneo, Federal Court and the Privy Council is set out at:

What is obvious from the study of these cases is that the Federal Government has not rolled its final dice in the current Perak Constitutional Crisis as these cases have given the Federal Government carte blanche emergency powers. The Privy Council categorically stated that the collapse of civil government was within the meaning of an 'emergency'.

The vast majority of Malaysians were silent when these excessive powers were being granted to the Federal Government. It is only now that there seems to be a greater political awareness and concern of those powers. The voices that now criticize every contemporary judgment may well like to look at where the initial foundations were laid. The judiciary has for very long acquiesced to the Federal Executive arming itself with more powers. It has reduced the concepts of the separation of powers and federation to being merely academic with less and less relationship to reality.

Friday, April 24, 2009


Stephen Kalong Ningkan (No.1)

A Brief Analysis

Malaysia has a dubious distinction of having a disproportionately high number of chief ministers of states being dismissed. In fact, the first such crisis in Sarawak was only the second of its kind in the British Commonwealth. These dismissals have caused constitutional crisis in the states and brought the Federal and respective State Constitutions into sharp focus. In nearly all the cases, the courts have been asked to interpret the constitutions by either implying certain powers into the written constitutions or including constitutional conventions that either should exist for the better governance of the state or are said to have been inherited from the British. The predominant approach of the courts has been to interpret the letter of the written law strictly and narrowly. It has also brought into focus the role and constitutional powers of the heads of states and the power of the Federation to intervene in the states using its various federal powers. The current constitutional crisis in Perak has also drawn attention to earlier decisions related to the dismissal of chief ministers of states. It is going to be necessary for the courts to resolve the constitutional issues by considering the previously decided cases. The starting point is of course the case of Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli. [1966] 2 MLJ 187. Much has already been written recently about this case by academics and constitutional lawyers. The Privy Council decision in Adegbenro v Akintola [1963] 3 WLR 63; (1963) 7 JAL 99 was extensively referred to in Stephen Kalong Ningkan (No.1) and has been repeatedly reported by some writers. It is important to remember that the Privy Council decision was distinguished and not followed in Stephen Kalong Ningkan (No.1) and even in Nigeria it was by-passed by the Western Nigeria Legislature.

Please see the brief analysis of the case of Stephen Kalong Ningkan (No.1) at

Tuesday, March 24, 2009

The use of the word 'Allah' by non-Muslims

I am of the Sikh faith. Ever since the founding of the faith more than 500 years ago, Sikhs have used 'Allah' to refer to God as well as many other terms such as Waheguru, Rab, Bhagwan, Khuda or Kudarat, Ram and Rahim and many more. The word 'Allah' appears repeatedly in their Holy Book.

The religion is epitomised by the Mool Mantar that appears as the first verse in the Sikh Holy Book. The translation of the Mool Mantar corresponds to what Prophet Mohammad proclaimed of 'Allah'. Sikhism believes that there is:

  • Only One God
  • Truth is His Name
  • He is the Creator and Protector
  • Fearless
  • Has no Enmity
  • Is the First Entity
  • Is Eternal, and,
  • Without Incarnations.

In the Sikh Holy Book, is to be found the following verse:

Aval Allah noor upaa-i-aa,
kudarat ke sabh bande,

ayk noor te sabh jag upaji-aa,
kaon bhale ko mande.

[Kabir, Sri Guru Granth Sahib pp. 1349-50]


In the beginning God brought forth His light.
From His creative power came all beings.
From One light the entire universe came forth.
So who is good and who is bad?

I do believe that as a Sikh I cannot be denied my prayer and my right to refer to God as 'Allah'. It is a right as given to me in my prayers and enshrined in the Sikh Holy Book.

Wednesday, March 18, 2009


[This posting is based on 2 published articles by the author: Preventive Detention: Part I – Constitutional Rights and the Executive, [2007] 1 MLJ lxiii; [2007] 1 MLJA 63 & Preventive Detention: Part II – Police Power To Arrest And Detain Pending Enquiries [2007] 4 MLJ cxxxii; [2007] 4 MLJA 132; and, a current work in progress: Brief Survey of the Legal History of Malaysian Law.]

