THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 78 ENGLISH

Datuk Seri Anwar Bin Ibrahim v Kerajaan Malaysia and Another
Suit Number: Rayuan Sivil No. W-01(A)-416-10/2016 

Constitutional law – Constitutionality – Whether section 12 of the Constitution (Amendment) Act 1983, section 2 of the Constitution (Amendment) Act 1984 and section 8 of the Constitution (Amendment) Act 1994 unconstitutional – Whether Article 66(4) and (4A) as introduced by the Constitutional (Amendment) Act 1994 unconstitutional – Whether the National Security Council Act 2016 unconstitutional

JUDGMENT

[1] By an Originating Summons dated 20.10.2016, the appellant applied to the High Court at Kuala Lumpur for:

“1. A declaration that section 12 of the Constitution (Amendment) Act 1983 (A566), section 2 of the Constitution (Amendment) Act 1984 (A584) and section 8 of the Constitution (Amendment) Act 1994 (A885) are unconstitutional, null and void and of no effect;

2. A consequential declaration that Article 66(4) and (4A) as introduced by the Constitutional (Amendment) Act 1994 (A885) is unconstitutional, null and void and of no effect;

3. A declaration that the National Security Council Act 2016 is unconstitutional, null and void and of no effect;

4. An injunction perpetually restraining the 2nd defendant from taking or purporting to take any step or from acting or purporting to act pursuant to the National Security Council Act 2016;

5. Such further and other declaration be granted consequent upon the relief claimed herein;

6. That there be no order as to costs.”

[2] In essence the Originating Summons (OS) seeks to challenge the constitutionality of the National Security Council Act 2016 (NSCA). The NSCA had become law by virtue of Article 66(4A) of the Federal Constitution. Under that Article, a Bill which is not assented to by the Yang di-Pertuan Agong within the time specified under Article 66(4) which is stipulated as 30 days, shall become law as if it had been assented to. The appellant firstly contended that Article 66(4A) is unconstitutional because the amendment of it offended the “basic structure” of the Federal Constitution. Following thereto, the NSCA which becomes law under that provision, is therefore unconstitutional, null and void.

[3] The next ground of unconstitutionality of the NSCA as contended by the appellant is on the premise that the NSCA being a security legislation, may be validly enacted only pursuant to Article 149. Article 149 being the only provision in the Federal Constitution that empowers and allows the enactment of a security legislation. As the NSCA is not legislated pursuant to Article 149, it is not constitutional and not a valid law. The appellant also sought for an interim injunction to restrain the respondents from taking action under NSCA, pending the disposal of the OS.

[4] The learned High Court Judge dismissed the application for an interim injunction as well as the OS on the preliminary objection raised by the learned Senior Federal Counsel (SFC) that the High Court is not seised with jurisdiction to hear or determine the application, because it falls within the scope of Article 4(3) and (4) of the Federal Constitution. The jurisdiction of which, is exclusively with the Federal Court under Article 128. In coming to that conclusion, the learned Judge held herself bound by the majority judgement in Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri [2014] 4 MLJ 765 and consequently dismissed the OS. Aggrieved by that decision the appellant is now appealing.

[5] Learned counsel for the appellant Datuk Sri Gopal Sri Ram (Latheefa Koya and Damien Chan with him) first of all submitted that the learned Judge had erred in finding herself lacking the necessary jurisdiction, relying on the Federal Court decision in the Titular Roman Catholic Archbishop (supra). Learned counsel submitted that the Federal Court had in that decision wrongly interpreted Ah Thian v Government of Malaysia [1976] 2 MLJ 112, having regard to the view expressed by the Federal Court in Mark Koding v Public Prosecutor [1982] 2 MLJ 120, Ah Thian (supra) and Yeoh Tat Hong v Government of Malaysia & Anor [1973] 2 MLJ 86.

[6] Learned counsel had impressed upon us that, the challenge made in the application herein is an ordinary challenge taken in the usual way, to question the constitutionality of a statute which a High Court has the necessary jurisdiction to deal with. The learned trial Judge, it was submitted had therefore erred in saying that the application is a challenge on the Parliament’s legal competence, or for lack of power to legislate. Learned counsel reiterated that the application herein falls squarely within Ah Thian (supra). There is therefore no necessity to obtain leave pursuant to Article 4(3) and (4) as decided by the Federal Court in that case.

