The courts have no jurisdiction to hear a legal action over the Yang di-Pertuan Agong’s (YDPA) constitutional power to dissolve Parliament, according to caretaker premier Ismail Sabri Yaakob.
Ismail Sabri, as well as the government and the Election Commission (EC), cited this in their application to strike out incumbent Klang MP Charles Santiago’s legal challenge against the 15th general election (GE15) from being held this year.
Earlier just after midday today, Ismail Sabri Yaakob and the two others filed their memorandum of appearance in the DAP lawmaker’s civil action.
A few hours later this afternoon, the trio through law firm Hafarizam Wan & Aisha Mubarak filed the striking-out bid at the Kuala Lumpur High Court.
According to the cause papers, the three defendants contended that the Agong’s power to dissolve Parliament is a matter that is non-justiciable (could be brought to court).
“The power to dissolve Parliament is the prerogative power of the YDPA under Articles 40(2)(b) and 55(2) of the PP (Federal Constitution), whereby the YDPA has the discretion to dissolve Parliament without the need to seek the advice of the cabinet under Article 44(1) and 40(1A) of the PP.
“The issue of the validity of the first defendant’s (Ismail Sabri) request for the dissolution of Parliament from YDPA on Oct 9, 2022, is academic because the YDPA has assented to the request under Article 40(2)(b) and 55(2) of the PP and proceeded to dissolve Parliament,” the defendants contended.
They claimed that the judiciary as the “guardian of justice” need to uphold the constitutional power of the Agong to dissolve Parliament.
They further contended that the courts are constitutionally precluded from hearing a legal challenge regarding the EC’s duty under Article 55(4) read together with 113(1) of the Federal Constitution to hold elections within 60 days from the dissolution of Parliament.
The trio also claimed that any court challenge regarding the conduct of elections can only be done via an election petition under Article 118 of the Federal Constitution.
The three defendants also seek a court order to stay Charles’ legal action pending disposal of their bid to nullify the lawmaker’s suit.
In the civil action, Charles is seeking a declaration that Ismail Sabri’s request to the Yang di-Pertuan Agong to dissolve Parliament was in contravention of Articles 40 (1) and (1A) of the Federal Constitution.
According to him, the request (to dissolve Parliament) was not made on the advice of the cabinet and is, therefore, null and void.
Charles sought a declaration that the dissolution of Parliament was not in accordance with Article 55(2) and Article 40(1) and (1A) of the Federal Constitution and called for an order to stop EC from taking any steps to conduct the election.
In his affidavit, he cited the rainy season and the ensuing flood risk as a reason to stop the election.
Charles further noted the Meteorological Department’s warning of flooding risks during the monsoon season in November and December.
He stressed that many political parties, except Umno, were against holding the election this year, due to the flood risk.
With Umno MPs numbering only 37 out of the 222-strong Dewan Rakyat, the support for Parliament’s dissolution only accounts for about 17 percent of the MPs, he added.
As such, Charles questioned the validity of Ismail Sabri’s request to dissolve Parliament.
In a statement following the filing of the legal action, Charles said he had to resort to it since his repeated letters to the EC over flood mitigation plans have gone unheeded.
The originating summons is fixed for hearing on Oct 20. However, following the filing of the striking-out bid, it is now uncertain whether this would still proceed.
Charles is represented by counsel Surendra Ananth. - Mkini
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