There has been much focus on the infamous Internal Security Act 1960 (ISA) in recent times and even a movement calling for it to be repealed altogether. Is it the law that is bad or is it the manner in which the law has been applied by the executive and interpreted by the judiciary that has been found wanting? Although Malaysian constitutional law has its roots in English law and follows the ‘Westminster’ model and supposedly has the doctrine of ‘separation of powers’ there has been scant respect for it. In Malaysia, this constitutional concept has been reduced to being just a convenient tool to be used by the executive to increase its powers and at other times to be severely criticised as a remnant of British colonialism totally unsuitable and unsustainable in the modern Malaysia. The lack of respect for the parliamentary process is reflected in the comments of the former Prime Minister of Malaysia, Dr Mahathir, who has been quoted by Amnesty International [Human Rights Undermined: Restrictive Laws in a Parliamentary Democracy,] as saying that:

(I)n the main, Parliamentary sittings were regarded as a pleasant formality... which would have no effect on the course of the government. The sittings were a concession to a superfluous democratic practice. Its main value lay in the opportunity to flaunt the Government's strength. Off and on, this strength was used to change the constitution. The manner, the frequency and the trivial reasons for altering the constitution reduced this supreme law of the nation to a useless scrap of paper. [The Malay Dilemma, 1970, Times Books International]

In addition to the ISA, preventive detention is also allowed by the Dangerous Drugs (Special Preventive Measures) Act 1985 and the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The Human Rights Commission of Malaysia (SUHAKAM) has recently recommended that the ISA be repealed and replaced by new comprehensive legislation that, while taking a tough stand on threats to national security (including terrorism), does not violate basic human rights. [Review of the Internal Security Act 1960, 2003, at p.x. ]

The sad truth and stark reality is that the Malaysian courts have not been notably vigilant to prevent the executive employing preventive detention as an easy substitute for adequate penal laws and using it as a means to suppress political opposition and dissent. ‘Anti-government’ has at times been simply equated to being ‘anti-national’. In their Report, the Reid Commission (that was entrusted with the job of drafting the Merdeka Constitution) mentioned that the rights they were recommending had already been firmly established throughout Malaya and the guarantee of the fundamental rights would be provided by the mechanisms of: the Constitution being the supreme law; ‘the power and duty of the Courts to enforce these rights’; and, ‘the Courts would annul any attempt to subvert any of them whether by legislative or administrative action or otherwise’. [See Chapter IX, Fundamental Rights: Constitutional Guarantees, Para 161 p.70 of the Report.]

Not only have the Malaysian courts failed to annul the encroachments on the fundamental rights but their lack of judicial activism has in fact subverted those rights further. The failure of the Malaysian courts in relation to the ISA starts with the fact that they have generally accepted the subjective satisfaction of the executive for justifying the detention of an individual.

In March 1988, Article 121(1)(b) of the Malaysian Constitution was amended to make the jurisdiction and powers of the court subject to federal law rather than the Constitution itself, thus making it possible for the Malaysian Parliament to limit or abolish judicial review by a simple majority vote rather than by the two-thirds majority required for a constitutional amendment. This was followed up by amendments to the ISA in 1989 that inserted sections 8A, 8B and 8C and they seem to slam the door shut altogether on judicial review where the substantive power is exercised by the Minister under section 8. The only review allowed is limited to procedural matters.

The courts have been most reluctant to address the fundamental issue of whether the amendment to Article 121(1)(b) of the Malaysian Constitution should even have been allowed to be made. They have preferred instead to repeatedly adopt the view taken by the Federal Court in Sugumar Balakrishnan (2002) 3 AMR 2817 that ‘the court must give expression to Parliament’s intention’ and inquire no further. In Kerajaan Malaysia & 2 Ors. v Nasharuddin bin Nasir (2003) 6 AMR 497 the Court was willing to shackle its own powers when it decided that although section 8B of the ISA ousted the court’s review jurisdiction it was not unconstitutional and that ‘an ouster clause may be effective in ousting the court’s review jurisdiction if that is the clear effect that Parliament intended; that if the intention of Parliament is expressed in words which are clear and explicit, then the court must give expression to that intention.’

Malaysian legal history shows that for too long the Malaysian judges have dubiously circumvented or disingenuously interpreted any right that may have been available to a detenu into impotence. Raja Azlan Shah FJ (as His Highness then was) in Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187, summed up the true attitude of the Malaysian courts when he even went so far as to say:

‘Our courts ought not to enter this political thicket, even in such a worthwhile cause as the fundamental rights guaranteed by the constitution…’

Delivering the judgment of the Court, Steve L.K. Shim C.J. (Sabah & Sarawak) in Kerajaan Malaysia & 2 Ors. v Nasharuddin bin Nasir, has accepted that under section 8 of the ISA, the Minister has been conferred powers of preventive detention that ‘can be said to be draconian in nature’ but nevertheless valid under the Malaysian Constitution. Accepting that these rights are ‘draconian’ but, at the same time legitimate in a constitution that has a chapter on ‘fundamental liberties’, is paradoxical.

