KUALA LUMPUR (May 30): Human rights and law reform non-governmental organisation (NGO) Lawyers for Liberty (LFL) has called on the attorney general (AG) to intervene in Prime Minister Datuk Seri Anwar Ibrahim’s application to have questions of law referred to the apex court — on whether “a sitting PM enjoys a qualified immunity from civil suit”, and whether a civil suit would impair the effective discharge of his executive functions and undermine the constitutional separation of powers.
In a statement, LFL director Zaid Malek described as preposterous the questions posed by Anwar’s new lawyers last week, in their application in the ongoing sexual assault civil suit filed against Anwar by his former aide Mohammad Yusoff Rawther.
“Anwar’s new lawyers seek to declare that a sitting PM has immunity from civil suits — a concept that has no legal basis under the law.
“The provisions cited in the application, which are Articles 39, 40 and 43 of the Federal Constitution, have no relevance or connection to this claim of immunity; these provisions only relate to the executive authority of the federation, and that the Yang di-Pertuan Agong (YDPA) acts on advice and the formation of the Cabinet.
“It does not accord any sitting PM with immunity, and any attempt to include this goes against established principles on interpretation of constitutional provisions. In short, to suggest that in our country, the PM has immunity from court actions by the public, is legal nonsense,” Zaid said.
Zaid said the fact that the alleged acts against Yusoff occurred before Anwar was appointed PM, is of no relevance either.
“If this was a factor, then it would deprive the legal rights of any persons to make a legitimate claim against any current or prospective PM, which is a clear breach of the equality principles espoused in Article 8 of the Federal Constitution, which states that “all persons are equal before the law”.
He added that even the Agong can face civil and criminal cases under Article 183 of the Federal Constitution.
“It would be untenable and unacceptable for the PM to be given an immunity which the YDPA does not possess.
“In these circumstances, it is the legal duty of the AG to intervene in the civil suit, and oppose the attempt to immunise the PM. The AG, as the guardian of public interest, cannot ignore this matter and do nothing,” Zaid said.
Concept of immunity does not exist in a democratic country; Takiyuddin says AG should intervene
Zaid said the fact that Anwar had filed this outlandish application should ring a loud alarm bell to all Malaysians, as it is "a backdoor attempt to introduce a concept of legal immunity to the PM, as the leader of the Executive branch, simply by virtue of his position".
“This is not a concept that exists in any democratic country; it is a blatant violation of the rule of law and a flagrant feature of authoritarianism. The PM has a legal and moral obligation to uphold the Federal Constitution, and as such, he must not make any attempt to renounce or alter the fundamental principles enshrined within it,” Zaid said.
Besides this NGO statement, former de-facto law minister Datuk Takiyuddin Hassan has also urged the AG to intervene in the application by Anwar to refer the eight questions of law to the apex court, with regard to whether he had immunity or otherwise.
Takiyuddin, of Perikatan Nasional, said the AG as the government’s legal adviser entrusted with upholding the Federal Constitution, should intervene in the matter. He suggested that the AG join the proceedings as an intervenor, or as amicus curiae (friend of the court).
Anwar had changed his lawyers on May 23 from Jeffrey Lee, Navpreet Singh and Ranjit Singh, to Messrs Zain, Megat and Murad. Yusoff’s civil suit against Anwar has been scheduled since last year to begin from June 16 to 19, and June 23 to 25 this year.
The court is also scheduled to hear Anwar’s counterclaim against Yusoff. The presiding judge is Roz Mawar Rozain, who replaced judge Dr John Lee Kien How @ Mohamad Johan Lee.
Roz Mawar has fixed next Tuesday (June 3) for whether to allow a stay of the trial and refer the questions to the apex court.
Some of the legal questions posed include:
- Does a sitting prime minister have some legal protection under the Constitution from being sued in a civil case for something that allegedly happened before he took office, if the lawsuit could affect his ability to do his job, or upset the balance of power between the government and the courts?
- Whether the High Court, in allowing a civil suit against a sitting prime minister, where he has raised a credible plea of abuse of process (including allegations of politically motivated reputational sabotage and a manufactured claim), violates the constitutional guarantee of equality before the law under Article 8(1);
- Whether the Federal Constitution, by necessary implication, requires courts to conduct a threshold inquiry prior to trial, into whether a civil suit against a sitting prime minister (based on pre-office conduct) constitutes an abuse of process, or a threat to public interest, and if so, whether such proceedings must be stayed or dismissed to preserve constitutional governance;
- Whether the courts are constitutionally obliged under Article 5(1), read in light of the principle of due process and natural justice, to protect a public officeholder’s liberty and dignity from litigation that may impair the ability to discharge public duties, where no criminal guilt has been established.