PUTRAJAYA (Nov 15): The Court of Appeal (COA) has quashed two appeals to stop the Election Commission (EC) from holding the 15th general election (GE15) this Saturday (Nov 19).
In a unanimous decision from the court, the three-judge bench — led by Datuk Hajjah Azizah Haji Nawawi and flanked by Datuk Che Mohd Ruzima Ghazali and Datuk See Mee Chun — said the High Court judge did not make any errors in his judgement when he concluded that the issue is non-justiciable.
Hajjah Azizah said that the EC cannot be restrained or prohibited from conducting its constitutional duties under the Federal Constitution.
“The consequential orders sought by the appellants, that is to restrain or to prohibit the EC from taking steps to conduct the GE15, are clearly not tenable in law, as the EC has a constitutional duty to conduct the election under Article 113 of the Federal Constitution, within 60 days of the dissolution of Parliament as provided by Article 55(4) of the Federal Constitution.
“The EC cannot be restrained nor prohibited from performing its constitutional duties for the aforesaid reasons. We find no merit in all the appeals, and all the appeals are dismissed,” she said in her judgement.
The two appeals in question were from Pandan voter Dr Syed Iskandar Syed Jaafar and incumbent Klang Member of Parliament Charles Santiago.
Charles was seeking to overturn a High Court decision to quash his suit, following questions surrounding the dissolution of Parliament, while Syed Iskandar was 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 Ismail Sabri Yaakob's request to seek the dissolution of Parliament. He named the Prime Minister's Department, the Government and the EC as respondents.
The hearing of the appeals was held on Monday. Former Federal Court judge Datuk Sri Gopal Sri Ram and R Kengadharan represented Syed Iskandar, while Datuk Malik Imtiaz Sarwar and Surendra Ananth represented Charles in the second appeal.
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 in Syed Iskandar’s suit.
In Charles’ appeal, former Court of Appeal president Tan Sri Zulkefli Ahmad Makinudin was acting for the Government and Ismail Sabri.
In her judgement, Hajjah Azizah said that the High Court judge was not wrong in striking out both suits, because the power of the Yang di-Pertuan Agong (YDPA) to dissolve Parliament is non-justiciable.
“The High Court judge was not wrong to strike out the originating summons (Charles’ application) and the judicial review, on the ground that the decision to dissolve Parliament under Section 55 (2) of the Federal Constitution is non-justiciable,” she said.
Last month, High Court Judge Datuk Ahmad Kamal Md Shahid dismissed the leave application for a judicial review and Charles’ originating summons.
In delivering the decision, he said: “The discretion of the YDPA in deciding to dissolve the assembly (Parliament) is non-justiciable in any proceedings. The Judiciary also cannot enter into the realm of the Executive or Legislature.”
It was the contention of Charles’ lawyers that Ismail Sabri should have consulted the Cabinet before advising the YDPA to dissolve Parliament. However, Ahmad Kamal disagreed with that notion.
The High Court judge cited Professor Emeritus Datuk Dr Shad Saleem Faruqi’s book as saying that the PM can decide for himself on issues pertaining to the Budget, foreign policy and the dissolution of Parliament, without the need of support of the Cabinet.
“The prime minister holds the ultimate power, and does not need to consult his Cabinet for the dissolution of Parliament. That lies solely in the hands of the prime minister,” he said.
Hajjah Azizah, in reading out her decision on Tuesday, said the crux of the appeals was that the appellants were challenging the decision of the YDPA to dissolve Parliament.
“Both appeals are in faith and substance challenging the decision of the YDPA to dissolve Parliament under the Constitution,” she said.
After reading the COA’s decision, she dismissed the appeals with no order as to costs.
The appellants can appeal against the decision in the Federal Court.
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