KUALA LUMPUR, Dec 16 09 | Bernama
Tengku Fakhry Cannot Challenge Regent's Decision, Says Counsel
-- Tengku Muhammad Fakhry Petra cannot challenge the decision of his elder brother, Tengku Muhammad Faris Petra, as Regent of Kelantan, in removing him from the list of the next sovereign, the High Court here heard Wednesday.
Senior federal counsel Datin Azizah Nawawi said the court had no power to adjudicate the issue as the Regent's decision in revoking Tengku Muhammad Fakhry's appointment from the membership of the Kelantan Council of Succession, was absolute and should not be questioned.
"We urge this court to refuse this application for leave on the basis that the prerogative of the Regent under Article 5 of the Constitution of Kelantan on the matter of appointment and revocation of members of the council is not justiciable," said Azizah.
She was opposing the leave for judicial review filed by Tengku Muhammad Fakhry, 31, to quash Tengku Muhammad Faris's decision on Sept 16 this year, and a declaration that the revocation was contrary to Article 7 of the Kelantan Constitution.
In his application, Tengku Muhammad Fakhry also seeks an order from the court to require Tengku Muhammad Faris to restore him as a member of the council, and an order of certiorari to quash the appointment of five other members to the council.
Tengku Muhammad Fakhry, who is the third son of the Sultan of Kelantan Tuanku Ismail Petra, named the Regent, secretary of the Council of Succession (Majlis Perajaan Negeri Kelantan) and the Kelantan government as the first, second and third respondent respectively.
Five other respondents are Datuk Hashim Yusoff, Datuk Tengku Salwah Sultan Yahya Petra, Datuk Sukri Mohamed, Datuk Che Mohd Rahim Jusoh and Col. Dr Mohammad Razin Kamarulzaman.
Under Article 5 of the Kelantan Constitution, the council is responsible to confirm the succession to the throne and to determine whether there is a vacancy on the throne by reason of absence of the Sultan from the state for more than a year.
In her submission today, Azizah said the term "His Royal Highness" in the Kelantan Constitution included the Regent, and therefore the Regent had the absolute discretion on the issue of revocation of an appointment to the council under Article 7 of the state constitution.
"Such prerogative power can only be exercised by the Royal Highness alone and is therefore not justificiable," she said.
Counsel K. Shanmuga, for Tengku Muhammad Fakhry, submitted that the Regent had lesser authority since he was not appointed by the Sultan himself, but by the Council of Succession in 2001 when the Sultan was incapacitated.
He said the Regent was not empowered to exercise the functions of the Sultan in removing Tengku Muhammad Fakhry from the council, and that by doing so, there had been an usurpation of authority or power by the Regent.
"As such, allowing the Regent to alter the composition of the council and to alter appointments made by the Sultan allows the Regent to create the tribunal that is to be his "judge", as it were, in determining his fitness to succeed to the throne," he said.
"The Regent is the first line to succeed to the throne of Kelantan but his succession is not automatic. If he is not confirmed, his younger brother Tengku Bendahara as the second heir is entitled, and if that is not done so, then the applicant Tengku Temenggong is next in line to succeed."
Shanmuga in arguing that the matter was justiciable, said: "This is a good arguable case as the Regent was not empowered to make the impugned decision."
He also raised the issue that if the Regent is allowed to exercise the discretionary power, whether he is required to give the heir an opportunity to be heard before making any decision and the reasons for doing so.
In this case, said Shanmuga, no reasons were given by the respondents to Tengku Muhammad Fakhry as to the revocation of his membership of the council.
"It is submitted that the determination of whether or not the executive has exercised a power in accordance with the law, is a matter for the High Court to decide," said the counsel.
Justice Mohamad Ariff Md Yusof fixed Dec 31 to deliver his decision.