KUALA LUMPUR (March 18): Datuk Seri Anwar Ibrahim remains as the Tambun member of Parliament and prime minister, after a court tossed out a suit challenging his election and appointment.

Judge Alice Loke Yee Ching, in striking out the suit filed by former Hindraf chairperson P Waytha Moorthy, ruled on Wednesday that the High Court does not have jurisdiction to hear the matter as the challenge should be filed via an election petition and heard by the election court.

The originating summons is “obviously unsustainable due to this”, Loke said. “In view of my findings, the court considers the application as an abuse of the court process, frivolous and vexatious.”

Waytha Moorthy filed the suit last year seeking to challenge Anwar’s election as the Tambun MP and his appointment as the prime minister, while creating doubt over his 2018 royal pardon.

Loke cited provisions under Article 118 of the Federal Constitution, which stipulates that “no election to the House of Representatives or to the Legislative Assembly of the State shall be called in question except by an election petition presented to the High Court having jurisdiction where the election was held".

The judge said it was not disputed that Anwar was a candidate in the Tambun constituency for the 15th general election (GE15) and that his nomination was accepted by the returning officer.

The defendant (Anwar) won the Tambun constituency on Nov 20, 2022, and the results were gazetted on Dec 14, and he was appointed as the 10th prime minister of Malaysia, Loke added.

She said Waytha Moorthy’s suit was premised solely on the defendant having been previously convicted and imprisoned for a period of more than one year, and hence was disqualified from being an MP under Article 48 with regard to the disqualification of an elected person.

Although Anwar was pardoned on May 16, 2018, Waytha Moorthy contended that the pardon did not remove his disqualification.

The judge added that Anwar had filed an application to strike out Waytha Moorthy’s suit under Order 18 Rule 19 of the Rules of Court 2012, where four grounds were stipulated.

“Anwar’s lawyer contended that Waytha Moorthy’s challenge was to obtain political mileage, preserve political relevance, and to harass the defendant (Anwar). The plaintiff’s suit, the defendant argued, discloses no reasonable course of action, is scandalous, frivolous, and vexatious, and an abuse of the process of the court,” Loke added.

Citing Section 33 of the Election Offences Act, Loke said that the law makes provision for an election petition to be tried by an election judge, where a judge of a High Court shall be nominated by the chief judge to hear the election petition.

“The question whether the defendant was, at the time of his election, disqualified for election, is a matter for challenge by way of an election petition. The issue falls squarely within the ambit of the provisions of the Election Offences Act, which provides as follows where any election shall be declared to be void on an election petition.

“This court has no jurisdiction to entertain such a suit. A challenge to an election can only be made by way of an election petition. The provisions of Article 118 of the Federal Constitution cannot be any clearer,” she said in allowing the striking out.

Anwar, who was represented by counsel Ranjit Singh of Messrs Ranjit Singh & Yeoh, along with Daniel Albert and Nicholas Yap, applied for costs on an indemnity basis of RM125,000 following he had given notice on this, and despite this, Waytha Moorthy had continued with the action.

Furthermore, Ranjit said the application was filed with a certificate of urgency on the matter despite the application being filed last year, three years after the GE15 had concluded.

S Karthigesan of Messrs Karthig Shan, who appeared with Waytha Moorthy himself, asked for no order as to costs as his client had raised constitutional issues to be considered by the court with regard to the validity of the pardon, and that the court had decided solely on jurisdiction alone and not on the other issue of pardon.

Loke in the end ordered Waytha Moorthy to pay RM80,000 costs as she had ruled that there are valid grounds for striking out and the court found that the suit was filed as an abuse of the process of the court.

When met outside the court, Waytha Moorthy said he would appeal against Wednesday’s decision and a notice of appeal would be filed soon.

In civil suits, a notice of appeal must be filed within 30 days of the court’s decision.

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