It is clear that the legislature has been active in closing the doors of judicial review but the courts themselves have also been helpful in the process. In almost all Malaysian cases, the judges have been quite content to allow the executive to exercise the power of detention unfettered by any restraining power. Higher constitutional ideals are seldom alluded to in their judgments and on most occasions it is an exercise in semantics to interpret the words of the Malaysian Constitution and other written laws to strenuously accommodate preventive detention laws.

There have been moments in the recent judicial history of Malaysia, which have given a glimmer of a hope that at last there may be small footholds on the slippery walls the detenu has to scale when attempting to challenge a detention order. However, on appeal in all cases the Federal Court has snuffed out any hope of the judiciary adopting a new and exciting approach. For fleeting moments it sometimes serves to revitalise the spirit of the Malaysian Constitution and the protection (no matter how limited) it affords to a detenu.

The current approach of the Malaysian courts only serves to reduce executive accountability and respect for human rights under the rule of law. Compliance with constitutional law, it is submitted, is not confined to compliance with the written word of the Malaysian Constitution but also the ideals on which the Constitution is based. Legislation incompatible with those ideals should be struck down. In such situations the courts should bring themselves to act in a supervisory role rather than the conservative role they have adopted for so long. Judges should be able to apply a heightened standard of judicial review and be involved in the genuine examination of the process and merits of any detention order and not be reduced to a rubber-stamping role as envisaged by the amendments to the ISA.

The concept of natural justice is not unknown especially in constitutional law. When the law in question is silent or ambiguous there is nothing to prohibit the courts from applying the principles of natural justice. In fact, even if the law has been clearly spelt out by the Federal Parliament, the courts would still be justified in striking it down if it violates basic principles of natural justice that the civilised world has come to accept as entrenched rights. Where the executive or administration has failed to observe natural justice, then deprivation of personal liberty may be characterised as being not ‘in accordance with the law’ and any person detained should be given relief. Malaysian courts have largely ignored that concept in the interpretation of preventive detention laws and will either rue that fact or will have to start being innovative and use it to break the almost choking stranglehold the executive has on the rights of a detenu. At present the executive tramples these rights with impunity and marches on relentlessly obliterating the remaining rights.

Monday, March 16, 2009

Can an Australian Court Coerce the Transfer of Malaysian Land?

Recently a judgment was given in the Court of Appeal of the Supreme Court of Western Australia that seems to suggest that the provisions of the Malaysian National Land Code 1965 can be evaded and bypassed by a foreign court if it gives a judgment in personam and then decrees the transfer of the Malaysian property consequent to that judgment. The parties involved would then be required to sign the requisite transfer form in Australia and the property transferred in Malaysia without recourse to the High Court of Malaya and the need to enforce a foreign judgment. It is a judgment that can have grave consequences. The case of Singh v Singh [2009] WASCA 53 concerned a commercial dispute between two brothers. The appellant consequently became bankrupt. Although the Trustee in Bankruptcy had already investigated the transactions and decided that there were no grounds to proceed further, the respondent was seeking to declare that the transfer of the Malaysian property was fraudulently done to defeat the claims of the creditors. There was also a prior trust deed made in Malaysia, witnessed by a Malaysian lawyer, which gave the beneficial interest in the property to a third party. The appellant and other defendants filed conditional appearances challenging the jurisdiction of the Australian courts. It was submitted by the appellant (who appeared in person and argued the case against a Queen’s Counsel and a solicitor representing the respondent) that:

1. The title to the immovable property could be acquired, passed, and lost only according to the lex rei sitae (i.e. Malaysian land law).

2. There was no evidence to justify the inference that, by the comity of nations, the jurisdiction to determine the right over the immovable property had been allowed by Malaysia to Australia. An Australian Court could therefore not pass judgment on Malaysian law or direct the transfer of a Malaysian property.

3. An Australian court was the forum non conveniens as it was clearly the inappropriate forum in that:

3.1. It involved immovable property situated in Malaysia and only the High Court of Malaya had the jurisdiction, under section 340(2) and 417 of the Malaysian National Land Code 1965, to determine if the transfer of property to the registered proprietors was fraudulent and to make any relevant orders relating to the property.

3.2. The Writ of Summons in Australia was brought under section 89(1) of the Property Law Act 1969 (WA), which had no extra-territorial jurisdiction to apply in Malaysia or to override the express provisions of section 340 of the Malaysian National Land Code 1965.

3.3. The continuation of the proceedings in Australia would be vexatious and oppressive to the Appellant as there was no chance that the respondent could enforce the order, decree and judgment made by an Australian court in Malaysia.

