KUALA LUMPUR (Nov 14): The Court of Appeal (COA) will on Tuesday (Nov 15) make a decision on two appeals to stop the Election Commission (EC) from holding the 15th general election (GE15) on Nov 19 — one from Pandan voter Dr Syed Iskandar Syed Jaafar and the other from incumbent Klang Member of Parliament Charles Santiago.
Charles is seeking to overturn a High Court decision to quash his suit, following questions surrounding the dissolution of Parliament, while Syed Iskandar is appealing against a High Court decision, which quashed his originating summons seeking a judicial review against the dissolution of Parliament.
Syed Iskandar was questioning the validity of caretaker Prime Minister Datuk Seri Datuk Ismail Sabri's request to seek the dissolution of Parliament. He named the Prime Minister's Department, the Government and the EC as respondents.
The hearings of both appeals were held via Zoom on Monday, before a three-judge bench led by Datuk Hajjah Azizah Haji Nawawi and flanked by Datuk Che Mohd Ruzima Ghazali and Datuk See Mee Chun.
Former Federal Court judge Datuk Sri Gopal Sri Ram represented Syed Iskandar in the first appeal hearing before the bench via Zoom. Meanwhile, lawyer Datuk Malik Imtiaz Sarwar represented Charles in the second appeal.
Sri Ram argued before the bench that the High Court judge had erred in his decision to quash the suit.
Sri Ram said judge Datuk Ahmad Kamal Md Shahid, who dismissed a leave application for a judicial review by Syed Iskandar, was wrong because the exercise of power by the PM to approach the Yang di-Pertuan Agong to dissolve Parliament was a constitutional power, and should not be immune from a judicial review.
“It cannot be immunised from a judicial review,” he said.
Senior federal counsel Shamsul Bolhassan appeared for the Attorney General's Chambers for the Prime Minister’s Department, the EC and the Government, which were the respondents.
Shamsul argued that Syed Iskandar’s claim that he would be unable to vote due to the dissolution of Parliament is unfounded, and thus the appeal should be quashed.
In Charles’ suit, former COA president Tan Sri Zulkefli Ahmad Makinudin was acting for the Government and Ismail Sabri.
Lawyer Malik contended that Ahmad Kamal had erred in his judgement, which said that the PM's power to request for the dissolution of Parliament was a non-justiciable subject matter.
He also said that Ismail Sabri should not have advised the Agong to dissolve Parliament without first consulting the Cabinet.
However, the High Court judge said Ismail Sabri did not need to consult the Cabinet.
Malik told the COA bench that it is not stated in the Federal Constitution under Section 55(2) that the PM can independently advise the Agong to dissolve Parliament.
He also said Ismail Sabri dissolved Parliament without first consulting the Cabinet because it was a “loss of confidence” scenario.
Meanwhile, Zulkefli argued that the High Court was right and did not err in stating that Ismail Sabri, "being the head of the executive, his request to dissolve Parliament did not need the consultation of the Cabinet members. The decision to dissolve Parliament was entirely his".
"I am in agreement with this view. The PM, as the head of the executive, did not need the consultation of the Cabinet in making a request to the Agong to dissolve Parliament. He was entitled to make his own decision as it was his absolute power as the premier," the judgement from Ahmad Kamal read.
Zulkefli, together with his team, also contended that anything to do with the dissolution of Parliament cannot be examined by the courts.
The decision on the appeals will be made via Zoom on Tuesday.
Get our comprehensive GE15 coverage here.