KUALA LUMPUR (Oct 20): Despite the Election Commission (EC) having announced that polling for the 15th general election (GE15) will be held on Nov 19, a lawyer of Charles Santiago, the incumbent Klang Member of Parliament, argued that the suit to stop the general election is not academic as it has yet to take place.
The suit was brought by Santiago against Caretaker Prime Minister Datuk Seri Ismail Sabri Yaakob, the Malaysian Government and the EC before judge Datuk Ahmad Kamal Md Shahid.
Santiago’s lawyer Datuk Malik Imtiaz Sarwar contended that the matter was not academic as the elections have yet to take place.
"We say that it is not academic. The conduct of the elections has not occurred. If the elections have already occurred, then they can say it is academic," he told the High Court here on Thursday (Oct 20).
Malik Imtiaz said this to Ahmad Kamal in the middle of a hearing of an application filed by Ismail Sabri to strike out Santiago's lawsuit.
He added that their case does not rest on the discretion of the Yang di-Pertuan Agong whether to dissolve Parliament. Rather, their case rests on the validity of Ismail Sabri's advice to the King.
He argued that the caretaker prime minister had to consult his Cabinet ministers and that it was clear from the press that Ismail Sabri had not done so before advising the King.
Malik Imtiaz said the Agong shall act in accordance with the advice of the Cabinet to dissolve Parliament, and based on information gathered, it was clear that the Cabinet did not accede to the request, and several of them had even written to the King to express their disagreement.
Hence, Ismail Sabri’s move allegedly violated Article 55(2) of the Federal Constitution, read together with Article 40(1) and (1A), as his request did not seem to be an advice within the meaning of the law based on Article 40(1) and (1A).
Hence, the dissolution of Parliament should have no effect, as it was done on a request to be considered invalid, and that any action by the EC to conduct the GE15 would be against the law.
"The request for the [caretaker prime minister] to dissolve was not made with advice from Cabinet and therefore is null and void.
"We are not asking whether or not the advice [to dissolve Parliament given to the Agong] was good or bad. We are saying he has no power to give advice," said Malik Imtiaz.
On Oct 10, Ismail Sabri announced the dissolution of Parliament, after getting the consent of Yang di-Pertuan Agong Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah.
The time between Ismail Sabri’s "secret" meeting with the Agong and the dissolution of Parliament was too short for any objections.
Earlier, while replying to Malik Imtiaz's submissions, Datuk Mohd Hafarizam Harun, who also represented the defendants in Santiago's lawsuit, echoed Tan Sri Zulkefli Ahmad Makinuddin's earlier submission that the matter was academic on four grounds.
They include the fact the King has already consented to the dissolution of Parliament and that the gazette has already been published.
"The process of elections has already commenced, [the] writ would be issued and the nomination would follow," Mohd Hafarizam said.
However, Malik Imtiaz questioned the defendants' stance that once it is gazetted, the matter was done and cannot be questioned.
He also argued that this suit was brought to the courts because there was not adequate time given from the time Ismail Sabri met the King and the announcement to dissolve Parliament the next day.
He argued that there was only a time span of nine to 10 hours, which was not enough time to take any action.
"[On Oct 9,] the [caretaker] prime minister sees [the King and] no one knew [of the meeting.] At least the public didn't know.
"On Oct 10, the [caretaker] prime minister announces that the palace has made a decision to dissolve and simultaneously issues the gazette. At which point within the period of 10 hours or whatever and were we supposed to say, 'Hang on a minute, this can't be right?'" Malik Imtiaz asked.
He lamented that was most likely not the spirit of the law and it is where the courts could provide some input on the matter.
"Surely that cannot be the way the law works. If that is the foundation, then My Lord should give consideration if this kind of decision making should be rendered immune from judicial scrutiny because that is the upshot of what [the defendants] are saying.
"When asked when is dissolution, all we get is coyness. That is what the newspapers are saying. Then on [Oct 10] the Parliament is dissolved.
"Then my learned friend is saying too bad, you are too late. At which point were we supposed to do this? How can it be academic?" he asked.
After hearing arguments from both sides, Ahmad Kamal said that he would deliver his decision on Oct 28 as there are many points to ponder from the lawyers’ arguments.
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