PUTRAJAYA, Nov 14 — The Court of Appeal is set to give its verdict involving two appeals on the legal challenge filed by incumbent Klang MP Charles Santiago and a Pandan voter to stop the Election Commission from conducting the 15th General Election (GE15), tomorrow.
Justice Datuk Azizah Nawawi, who chaired a three-member panel, said they need more time to consider their decision in the appeals.
Justice Azizah who sat with Justices Datuk Che Mohd Ruzima Ghazali and Datuk See Mee Chun heard the appeals by Santiago and Syed Iskandar Syed Jaafar separately today in an online proceeding.
Santiago wants the court to reinstate his originating summons which he filed against caretaker Prime Minister Datuk Seri Ismail Sabri, the government of Malaysia and the Election Commission, seeking several court orders including a declaration that Ismail Sabri’s request to the Yang di-Pertuan Agong for the dissolution of Parliament was null and void as it was not made on the Cabinet’s advice.
Syed Iskandar, meanwhile, wants the court to give him leave (permission) to commence a judicial review application to challenge the dissolution of Parliament and the decision to hold the general election.
Santiago’s suit was struck out by the High Court on October 28, after it allowed the government’s application to do so. The same High Court, on the same day, also rejected Syed Iskandar’s application to get leave to commence a judicial review.
In today’s proceedings, Santiago’s lawyer’s Datuk Malik Imtiaz Sarwar told the Court of Appeal that Ismail Sabri’s request on October 9, this year, to the Yang-di Pertuan Agong to dissolve Parliament was not validly made.
He said this was because there was no advice from the Cabinet, adding that the Prime Minister does not have the power to independently advise the Yang di-Pertuan Agong to dissolve Parliament.
“The advice of cabinet is a constitutional prerequisite to the exercise of power to dissolve Parliament under Article 55 (2) of the Federal Constitution. With the absence of such advice, the Yang di-Pertuan Agong has no power to dissolve,” he said.
Lawyer Tan Sri Zulkefli Ahmad Makinudin representing Ismail Sabri, the government of Malaysia and the Election Commission, said a Prime Minister is entitled on his own accord to advise the Yang di-Pertuan Agong to dissolve Parliament under any circumstances.
Another lawyer, Datuk Wira Mohd Hafarizam Harun representing Ismail Sabri, the government of Malaysia and the Election Commission argued that the matter before the court is academic as the Yang di-Pertuan Agong has already decided to dissolve Parliament and his decision was non-justiciable.
Meanwhile, in Syed Iskandar’s appeal, his counsel Datuk Seri Gopal Sri Ram told the court that his client is challenging the executive’s action in approaching the Yang di-Pertuan Agong to make the request for dissolution of Parliament.
He said the exercise of power by the Prime Minister to approach and make a request to the Yang-di-Pertuan Agong is a constitutional approach and is not immune from judicial review.
Senior federal counsel Shamsul Bolhassan representing the Election Commission chairman, Ismail Sabri and the government contended that Syed Iskandar did not have the locus standi (legal standing) to file leave to commence judicial review as he did not state how he was affected by the election.
He said Syed Iskandar is trying to reverse the decision to dissolve Parliament as well as to stop the GE15 from proceeding, adding that the High Court was right to reject his (Syed Iskandar’s) application for leave and to accept the Attorney-General’s objection to the leave application.