PUTRAJAYA (Nov 16): Pandan voter Syed Iskandar Syed Jaafar is appealing to the Federal Court after failing in the Court of Appeal to obtain leave to challenge the prime minister's advice to the Yang di-Pertuan Agong to dissolve Parliament, which has paved the way for the 15th general election (GE15).
Incumbent Klang Member of Parliament Charles Santiago has also filed a motion to seek leave to appeal in a similar matter.
The appeals to the apex court were filed on Wednesday (Nov 16) by Messrs R Kenghadharan for Syed Iskandar, and Messrs Surendra Ananth for Charles.
Syed Iskandar and Charles have both filed a certificate of urgency for their applications to be heard immediately, considering that the GE15 is scheduled to be held this Saturday (Nov 19), and any hearing after that will render the motions academic.
Both applicants named caretaker Prime Minister Datuk Seri Ismail Sabri Yaakob, the Election Commission (EC) and the Government as respondents.
In his application, Syed Iskandar posed two questions of law for consideration by the Federal Court, namely:
- Whether the effect of Article 40(2)(b) of the Federal Constitution, read together with Article 55, is to render non-justiciable the request for the dissolution of Parliament made by Ismail Sabri to the Yang di-Pertuan Agong, having regard to the decision made by the Privy Council in Teh Cheng Poh vs PP (1979), and the UK Supreme Court in R (Miller) vs PM (2020)?
- Whether based on a true construction of Order 53 of the Rules of Court 2012, an application to seek leave for a judicial review may be resisted by the attorney general on an objection without delivering an affidavit deposing to the facts in issue having regard to the decision of the Court of Appeal in Teh Guat Hong vs Perbadanan Tabung Pendidikan Tinggi Nasional (2015), and Datuk Seri Najib Razak vs Attorney General (2020) 2 CLJ 23?
Charles, meanwhile, posed three questions for the apex court to consider in his application, namely:
- Whether the power vested in the Agong in Article 55(2) to dissolve Parliament is only engaged when he is advised pursuant to Article 40(1) and (1A)?
- If the answer is yes, where the Agong dissolves Parliament without the advice of the Cabinet at the sole request of the prime minister, is the request a nullity and therefore justiciable?
- If the answer is yes, would all steps taken in furtherance of such a void request, including the dissolution of Parliament and any steps to conduct the general election, consequentially be void?
Senior federal counsel Shamsul Bolhassan when contacted confirmed receiving Syed Iskandar's application.
For Charles' application, the respondents were represented by Messrs Hafarizam Wan & Aisha Mubarak.
On Tuesday, a three-member Court of Appeal bench led by judge Datuk Azizah Nawawi dismissed the applications by Syed Iskandar and Charles to challenge Ismail Sabri’s advice to the Agong on Oct 9 to seek the dissolution of Parliament.
“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," said Azizah.
“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 added in her judgement.
Azizah sat with Court of Appeal judges Datuk Che Mohd Ruzima Ghazali and Datuk See Mee Chun in dismissing the appeals.
For civil cases in the apex court, leave has to be obtained before the full merits of an appeal can be heard.
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