KUALA LUMPUR (March 2): The High Court on Monday (March 2) fixed March 18 to deliver its ruling on Datuk Seri Anwar Ibrahim’s bid to strike out an originating summons filed (OS) by Hindu Rights Action Force (Hindraf) chairman P Waythamoorthy.
Waythamoorthy is challenging Anwar’s appointment as Tambun MP and his subsequent appointment as prime minister.
Judge Alice Loke Yee Ching fixed the date after Anwar’s counsel Ranjit Singh told the court that instead of filing a suit, Waythamoorthy should have filed an election petition and questioned the Hindraf chairman’s locus (legal standing) in filing the OS and seeking the declaration.
Ranjit Singh of Messrs Ranjit Singh & Yeoh, who appeared with Daniel Albert and Nicholas Yap, said in the preliminary objection that Waythamoorthy should have filed an election petition to challenge the legality of Anwar’s bid to contest the Tambun parliament seat, which he did not within 21 days of the results, and, if filed, the petition is heard before an election judge.
“Following that, he is out of time to challenge the outcome as the 15th General Election results have been gazetted and there was no challenge as before. Article 118 of the Federal Constitution stipulates that there is no election as an MP or an assembly person can be questioned except via an election petition filed in court.
“Furthermore, Waythamoorthy does not have the legal standing to initiate the OS following that he (Waythamoorthy) is not a member of the Tambun electorate, he was not an opposition candidate who contested against Anwar and that his nomination was rejected. He does not fulfil the criteria to file the contest via the election petition and for these reasons the OS should be struck out,” he said.
Now, he added, it has been more than three years after the 15th General Election.
Ranjit further described the OS as frivolous, vexatious and an abuse of the court process and, hence, the court should not allow the application.
Describing Waythamoorthy as a “busybody”, he said if the application, if allowed, would result in anyone including those from Sabah and Sarawak being able to file such challenges against any MPs.
Waythamoorthy filed the challenge last August where he effectively seeks to challenge Anwar’s election as Tambun MP and a declaration that his election on Nov 19, 2002, as MP is unconstitutional and void.
Furthermore, he is seeking a declaration that his appointment as prime minister on Nov 24, 2022, is unconstitutional, null and void and an order that in consequence Anwar should cease with immediate effect to be Tambun MP and prime minister.
Ranjit reiterated that a sitting MP can only be removed by an election petition and that Anwar’s position as a candidate for Tambun was not objected to by the returning officer.
He added that, merit-wise, Waythamoorthy does not have a case as Anwar has received a full pardon.
Challenge is validity of pardon
S Karthigesan, of Messrs Karthig Shan, representing Waythamoorthy, said they are challenging via declaratory relief whether Anwar had received a free pardon.
Karthigesan, who appeared with Waythamoorthy, told the court that Article 48(e), regarding the disqualification of an elected representative, stipulates that a person convicted of an offence by a court in the Federation is disqualified if they are sentenced to imprisonment for a term of not less than one year or fined not less than RM2,000 and have not received a free pardon.
He cited the question as whether Anwar had received “a free pardon” in question and, hence, this matter was something this court or the Federal Court can decide.
A free pardon is an unconditional remission over the consequences of an offence or conviction.
The argument on not filing an election petition, Karthigasan said, is not the challenge; they are seeking to unseat Anwar as an MP.
He added that while Anwar received a pardon, the real question is whether he received a full pardon and that is a question of law which has to be determined.
For these reasons, he added the court should dismiss the striking-out application.
Waythamoorthy further added that since this involves the constitution, the court should not determine to strike out the matter but refer it to the Federal Court as it is the intention of the framers so that a challenge on Article 48(e) can be made.
He contrasted his case with other previous challenges to Anwar’s legality as an MP, citing that his challenge is specifically on Article 48(e).