[7] Learned SFC Dato’ Amarjeet Singh (Suzana Atan with him) on the other hand contended otherwise. Learned SFC maintained that the scope of challenge in the OS comes within Article 4(3) and (4) of the Federal Constitution, which requires leave of the Federal Court. Hence the learned trial Judge was correct to deny jurisdiction.

[8] As a start, we begin with a close examination of the Federal Court decision in Ah Thian, which has been quoted very often as an authority on the issue at hand. At page 113 the late Tun Suffian LP in that case has stated:

"The applicant wants to attack the validity of the Firearms (Increased Penalties) Act not on the ground that it relates to which Parliament has no power to make law. In my judgment this Act deals with both criminal law and administration of justice, both matters with respect to which Parliament has power to make law (see item 4 of List 1 in the Ninth Schedule to the Constitution). The applicant says that the Act is invalid because it is inconsistent with the Constitution… Therefore clause (4) of Article 4 and clause (1) of Article 128 do not apply and the point may be raised in the ordinary way in the course of submission, and determined by the High Court, without reference to the Federal Court, and there is no need for leave of a Judge of the Federal Court.”

[9] From the above paragraph it appears that the Federal Court paid emphasis and drew a distinction on the nature of the challenge made before invoking Article 4. There is to be a distinction between a challenge on the basis that the Parliament lacks the power to legislate with that the Parliament exceeds its power in legislating. This interpretation according to learned counsel is in accord with the earlier Federal Court decision in Yeoh Tat Thong v Government of Malaysia & Anor [1973] 2 MLJ 86. This was a case where the applicant therein sought for a declaration that the subsidiary legislations made by the State Authority of Penang under the provision of the National Land Code was ultra vires, null and void. The applicant applied for leave pursuant to Article 4, but was dismissed as the Federal Court held that there was no necessity for leave because the impugned law being challenged, was not primary law made by the State Legislature and the challenge was not on the ground that there was a trespass on the federal sphere.

[10] The case of Mark Koding which was decided after Ah Thian, involved a challenge on the amendment to the Sedition Act and to Article 63. It was argued that these laws had limited the right to freedom of speech in the Parliament. The Federal Court speaking through Suffian LP held the view that the amendment to the Sedition Act and Article 63 have validly limited the freedom of speech in the Parliament. The Federal Court having found it against the appellant in that case, had observed at page 123 of the judgment that:

“Secondly we would observe that it would have been better if the learned Judge had not referred this matter to us but instead had himself decided the constitutional question which arose (he had the jurisdiction to do so: Fernandez v Attorney General)..."

[11] The Federal Court case of Rethana v Government of Malaysia [1984] MLJ 52, questioned the validity of the Employees Social Security Act 1969 as being unconstitutional, which brought the question of whether leave of a Federal Court Judge was necessary under Article 4(3) and (4) read with Article 128. The appellant in that case was challenging and seeking for a declaration that certain provisions in the Act were inconsistent with some constitutional provisions and the impugned Act was void to the extent of the inconsistencies. The Federal Court found that leave under Article 4 was unnecessary because the Act was not challenged on the ground that the Parliament had no power to enact but that some provisions were not consistent with the Federal Constitution. This, according to the Federal Court was well within the original jurisdiction of the High Court, hence no leave was then required.

[12] Thus far, it is clear from the decisions outlined above that the basis of challenge matters, before it can be decided whether to invoke Article 4 or otherwise. In cases where the challenge is on the legislature’s lack of power to legislate, inevitably leave under Article 4 becomes necessary. However a challenge plainly on unconstitutionality of a law which is within the legislative competence but for offending the constitutional provisions is not one that falls under the scope of Article 4(3) and (4).

[13] In Titular Roman Catholic Archbishop’s case, one of the issues raised before the High Court was on the validity of section 9, which was commonly found in the various state enactments (the impugned provision). This section of the state enactments seeks to control and restrict the propagation of non-Islamic religious doctrine and belief amongst Muslims and contained a provision which prohibits the use of inter alia the word Allah, in any published writings, speeches or statement, or speeches addressed at gathering of persons, etc. The validity and constitutionality of the impugned provision was challenged at the High Court.

