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1.0 INTRODUCTION
Charles Anthony R Santiago v Dato Sri Ismail Sabri (sued in capacity the Prime Minister at relevant time), Government of Malaysia and the Election Commission (2022) is a suit where the dissolution of the Parliament by the proclamation P.U. (A) 320 of Yang di-Pertuan Agong (YDPA) on 10th October 2022 was challenged by Charles Anthony, a Member of the Parliament that was dissolved.
The unreported suit WA-24-61-10/2022 was decided on the 1st November 2022 by the Kuala Lumpur High Court Judge Yang Arif Ahmad Kamal bin Md Shahid.
The plaintiff’s suit invoked provisions of Articles 5, 8, 10, 39, 40, 55 and 119 of the Constitution of Malaysia in an application for declaratory reliefs under Section 41 of the Specific Relief Act. It is noted that Articles 5, 8, 10 and 39 though cited were not expanded upon.
The last election was held in 2018 and the timing of the next election could have been delayed up to 23rd September 2023. Since the last election in 2018, Malaysia has had three Prime Ministers with the first defendant being the shortest serving Prime Minister (PM). The speculations as to the decision, desirability, reasons, and Cabinet support (in a unity government) on the timing of the call for the general election were vented in the media and news. Before the court the arguments were a pristine legal one. The court in the judgment in a nutshell reiterated the absolute discretionary exercise of powers of PM and YDPA respectively in the dissolution of Parliament.
The prayers of declaratory reliefs questioned the validity of the PM’s actions in seeking a dissolution arguing that the PM did not comply with the provision of Articles 40(1) and 40(1)(A) of the Federal Constitution (FC). The premise of the argument is that the PM is bound to consult his Cabinet for the dissolution of the Parliament (para 13 and 35). There is no express provision requiring the PM to do so. The plaintiff did not evidence how this contention is to be supported.
The prayers read for:
“2.1 A declaration that the power vested in the YDPA by Article 55(2) of the FC can only be exercised in accordance with Article 40(1) and 40(1)(A) of the FC
2.2 A declaration that the request by the 1st Defendant made to the YDPA on 09.10.2022 for the dissolution of the 14th Parliament (the request) was in contravention of Article 40(1) and (1)(A) of the FC as the request was not made in furtherance of the advice or based on the general authority of the Cabinet and was therefore null and void;
2.3 Consequentially a declaration that the dissolution of the 14th Parliament on 10.10 .2022, as notified by P.U.(A) 320 (the dissolution) was not in accordance with Article 55(2) read with Article 40(1) and (1A) of the FC and of no legal effect;”
The plaintiff surmised the question of law raised in para 13 whether Article 40(1) and (1A) of the FC applies to Article 55(2) such that the advice of the Cabinet under Article 40(1) is a condition precedent to the exercise of that power of the YDPA.
The further consequential orders were that the 3rd Defendant being the Election Commission did not have authority on a legal basis to conduct an election and to require a restraining order to restrain the 3rd Defendant or its employees and agents from carrying out the same.
The plaintiff application was in turn met with an application by the defendant to strike out the plaintiff suit. The defendant arguments focused onto the pronouncement of the dissolution by the YPDA under Article 40(2)(b) and Article 55(2). This was argued to be non-justiciable and argued as prerogative power where the YDPA does not act on advice and has discretionary powers. The other supplementary contentions were that the matter was academic as the Parliament has been dissolved by YPDA proclamation in accordance with constitution and that the judiciary should uphold the same as the guardian of justice. That the 3rd Defendant is duty bound under the Constitution to hold elections as prescribed time limits under the Article 113(1) which is also non justiciable. Any challenge to election should be governed under the election petition under Article 118.
The High Court Judge YA Ahmad Kamal presiding held that the issue before him is whether the application by the defendant to strike out the plaintiff suit on the ground it is frivolous vexatious and obviously unsustainable has merits.
The relevant provisions of Article 40(1)(1A) and (2) is reproduced below:
“Yang di-Pertuan Agong to act on advice
40. (1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.
(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.
(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:
(a) the appointment of a Prime Minister;
(b) the withholding of consent to a request for the dissolution of Parliament;
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting,
and in any other case mentioned in this Constitution.
(3) Federal law may make provision for requiring the Yang di-Pertuan Agong to act after consultation with or on the recommendation of any person or body of persons other than the Cabinet in the exercise of any of his functions other than—
(a) functions exercisable in his discretion;
(b) functions with respect to the exercise of which provision is made in any other Article.”
