KUALA LUMPUR (Oct 20): Since the Election Commission (EC) has announced that polling for the 15th general election (GE15) will be held on Nov 19, the suit brought by incumbent Klang Member of Parliament Charles Santiago to stop the election is merely academic, said former Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinuddin.
Zulkefli was representing caretaker Prime Minister Datuk Seri Ismail Sabri Yaakob as a defendant in the suit.
At around noon on Thursday (Oct 20), EC chairman Tan Sri Abdul Ghani Salleh announced the date of the election in the commission's headquarters in Putrajaya.
During the hearing, Zulkefli, who was submitting before judge Datuk Ahmad Kamal Md Shahid, said that the King had the prerogative to dissolve Parliament under Article 40(2)(b) and Article 55(2) of the Constitution, and as such, the Ruler had the discretion of dissolving the legislature without obtaining the advice of the Cabinet — and that this contention by Charles is also academic.
“The issue of the [PM's] request for the dissolution of Parliament without the Cabinet's [advice] is academic, in view that the Yang Di-Pertuan Agong had consented to the request,” Zulkefli said.
He said that the powers of the Agong are clear and outlined in Article 42(b) of the Federal Constitution.
“The Reid Commission said that the powers to dissolve Parliament are solely at [the Yang di-Pertuan Agong's] discretion under Article 42(b),” he said.
To emphasise the Yang di-Pertuan Agong's powers under Article 42(b), Zulkefli cited the incident in 2020, when His Majesty denied the then PM's request to declare a state of emergency in Malaysia.
“In that light, I want to show an even application of the powers of the King. [His Majesty] may not act on the advice of the PM. If I may submit that you can take judicial notice of this reasoning, even [when it comes to] the powers of emergency, the King may not act on the advice of the PM, what more on Article 42(b) which clearly states he can exercise his powers? We have a provision in the Constitution, which confers the powers to the King [to decide],” he said.
He stressed that the declaration of the dissolution of Parliament was within the powers of the King, as enshrined in the Constitution, and the Judiciary must preserve the constitutional principles.
Earlier, Zulkefli argued that there is no reasonable cause of action against his clients on the ground that the proclamation and dissolution of Parliament are non-justiciable subjects, and cannot be disputed in the court.
"There are certain matters which are inherently unsuited to be litigated, of which include the issue of the dissolution of Parliament. Even though there are other issues raised by [Santiago], the crux of the matter remains a non-justiciable subject," he said.
Zulkefli added that the Yang di-Pertuan Agong's powers to dissolve Parliament also lie solely with His Majesty, as per Article 55(2) of the Federal Constitution.
He also said that the EC's constitutional duty to conduct the GE15 within 60 days is also a matter that is non-justiciable.
He argued that Santiago's claim is frivolous and an abuse of court process, and hence should be struck out with cost.
Zulkefli was appearing with Datuk Mohd Hafarizam Harun.
Charles’ lawyers Datuk Malik Imtiaz Sarwar and Surendra Ananth will give their oral submissions in the afternoon. The court went into recess after Zulkefli finished his oral submissions.
For more GE15 stories, click here.
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