[14] The learned High Court Judge found the impugned section invalid, null and void and unconstitutional because it exceeded the object of Article 11(4) of the Federal Constitution. On this issue, the Federal Court at paragraph 39 observed that:

“The net effect of the finding of the learned High Court Judge is that the impugned provision is invalid, null and void, and unconstitutional as it exceeds the object of Article 11(4) of the Federal Constitution. The respective States’ Legislature thus has no power to enact the impugned provision. The issue is, whether could the High Court Judge entertain such a challenge in light of specific procedure in clauses (3) and (4) of the Federal Constitution...” (emphasis ours)

[15] Having found that the ground of challenge in Titular Roman Catholic Archbishop was a challenge on the ground that “The respective States’ Legislature (thus) has no power to enact the impugned provision”, the Federal Court referred to Ah Thian and held that the application made in Titular Roman Catholic Archbishop was what was classified by Ah Thian as the proceedings of type (a) illustrated in that case. Hence leave under Article 4 becomes necessary. In Ah Thian the Federal Court had also lucidly explained how a written law can be invalidated under the Federal Constitution. It was stated there that the court has power to declare any Federal or state law invalid on any of the three grounds below:

1) In the case of Federal written law, because it relates to matter with respect to which Parliament has no power to make law, and in the case of State written law, because it relates to a matter with respect to which the State legislature has no power to make law, Article 74; or

2) In the case of both Federal and State written law, because it is inconsistent with the Constitution, see Article 4(1); or

3) In the case of State written law, because it is inconsistent with Federal law, Article 75.

(emphasis ours)

[16] It was further explained that there would be no restriction on any court to declare any law invalid on grounds (2) and (3) above, be it, being challenged by the Government or by an individual. The restriction only relates to a power to declare any law invalid on ground (1) which is subject to three constitutional restrictions, found in Article 4(3).

[17] Under Article 4(3) the validity of any law can only be questioned on the ground that the respective legislatures have no power to make law under three types of proceedings;-

a) in proceedings for a declaration that the law is invalid on the ground that the Parliament has no power to make law; or

b) if it is Federal law, in proceedings between the Federation and one or more states; or

c) if it is state law, in proceedings between the Federation and that State.

[18] Learned counsel contended that in classifying the challenge on the impugned law in Titular Roman Catholic Archbishop as falling under type (a) proceedings as enunciated by the Federal Court in Ah Thian, the Federal Court is therefore saying that whether the ground of challenge is on the basis that the legislature has no power, is the same thing as challenging it on the ground that the Parliament has exceeded its power. Specific reference was made in relation to the object of Article 11(4) of the Federal Constitution. For this reason learned counsel submitted that the Federal Court in Titular Roman Catholic Archbishop had wrongly interpreted Ah Thian.

[19] Learned SFC did not vehemently oppose the submission of learned appellant’s counsel on the interpretation of Ah Thian by the Federal Court in the Titular Roman Catholic Archbishop’s case. It was conceded by learned SFC that, that case had read the phrase “the relevant legislature has no power to make law” in clause (3) to Article 4 to cover also situations where the relevant legislature exceeds the power within its legislative competence.

[20] Learned SFC’s submission would suggest that the interpretation given by the Federal Court had effectively blurred the line between challenges made on the reason that the Parliament had no power to legislate with the reason that the Parliament had exceeded its jurisdiction.

[21] As we had alluded to earlier, the Federal Court in that judgment at paragraph 39 remarked that a finding by the High Court Judge that the impugned provision was held invalid, null and void for exceeding the object of Article 11(4), means the High Court was saying that the State Legislature has no power to enact the impugned provision. In other words, the Federal Court first found the net effect of that challenge amount to a challenge on the State legislative power which calls for the invocation of Article 4. In short the application of Article 4 comes into play when a challenge posed is a challenge on the lack of power on the part of the state legislature to legislate and not so much of equating both types of challenge to be made under Article 4.

