Negeri Sembilan: Can a court even look? What the Court of Appeal decides on 19 October [20/NS]

Negeri Sembilan: Can a court even look? What the Court of Appeal decides on 19 October [20/NS]

A judge in Putrajaya will not say who was right about an Undang’s removal. On 19 October, he decides something smaller, and stranger: whether he may even ask — and a century of cases, from Lagos to London, show that question has never had one settled answer.

by GK Ganesan September 27, 2026 32 Views

Since 20 September, most of this series has asked who governs Negeri Sembilan.

This essay asks a smaller question.

Can a judge even open the file?

On 19 October, the Court of Appeal in Putrajaya will not decide whether an Undang was rightly or wrongly removed.

It will decide whether any court may ask.

THE SUIT THIS ESSAY IS ABOUT

Negeri Sembilan’s crisis runs on two separate tracks. This essay stays on one of them, deliberately.

Layer A is a lawsuit, filed in May, now before the Court of Appeal. It is about one Undang’s removal, and a request for minutes.¹

Layer B is the dispute over Tuanku Muhriz’s own status as Ruler. It is not before any court.

Nothing here touches Layer B.

Nothing here says who should be Ruler, or whether he is.

That question belongs to the throne, and this series will not go near it.

WHAT THE FOUR UNDANG ACTUALLY ASKED FOR

On 17 April, the Dewan Keadilan dan Undang met at Istana Besar Seri Menanti.

By the plaintiffs’ own sworn account, the meeting removed Dato’ Klana Petra, Mubarak bin Thahak, as Undang Sungai Ujong, with immediate effect.²

Two letters then asked for the minutes of that meeting. Both went unanswered.³

So in May, four Undang, the Tunku Besar Tampin and the Dato’ Shahbandar sued the Secretary of the DKU, the DKU itself, and the State Government of Negeri Sembilan.

They did not ask a court to reinstate anyone.

They asked for three things only: a copy of the minutes, an order compelling their production, and a pause on enforcing whatever the meeting decided, until the minutes are seen.⁴

In other words, ‘Show us the record. Then we can argue about what it says.’

A QUESTION BEFORE THE QUESTION

Before any of that can be argued, the defendants raised a different point entirely.

They say the court has no business hearing this case at all.

That objection was filed as an application under Order 14A of the Rules of Court, asking the High Court to decide a pure point of law before the case goes any further.⁵

Order 14A exists for exactly this. Some questions can end a case, or reshape it, before a single witness is called.

It is a fork in the road, decided first, so nobody wastes a trial walking down the wrong path.

Here, the fork carries three questions that matter to the general reader.

Is this really about DKU’s procedure?

The defendants say the plaintiffs are not really asking for a document. They are attacking how the Dewan ran its own meeting.

Is this really about advice?

Article XVI’s function, on this view, is advisory and customary. Courts do not referee adat.

Is this the wrong door?

An order compelling a public body to hand over a document is, in substance, an order of mandamus. Malaysia usually reaches that relief through judicial review under Order 53, not through an ordinary suit under Order 15 rule 16.⁶

A fourth point sits alongside these. The defendants say the minutes do not yet legally exist.

Under Article XXII(2) of the Constitution of Negeri Sembilan, minutes only take legal form once confirmed at the Dewan’s next meeting.⁷

No confirmed minutes, on this argument, means nothing yet to hand over.

That is the whole bundle now before the Court of Appeal on 19 October.

WHERE THE LAW ALREADY STANDS

None of this is being decided on a blank page.

A case from 1981, and an advisory Dewan

In 1981, the Federal Court faced a dispute over the very same Article XVI.⁸

Salleh Abas FJ described the Dewan’s role as ‘advisory’. It was there to advise on Malay custom, not to be second-guessed by a judge on the merits of that advice.

That case is why the defendants feel confident.

HAS THE LAW MOVED ON SINCE 1981?

A reader following this series closely may ask a sharper question. Has the law moved past Othman, in the forty-five years since?

The honest answer has two parts. Neither is a straight yes.

An older case than most people remember

Fifty years before Othman, the Privy Council heard an appeal from a very similar problem, in Lagos.⁹

Eshugbayi Eleko had been the Eleko of Lagos, a traditional ruler, until the colonial government withdrew its recognition of him under native law and custom, and had him detained.

The government’s argument will sound familiar. Recognising a native ruler is a customary, executive act. No court should referee it.

Lord Atkin rejected that. The executive could not detain a man on the strength of a customary recognition decision, he held, without a court being able to test whether the law had actually been followed.