2.0 DISCRETIONARY POWER OF THE YDPA UNDER ARTICLE 40(2)(b)
The Court highlighted that the provision that comes into play here is not Article 40(1) requiring YDPA to act on advice but the exception under Article 40(2)(b). The general requirement to act upon advice is displaced where there is an express provision otherwise in the Constitution. In this case the express provision being Article 40(2)(b) that confers a discretionary power to the YDPA. Hence the short answer to the question is that the matter in question is the dissolution of the Parliament for which the YDPA does not need to seek or act on advice of the Cabinet but acts on YDPA sole discretion. Hence once a request for dissolution is before the YPDA then the YDPA has the sole absolute discretion to make the decision (para 42- 45).
3.0 DISCRETIONARY POWER OF THE PM IN DECIDING THE DISSOLUTION OF THE PARLIAMENT
At para 49, the learned Judge quoted with support and agreement, the views of Emeritus Prof. Datuk Dr Shad Saleem Faruqi in “Our Constitution” Sweet and Maxwell (2019) at page 209 (para 51 and 52) that the Prime Minister himself is not bound by views of his Ministers nor is required to get their advice for the dissolution of the Parliament. The Cabinet were subservient to the PM and not the other way around. (para 46-53).
“…As the Prime Minister he is not bound by the Cabinet’s advice. He may by his own initiative confront his colleagues and consult one or two ministers in the inner Cabinet to make decisions. He does not need to consult the Cabinet in budget proposals, in foreign policy initiatives or in advising the monarch in dissolving the Parliament.”
This in effect answers the question of law raised by the plaintiff against the plaintiff. The same would suffice and warrant the grant of the defendant application to strike off the plaintiff application as it is stands on a flawed legal argument that the PM need to consult his cabinet for the dissolution of the Parliament.
Application to Strike Out under Order 18 Rule 19 on the Ground of Non-justiciability
The defendants submitted (para 19) that the plaintiff claim was obviously unsustainable, frivolous and a serious abuse of the court process and should be struck off (para 16-18). It was argued by the defendant that the plaintiff claim should be struck off as there was no reasonable cause of action as proclamation and the dissolution were non justiciable.
The court referred to the case of Dato’ Sri Mohd Najib bin Tun Haji Abdul Razak v Peguam Negara & Ors [2020] 3 MLJ 114 where the court cited that another case where an application for leave under Order 53 may be refused where “the subject matter for review is one settled by law (either written law or common law) is non justiciable, e.g. proceedings in Parliament.”
At para 22 the concept of justiciability was explained by cited text reference to “Chris Finn in The Concept of Justiciability in Administrative Law …that the term justiciability refers to the suitability for or amenability to, judicial review of a particular administrative decision or class of decisions. The term derives from common law and reflects a series of self-imposed judicial restraints, themselves founded in the view as to the appropriate constitutional balance between the respective roles of the executive and the judiciary. Thus, a matter may be deemed ‘non- justiciable’ by a Court which feels that its resolution either is beyond the institutional competence of the Court or would involve stepping outside its appropriate Constitutional role.”
The court referred to a like issue as to dissolution that arose in the Court of Appeal case of Tan Sri Musa Aman & Ors v Tun Datuk Seri Hj Panglima Hj Juhar Hj Mahiruddin & Ors [2021] 3 MLJ 329 where the court had decided that the proclamation and dissolution of the Sabah legislative assembly was a non-justiciable matter notwithstanding if there are sub-matters that are justiciable if the core issue is one that relate to the dissolution (para 27). This was also reiterated in the cited case of Peguam Negara Malaysia v Chin Chee Kow(para 32) and Juraimi Bin Hussian v Pardons Board, State of Pahang [2002] 4 MLJ 529 (para 36 -39).
In the case of Peguam Negara Malaysia v Chin Chee Kow, it is noted that (para 32).
“There are certain areas that the courts are reluctant to delve into. These include the power of the state to enter into treaties and conduct of foreign policy, the defence of the realm and the control of the armed forces, the prerogative of mercy, the dissolution of parliament and the appointment of Ministers. Such powers are governed by broader policy considerations which are more appropriately entrusted to the political branches of government, and which are unsuited to be examined by the courts…”
The learned Judge (para 54 and 55) found merit to strike out the plaintiff claim as the decision of the PM to dissolve the Parliament and the decision of the YPDA to accept the request and issue a proclamation to dissolve the Parliament are held as non- justiciable by the courts of law.
4.0 COMMENTARY ON THE CASE
The case demonstrates the application of the doctrine of non-justiciability by the Malaysian courts in the context of dissolution of Parliament. The courts reserved to the PM and YDPA respectively the absolute discretion in making the call for the same.
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