KUALA LUMPUR: The High Court has ruled that the action of Kelantan Regent Tengku Muhammad Faris Petra in removing his younger brother from the state Royal succession council cannot be reviewed.Justice Mohamad Ariff Md Yusof said yesterday a court of law was not a suitable forum to decide on issues involving a royal prerogative and any dispute should be resolved by the Sultan of Kelantan himself.
Kelantan Temenggong Tengku Muhammad Fakhry Petra had challenged the regent’s decision in removing him from the Kelantan Council of Succession on Sept 16 last year.
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 his decision, Mohamad Ariff held that issues of sovereignty and the royal prerogative powers were well preserved and recognised by both the Federal and State Constitutions.
“Article 62 of the Kelantan Constitution expresses the same sentiment where it provides that proceedings in court shall not affect the prerogative powers and jurisdiction of His Royal Highness and his sovereignty.
“Clearly, here we are looking at the area of the royal personal prerogative power which is not suitable for judicial review,” he said.
On the argument raised by counsel for Tengku Muhammad Fakhry that the regent was not empowered to exercise the functions of the sultan in removing him from the council, and that by doing so, there had been a usurpation of authority or power by the Regent, the court said: “The term ‘His Royal Highness’ in Article 4 of the Kelantan Constitution is defined to include the successor and predecessor to the sovereign, who in this case, is the regent.”
Mohamad Ariff further said that Tengku Muhammad Faris, who was appointed as regent in 2001 when Sultan Ismail Petra was incapacitated, could exercise the functions of the sultan without limitation during the period of incapacitation.
The court, in dismissing the leave application, also ordered Tengku Muhammad Fakhry to pay cost to the respondents.
Tengku Muhammad Fakhry filed the application for judicial review on Dec 7, last year to seek an order from the court to require the regent 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, named the regent, secretary of the Council of Succession and the Kelantan government as the first, second and third respondents 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.
Tengku Muhammad Fakhry was represented by counsel K Shanmuga, while Datuk Cecil Abraham acted for the respondents and senior federal counsel
Datin Azizah Nawawi appeared for the Kelantan government. — Bernama