4. It was submitted by the appellant that the Reciprocal Enforcement of Judgments Act 1958 (Revised 1972) did not apply as Australia is not a country granted reciprocal rights under Schedule 1 of the Act. It however did reflect the common law of Malaysia. Pullin JA, delivering the judgment of the Court of Appeal of the Supreme Court of Western Australia, decided that:

4.1. It was clear from section 5(2)(a)(iv) of the Reciprocal Enforcement of Judgments Act 1958 (Revised 1972) that according to the legislation there is no reason why the judgment of a Western Australian court would not be recognised in Malaysia if the judgment of the Western Australian court is a judgment in personam and the judgment debtor was resident in this State when the proceedings were instituted.

4.2. In coming to that conclusion the Court of Appeal of the Supreme Court of Western Australia ignored the next provision, i.e. section 5(2)(b), which basically provides that even in the case of an in personam judgment a Western Australian court shall not be deemed to have jurisdiction if it involved immovable property not situated in Western Australia.

4.3. Also ignored by the Court of Appeal of the Supreme Court of Western Australia was section 5(3) which also basically states that the Western Australian Supreme Court shall not be deemed to have jurisdiction if the subject matter of the proceedings was immovable property outside Australia.

5. Comity of Nations.

The Court of Appeal of the Supreme Court of Western Australia ignored the rule on the comity of nations, which provides that the courts of the adjudicating state would recognise the legitimate laws of other states, in the expectation that the other states would in turn also recognise the laws of the adjudicating state when the need arises. It is recognised as a courteous sentiment that is used to explain one country's motives for recognising legal rights acquired in another.

6. Malaysian National Land Code versus Property Law Act of Western Australia

6.1. The respondent was seeking a declaration that the transfer of the Malaysian property was with intent to defraud creditors within the meaning of section 89(1) of the Property Law Act 1969 of Western Australia and the appellant argued that the Malaysian National Land Code 1965 that grants indefeasibility of title governs transactions and dealings involving land in Malaysia and not section 89(1) of the Property Law Act 1969 of Western Australia which had no extra-territorial jurisdiction to apply in Malaysia.

6.2. The appellant further argued that the registered owner of a property can only be divested of the property by directions given to the Registrar of Titles by the High Court of Malaya under section 417 of the Code.

6.3. The Court of Appeal of the Supreme Court of Western Australia however concluded that section 89(1) of the Property Law Act 1969 of Western Australia had extra-territorial jurisdiction as it confers a right on certain persons to avoid fraudulent dispositions of property carried out with fraudulent intent and that right extended to immovable property out of the jurisdiction.

7. Enforcement of a Western Australian Judgment in Malaysia

The appellant submitted that any judgment obtained in Australia in relation to the transfer of land in Malaysia would be brutum fulmen (an empty judgment) and would render the proceedings futile. While the Court of Appeal of the Supreme Court of Western Australia accepted the respondent’s admission that any judgment obtained in the Supreme Court of Western Australia could not be registered in Malaysia, it concluded that parties could be coerced into signing the necessary transfer form and the transfer taken to Malaysia and registered in the Malaysian Office of Titles. There would be no need to enforce the judgment in Malaysia. It effectively seeks to evade and bypass the Malaysian National Land Code 1965 and the authority of the High Court of Malaya.

8. Doctrine of Renvoi

The appellant also pointed out that it was important to note that the doctrine of renvoi, which normally has very limited application in private international law, nevertheless does apply in relation to questions of title or succession to immovable property located in another country. Under the doctrine, the court would look at the private international law of the country where the immovable property is situated and apply the law the other country would apply. The rationale for this doctrine is that it was important to decide a case just as it would be decided under the lex situs because any inconsistent judgment would be of questionable validity. Unfortunately, the Court of Appeal of the Supreme Court of Western Australia made no reference to or mention of the doctrine of renvoi that obviously needed to be considered.


Judgments regarding immovable property located in a foreign jurisdiction, as foreign judgments, have no validity and they are non est so far as the area outside the jurisdiction of the adjudicating court is concerned, if they do not conform to the principles of private international law. Such judgments are an absolute nullity in the international sense.

In making the ruling, the Court of Appeal of the Supreme Court of Western Australia did not consider at all the provisions of the Malaysian National Land Code 1965 and the numerous Malaysian cases that have ruled on the relevant provisions of the Code. The ruling of the Court of Appeal of the Supreme Court of Western Australia that it can decree a transfer of the property and it can bypass the provisions of the Malaysian National Land Code 1965 is audacious and an affront to the sovereignty of Malaysian law, against the comity of nations and does not comply with established private international law principles.

* For a full discussion of this topic see: Khaira, Hardial Singh, Enforcement of Foreign Judgments over Immovable Property in Malaysia [2007] 1 QLR 34.