[22] The Federal Court case of State Government of Negeri Sembilan & Ors v Muhammad Juzaili bin Mohd Khamis & Ors [2015] 6 MLJ 763 involved a challenge on section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992 which was said to be inconsistent with Articles 5(1), 8(2), 9(2) and 10(1)(a) of the Federal Constitution. The application was made by way of judicial review pursuant to Order 53 rule 3 of the then Rules of the High Court 1980, in the High Court at Seremban, where it was dismissed. The Court of Appeal allowed the appeal overruling the High Court. At the Federal Court the challenge on the validity of the law in this case was held to be taken wrongly by way of a collateral attack, referring to Titular Roman Catholic Archbishop and Abdul Karim bin Abdul Ghani v Legislative Assembly of Sabah [1988] 1 MLJ 171.

[23] There were rival arguments by parties before the Federal Court in that case as to whether the challenge was in fact on the ground that the State Legislature has no power or that it had exceeded its legislative power. The Federal Court held that the challenge on the validity of the law in that case, which was made by way of collateral attack instead of adhering to the requirement of Article 4 of the Federal Constitution was wrong. The challenge by the applicant in that case on the ground that the state enactment was in contravention of certain provisions of the Constitution therefore must be made under Article 4, because it questioned the legislative power of the states.

[24] Learned counsel for the appellant had also submitted that the learned High Court Judge at paragraph 25 of the judgment had erred in applying the case of State Government of Negeri Sembilan & Ors v Muhammad Juzaili bin Mohd Khamis & Ors (supra) because that case involves the issue of federal and state legislatures. This issue was addressed at paragraph 27 of the judgment where Raus Sharif PCA (now CJ) stated this:

"[27] ...The respondent’s argument, that the legislation on Islamic Law passed by State Legislature must comply with the provision on fundamental liberties in Articles 5(1), 8(2), 9(2) and 10(1)(a) of the Federal Constitution, is an argument that directly questions the legislative powers of the State Legislature. For all intent and purpose, it was a direct challenge to the validity or constitutionality of s 66 passed by the State Legislature of Negeri Sembilan. As stated earlier, such a challenge must be in accordance with the specific procedure as specified in clauses (3) and (4) of Article 4 the Federal Constitution.”

We agree with learned appellant’s counsel that the Federal Court found the challenge of the statutes in the case was on the legislative competence of the State Legislature and therefore required the necessary leave under Article 4.

[25] Learned SFC had cited to us that, post Titular Roman Catholic Archbishop’s cases would show clearly the legal position of this issue. First the Court of Appeal decision in Government of Malaysia v Robert Linggi [2015] 1 LNS 1515, then the State Government of Negeri Sembilan & Ors. Amongst the challenges posed in Robert Linggi was on the validity of sections 15 and 16 of the Constitution (Amendment) Act 1994, which have the effect of removing the requirement of the concurrence of the Yang di-Pertua Negeri of Sabah and Sarawak, to appoint Judicial Commissioners. The Court of Appeal observed at paragraph 43 that the “The Plaintiff’s challenge is in substance a challenge to the validity of sections 15 and 16 of the Amending Act on the basis that the Parliament had enacted a federal law which made provision with respect to a matter which, by virtue of the concurrence of the Yang di-Pertua Negeri of Sabah and Yang di-Pertua Negeri of Sarawak not having been obtained, it (Parliament) had no power to enact”. And then concluded that the challenge therefore would fall within the scope of Article 4, Clauses (3) and (4) of the Federal Constitution.

[26] Having perused through all the decided authorities cited before us, we have difficulties firstly in agreeing with learned appellant’s counsel that the application herein is the same kind as the one in Ah Thian. In our view there is a basic distinction between the application in this appeal with that of Ah Thian. In Ah Thian the application was purely on whether the Firearms (Increased Penalties) (Amendment) Act 1974 was ultra vires the Federal Constitution as it contravened Article 8(1). The Federal Court had observed that there was no challenge by Ah Thian that the Parliament has no power to make law. It was firstly found that the Parliament had the necessary legislative competence to enact the law with respect to criminal law and administration and would not call for the invocation of Article 4.

