PUTRAJAYA (Jan 5): The Federal Court has dismissed two appeals challenging the Election Commission’s (EC) decision to hold the 15th general election (GE15) last November.
In a unanimous decision, the three-judge bench of the apex court led by Datuk Nallini Pathmanathan, and flanked by Datuk Vernon Ong Lam Kiat and Datuk Mary Lim Thiam Suan, said the dissolution of Parliament last year led to the GE15 and a new government, which in turn led to the convening of the 15th Parliament.
“It is not in dispute that the GE15 was correct, valid and legal,” Nallini said in her judgement, before dismissing the appeal leave applications by both parties.
She also further drove home the point by saying that the current state of the new government with the convening of Parliament cannot exist without former prime minister Datuk Seri Ismail Sabri Yaakob's request to seek the dissolution of Parliament.
“The current and accepted state cannot exist without that initial request for the dissolution [of Parliament]. It is not possible to divorce the result from the events that commenced with and ensued from the request of the dissolution, because the two are indivisible. You cannot sever one from the other,” she said.
The two appeals in question were made by Pandan voter Dr Syed Iskandar Syed Jaafar and former Klang Member of Parliament Charles Santiago.
Charles was seeking to overturn a High Court decision and Court of Appeal decision to quash his suit, following questions surrounding the dissolution of Parliament, while Syed Iskandar was appealing against a High Court and Court of Appeal decision, which quashed his originating summons seeking a judicial review against the dissolution of Parliament.
Syed Iskandar was questioning the validity of Ismail Sabri’s request to seek the dissolution of Parliament. He named the Prime Minister's Department, the Government and the EC as respondents.
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 appeals.
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.
Nallini further added that the questions of law brought to the apex court were merely academic.
“For these reasons, we are constrained to exercise our discretion to uphold the respondent’s’ preliminary objection and dismiss the application in both cases,” she said.
Before Nallini read out her decision, federal counsel for the Attorney General's Chambers Low Wen Zhen submitted that the notice of motion was misconceived and ought to be dismissed because the questions were academic and held no practical utility, and that the proposed questions had no prospect of success.
“The fact that the GE15 has been held, a new government has been formed, and that a new PM has been appointed, who has the confidence of the majority in the House of Representatives, are 'so sufficiently notorious that it becomes proper to assume its existence without proof' as judicial notice taken by the court,” she said.
She said that leave to appeal should not be given for “abstract, academic or hypothetical questions of law, particularly when it will not affect the result of the appeal one way or another”.
"The general rule is the court does not determine academic or hypothetical questions, where the answer would not affect the rights of obligations of the parties. A question is academic if it is a matter of complete indifference to the parties, who will be in exactly the same position regardless of which way the question is answered,” she added.