Santiago and Pandan voter’s bid dismissed

PUTRAJAYA: The Federal Court has dismissed the applications by a former MP and a Pandan voter to challenge the Prime Minister’s request to the Yang di-Pertuan Agong (YDPA) to dissolve Parliament in October last year.

A three-judge panel chaired by Justice P. Nallini threw out the case by both former Klang MP Charles Santiago and Pandan voter Dr Syed Iskandar Syed Jaafar Al Mahdzar after allowing the preliminary objection by the government, former prime minister Datuk Seri Ismail Sabri Yaakob and the Election Commission (EC).

Justices Vernon Ong Lam Kiat and Mary Lim Thiam Suan also sat on the panel.

In the proceedings conducted online, both federal counsel Low Wen Zhen, representing Ismail Sabri, the government and EC in Syed Iskandar’s case; and lawyer Tan Sri Zulkefli Ahmad Makinuddin, representing these three in Santiago’s case; argued that the court should not grant leave as the matter had become academic.

In the unanimous decision, Justice Nallini said the subject matter had been rendered academic as the 15th General Election had concluded with a new government in place.

During submissions earlier, lawyers Datuk Seri Gopal Sri Ram (representing Syed Iskandar) and Datuk Malik Imtiaz Sarwar (representing Santiago) asked the panel to make prospective declarations to answer their legal questions with regards to the justiciability issue without affecting the outcome of the recent elections.

On this proposal, Justice Nallini said it was not possible to divorce the result from the events that commenced and ensued from the request of the dissolution of Parliament.“Because the two are indivisible. We cannot sever one from the other. For these reasons we are constrained to exercise our discretion.

“Preliminary objection is allowed and we dismiss the applications with no order as to costs,” she said.

On Oct 11, 2022, Santiago filed the originating summons to seek a court order in his bid to stop the general election due to the rainy season and floods.

Meanwhile, on Oct 14, the same year, Syed Iskandar filed an application for leave to initiate judicial review in seeking a declaration that the request by former prime minister Ismail Sabri to the YDPA on Oct 9 for the dissolution of Parliament pursuant to Articles 40(2)(b) and 55(2) of the Federal Constitution is null and void and of no effect.

On Oct 28, 2022, High Court judge Justice Ahmad Kamal Md Shahid allowed a striking out application filed by Ismail Sabri (who is a defendant) on Santiago’s originating summons and dismissed the leave application by Syed Iskandar on grounds that the matter at hand was non-justiciable.

The judge said as the Prime Minister, Ismail Sabri did not need to consult his Cabinet members in requesting for the dissolution of the 14th Parliament from the YDPA.

Santiago and Syed Iskandar appealed the matter and on Nov 15, 2022, a three-judge panel of the Court of Appeal dismissed their appeals on grounds that the High Court judge did not err in dismissing both legal challenges.

Justice Azizah Nawawi, who chaired the panel, said it has been ruled in several cases that the absolute discretion of the YDPA was non-justiciable, including the case of former Perak mentri besar Datuk Seri Mohammad Nizar Jamaluddin, where the Federal Court held that the decision whether or not to dissolve the Perak state legislative assembly was in the absolute discretion of the state Ruler, the Sultan of Perak.

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