[27] Whereas in the instant appeal, the challenge arose when NSCA becomes law by virtue of Article 66(4) of the Federal Constitution. Thus, what the appellant is saying is that, but for Article 66(4) the Parliament has no power to pass the NSCA as law. We found ourselves in agreement with learned SFC that the two main basis for saying that NSCA is not a valid statute cannot be anything else but a challenge, on the power of legislature to legislate. In comparison, the appellant in Ah Thian was attacking the validity of the Firearms (Increased Penalties) Act for being unconstitutional in contravention of Article 8 of the Federal Constitution, not on the ground that it relates to a matter which the Parliament has no power to make law. As observed by the Federal Court the impugned Act in that case dealt with criminal law and the administration of justice, which are within the legislative competence of the Parliament as found in item 4 of List 1 in the Ninth Schedule to the Federal Constitution. The challenge on the validity was purely on the ground that it is inconsistent with the Constitution. Therefore clause (4) of Article 4 and clause (1) of Article 128 do not apply and the point may be raised in the ordinary way even in the course of submission, and may be determined in the High Court, without reference to the Federal Court.

[28] There is no doubt that in Ah Thian, the challenge was in fact under the second category referred to by the Federal Court in that case as "in the case of both Federal and State written law, because it is inconsistent with the Constitution”. It is not as plain and clear in the present appeal.

[29] We find it appropriate to refer to the decision of the Federal Court in Loh Kooi Choon v Government of Malaysia [1976] 2 MLJ 187. The Federal Court found the challenge made by the appellant in Loh Kooi Choon (supra) was in substance, questioning the validity of the impugned law on the ground that the Parliament makes provision with respect to a matter which it has no power to make. In that case, the challenge was on the constitutionality of the amendment to Article 5(4) of the Federal Constitution. Argument were raised on whether there is restriction imposed on the Parliament to amend some provisions entrenched in the Federal Constitution. The amendment of which provides the basis for the legislation of the impugned law. That being the case, it was held by the Federal Court that, it was a proceeding for a declaration as envisaged by Article 4(3).

[30] We draw some similarities between the OS in the instant appeal with that of Loh Kooi Choon. Both this case and as well as the present appeal before us, involved the questioning of the power of the Parliament in amending the Constitution that resulted in the impugned legislation. In the present appeal, what the applicant is saying is that without Article 66(4) the Parliament has no power to pass the Bill (NSCA) as law.

[31] In coming to the conclusion that the challenge in Loh Kooi Choon was one as envisaged under Article 4(3) of the Federal Constitution, the Federal Court had referred to the argument by counsel in relation to amendment underlying the impugned law. Wan Suleiman FJ held that the argument by learned counsel that the Parliament cannot amend any of the fundamental liberties Articles beyond what is expressly permitted by Part II itself, should be treated as a proceeding for a declaration under Article 4 of the Federal Constitution.

[32] Having considered the cases cited to us both by learned counsel as well as the SFC we are clear that the challenge by the appellant herein is indeed a challenge on the power of the Parliament. Our view is further reinforced by the second ground of challenge posed by the appellant that NSCA is a law on security, which should have been enacted pursuant to Article 149, it being a law relating to security and public order. This issue to our mind makes it plainly clear that the challenge herein falls squarely within what is contemplated by Article 4, in that the Parliament has no power to legislate NSCA unless it is enacted pursuant to Article 149.

[33] Article 149 allows the Parliament to enact laws for purposes of preventing situations stipulated under Article 149(1)(a) to (f) of the Federal Constitution, if the laws recites that action has been taken, or threatened by any substantial body of persons. And such laws may be enacted inconsistent with the provisions of Articles 5, 9, 10 or 13, or would be outside the legislative power of the Parliament, apart from Article 149 itself. The argument of the appellant that NSCA may only be enacted pursuant to Article 149 since it relates to security, must necessarily mean that the law making power of the Parliament itself has been questioned. It is rather intriguing to argue otherwise, and to say that this is not dissimilar to questioning the power of the Parliament to make laws. As such we are fortified in our view that the application herein comes within the purview of Article 4.