So the idea that a customary or ‘advisory’ decision sits entirely beyond the courts is not, in fact, the old and settled position. Even in 1931, it was not accepted without a fight, and the fight was lost by the government.

A modern African comparator

Ninety years later, South Africa’s Constitutional Court faced a dispute over who was the rightful king of the Bapedi people.¹⁰

The Court did not crown anyone itself. It reviewed the legality of the process a specialist Commission had followed to decide the question, under ordinary administrative-law grounds — had relevant facts been considered, was the outcome rational.

Kingship itself stayed a matter for custom. The path taken to decide it did not.

What happens when the ordinary check is missing

The clearest recent illustration of ‘impasse’ forcing a court’s hand comes from London, not from any customary court at all.

In 2019, a Prime Minister advised the suspension of Parliament for five weeks, at the height of a Brexit deadlock.¹¹

Advising the Crown to prorogue Parliament had always been treated as exactly the kind of ‘prerogative act’ courts leave alone.

The UK Supreme Court, unanimously, said not this time. A prorogation that frustrates Parliament’s constitutional function, without reasonable justification, is unlawful — whatever the source of the power used to bring it about.

The Court’s own reasoning is worth stating plainly, because it names the exact hinge this essay has been circling. Government answers to Parliament for policy, and to courts for the legality of what it does. Take away the first check, at a moment when it is needed most, and the second one does not disappear with it.

One judge, two moments, decades apart

Lord Atkin, who wrote Eshugbayi Eleko in 1931, sat again on a very different case a decade later — and this time he stood alone.¹²

Britain was at war. A minister had detained a man on suspicion, under a wartime regulation, and the majority of the House of Lords declined to look behind his reasons at all.

Atkin dissented, sharply, saying he knew of only one authority to justify the majority’s approach: a phrase attributed to a character in Alice in Wonderland. Words, he said, meant what a court said they meant, not whatever the executive wished.

His colleagues thought him intemperate at the time. Later generations of judges, in England and in Malaysia both, came to treat his dissent as the one that was actually right all along.¹³

The same judge, at two very different moments, distrusted the same thing: an executive decision that asked a court to simply take its word.

The line that keeps holding

Run all four cases together, across a century and four countries, and one distinction survives every one of them.

Courts stay out of the merits of a customary, political or prerogative decision — who should be Undang, who should be king, whether Parliament needed a longer recess.

Courts do not stay out of its legality — whether the decision-maker had the power it claimed, followed its own procedure, and did not put itself beyond every check at once.

Othman is not overruled by any of this. Its holding, that the Dewan’s advisory function is not to be second-guessed on its merits, stands exactly where it stood in 1981.

What has hardened since 1981, across every jurisdiction above, is the second half of that sentence — the part that says a court still may, and increasingly will, ask whether the process itself was lawful, especially where a body’s own claim to total immunity would otherwise leave no check running at all.

The Federal Court’s own more recent cases confirm the same distinction on home ground.¹⁴ So does the line of authority Malaysian courts drew from a wartime English tribunal whose ‘final’ decision was struck down anyway.¹⁵

THE ARGUMENT EACH SIDE WILL MAKE

Put both sides fairly, because that is the discipline this series holds to.

None of the comparative material above decides Negeri Sembilan’s case. It only sharpens the question both sides are actually arguing.

The DKU’s answer still writes itself from Othman. Removing an Undang is adat, on the merits, and courts stay out of adat’s merits. The document request is premature besides, since Article XXII(2) says no confirmed minutes yet exist to hand over.

The Undang’s answer takes the comparative cases as its cue. They are not asking anyone to rule on custom’s merits. They want the legality of a process tested, and paused, until they can see the record it produced.

Checking whether a meeting followed its own rules, they would say, is exactly the legality question every one of the cases above left open for a court to ask.

Which side is right is exactly what 19 October will test.

This essay does not say.

WHAT THE HEARING ACTUALLY SETTLES

Nobody walks out of the Court of Appeal on 19 October with a ruling on Sungai Ujong’s Undang.

Nobody walks out with a ruling on Tuanku Muhriz’s status either. That question, again, sits elsewhere.

What the Court decides is narrower, and in its own way larger.

It decides whether a Negeri Sembilan court may open this file at all.

Everything else in Layer A waits behind that single door.

∞§∞

This is for general information only, not legal or technical advice. Obtain independent legal advice where needed.

Thanks to KN Geetha, TP Vaani, JN Lheela and Lydia Jaynthi of GK Legal, and Getty Images of Unsplash for the image.

Claude assisted with drafting; Perplexity Pro fact-checked. The views and any errors are the author’s.

Negeri Sembilan: Can a court even look? What the Court of Appeal decides on 19 October [20/NS]

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