KUALA LUMPUR: The Tengku Temenggong of Kelantan Tengku Muhammad Fakhry Petra is challenging the decision of his eldest brother, the Regent of Kelantan, in removing his membership in the Kelantan Council of Succession on Sept 16.
The Council is responsible for confirming the succession to the Throne and Sovereignty of Kelantan and for determining whether there is a vacancy in the throne by reason of the prolonged absence from the state of the reigning Sovereign.
Tengku Muhammad Fakhry, 31, is the third son of the Sultan of Kelantan and another heir to the throne and sovereignty of Kelantan.
He was duly appointed to the Council by his father the Sultan on or about 2001.
on Wednesday, his lead counsel K. Shanmuga submitted that the Regent’s action amounted to a usurpation of the Sultan’s powers in the circumstances of the case.
“With a proper interpretation of the Kelantan State Constitution, it is only the Sultan of Kelantan who can alter the composition of the Council.
“The Regent holds office only for so long as the Sultan is incapacitated,” he submitted in asking the High Court to grant leave for a judicial review application.
In a statement filed for the judicial review application, he stated that Sultan has been critically ill since May and as such the Regent was appointed effective May 25. The Sultan has been in hospital in Singapore since May but now appears to be recovering from his illness.
Shanmuga further said that “the Regent is the first in line to succeed to the Throne of Kelantan but his succession is not automatic — His Royal Highness must first be confirmed as the reigning Sovereign by the Council.
“If he is not confirmed, his younger brother, the Tengku Bendahara as the second heir, is entitled to be confirmed by the Council.
“If that is not done, the applicant, Tengku Temenggong as an other heir is next in line to succeed,” he argued.
The prince had named the Regent Tengku Muhammad Faris Petra, 35, the Kelantan government, the Council’s secretary and five others as respondents in the application filed on Dec 1.
The five were appointed as Council members by the Regent on May 24.
In his statement, the prince claimed that the Regent was appointed by the Council pursuant to Article 22A of the Kelantan Constitution during the time Kelantan Sultan is incapacitated from attending to the state affairs.
In his statement, the prince said he had written a letter dated Oct 25 to the Council secretary asking for the grounds for the revocation of the appointment. He stated that the secretary in a letter dated Oct 26 merely replied that the revocation was by order of the Regent.
Among others, the prince is asking the court to remove the decision by Regent or alternatively to declare that the revocation is inconsistent with Kelantan Constitution.
Shanmuga argued that allowing the Regent to alter the composition of the Council effectively allows the Regent to create a tribunal that is to be his “judge”, as it were, in determing his fitness to succeed to the throne.
He contended that the decision of the Regent is justiciable and that the prince has an arguable case that the Regent was not empowered to make the impugned decision.
Shanmuga submitted that there was an important distinction involved where the Regent is appointed by the Sultan or by the Council, a lesser authority.
He said it is of utmost importance for this court to ensure that constitutional mechanisms designed to protect the dignity of the succession operate in accordance with the law.
In objecting the leave application, Senior Federal Council Datin Azizah Nawawi, who acted for the respondents, argued that the Regent has absolute discretion to revoke the appointment of any Council member.
She submitted that the decision could not be questioned by an ordinary court of law as it was it was a royal prerogative and non-justiciable.
Judge Justice Mohamad Ariff Md Yusof will deliver his decision on the leave application on Dec 31.