[34] The questioning of the amendment under Article 159 on the doctrine that it cannot alter the basic structure of the Federal Constitution was premised on the ‘basic structure’ doctrine propounded by the Supreme Court of India in Kesavananda Bharati Sripadagalvaru & Ors v State of Kerala & Another [1973] 1 SCR Supp 1. This argument relates to submission for the appellant that the original Article 66(4) was the basic structure of the Federal Constitution that had been altered. In Loh Kooi Choon v Government of Malaysia (supra), the Federal Court in dealing with similar challenge had observed that such challenge in substance questioned the validity of the law made by the Parliament, in that the Parliament cannot amend any of the fundamental liberties provision beyond what is expressly permitted by Part II itself, and was treated by the Federal Court as a proceeding envisaged by Article 4(3).

[35] Further to that in the present appeal, the statement pursuant to Order 7 rule 3 of the Rules of Court 2012, the cause of action of the appellant as stated at paragraph 4 is that “Parliament has no authority to amend the Federal Constitution and in particular Article 66 so as to alter the basic structure”. This, in our view cannot be anything else, but it is questioning the power of the Parliament to amend the impugned amendment.

[36] Finally we note that the reasons for the reliefs sought in the OS is on the basis that the “Parliament has no authority to amend the Federal Constitution in particular Article 66, so as to alter its basic structure” and that, “the NSCA was not enacted in accordance with Article 149 and therefore unconstitutional and void”. All these can only mean that the challenge posed by the appellant is questioning the power of the Parliament to legislate the impugned laws which fall squarely under Article 4 read with Article 128 and is therefore within the exclusive jurisdiction of the Federal Court.

[37] Having found so, we abide by the authorities of the Federal Court that the appellant’s application is an application questioning the lack of power of the Parliament and called for the invocation of Article 4.

[38] In any event we hold ourselves bound by decided authorities that even if the appellant can be said to be questioning the excessiveness of power of the Parliament to legislate and not the power to legislate itself the amendment to Article 66(4) and eventually the NSCA is also a matter within Articles 4 and 128, as decided in Titular Roman Catholic Archbishop as suggested by both the learned counsel for the appellant as well as the SFC.

[39] On the above reasons we dismiss the appeal by the appellant and affirm the decision of the learned High Court Judge. We make no order on costs.

Signed

ROHANA YUSUF
Judge
Court of Appeal Malaysia

Dated: 22 February 2018

COUNSEL

For the Appellant: Gopal Sri Ram (Latheefa Koya and Damien Chan with him), Tetuan Daim & Gamany, Unit A-1-10, Blok A, 8 Avenue, Jalan Sungai Jernih 8/1, Seksyen 8, 46050 Petaling Jaya, Selangor

For the Respondents: Amarjeet Singh a/l Serjit Singh (Suzana binti Atan with him), Peguam Kanan Persekutuan, Jabatan Peguam Negara, Bahagian Guaman, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya

Legislation referred to:

Constitution (Amendment) Act 1994, Sections 15, 16

Employees Social Security Act 1969

Federal Constitution, Articles 4, 4(3), 4(4), 5, 5(1), 5(4), 8(1), 8(2), 9, 9(2), 10, 10(1)(a), 11(4), 13, 63, 66(4), 66(4A), 74, 75, 128, 128(1), 149, 149(1)(a) to (f), 159, Ninth Schedule

Firearms (Increased Penalties) (Amendment) Act 1974

National Land Code

National Security Council Act 2016

Rules of Court 2012, Order 7 Rule 3

Rules of the High Court 1980, Order 53 Rule 3

Sedition Act

Syariah Criminal Enactment (Negeri Sembilan) 1992, Section 66

Judgments referred to:

Abdul Karim bin Abdul Ghani v Legislative Assembly of Sabah [1988] 1 MLJ 171

Ah Thian v Government of Malaysia [1976] 2 MLJ 112

Government of Malaysia v Robert Linggi [2015] 1 LNS 1515

Kesavananda Bharati Sripadagalvaru & Ors v State of Kerala & Another [1973] 1 SCR Supp 1 

Loh Kooi Choon v Government of Malaysia [1976] 2 MLJ 187

Mark Koding v Public Prosecutor [1982] 2 MLJ 120

Rethana v Government of Malaysia [1984] MLJ 52

State Government of Negeri Sembilan & Ors v Muhammad Juzaili bin Mohd Khamis & Ors [2015] 6 MLJ 763

Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri [2014] 4 MLJ 765

Yeoh Tat Hong v Government of Malaysia & Anor [1973] 2 MLJ 86

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