KUALA LUMPUR (Oct 28): The High Court has dismissed a lawsuit filed by incumbent Klang Member of Parliament Charles Santiago to challenge the 14th Parliament's dissolution, as it deemed the lawsuit scandalous, vexatious and an abuse of the court process.
Judge Datuk Ahmad Kamal Md Shahid, in reading his decision on Friday (Oct 28), said the lawsuit is not justiciable and not suitable to be reviewed by the court.
"The prime minister is not bound by the Cabinet's advice. He may consult one or two senior ministers before making decisions. He does not need the Cabinet's approval in advising the Agong to dissolve Parliament," the judge said.
Ahmad Kamal said with that, the case has no merit, and he proceeded to strike out the lawsuit.
The suit was filed by Santiago against Caretaker Prime Minister Datuk Seri Ismail Sabri Yaakob, the Malaysian government and the Election Commission.
The judge said that the decision to dissolve Parliament is "the absolute discretion and prerogative rights of the Yang di-Pertuan Agong (YDPA) under Article 55(2) read together with Article 40(2) of the Federal Constitution.
He said that Article 55(2) of the Federal Constitution must be read together with Article 40(2)(b), which states that the withholding of consent to a request for the dissolution of Parliament is under the discretion of the YDPA.
Absolute power of the prime minister
In making his decision, Ahmad Kamal quoted Prof Datuk Dr Shad Saleem Faruqi's book Our Constitution, which stated that the PM possesses the power to determine the meeting of the Cabinet and matters to be discussed.
The book also stated that the PM is not bound by the Cabinet's advice.
"I am in agreement with this view. The PM, as the head of the executive, does not need the consultation of his Cabinet in making a request to the YDPA to dissolve Parliament. He is entitled to make his own decisions as it is his absolute power as the premier," the judge said.
"The prime minister too, who held the ultimate power in the executive, does not need to consult his Cabinet in requesting for the dissolution of Parliament. I view that since the sole and ultimate power to request for the dissolution of the Parliament lies solely in the hand of the prime minister, the contention of the plaintiff challenging the validity of the request to dissolve Parliament is of no merit," he added.
Previously, Charles' lawyer Datuk Malik Imtiaz Sarwar contended that the caretaker prime minister had to consult his Cabinet ministers and that it was clear from the press that Ismail Sabri had not done so before advising the King.
Malik Imtiaz said the YDPA shall act in accordance with the advice of the Cabinet to dissolve Parliament, and based on information gathered, it was clear that the Cabinet did not accede to the request, and several of them had even written to the King to express their disagreement.
However, Ahmad Kamal further added that the PM's power to request for the dissolution too was a non-justiciable subject matter.
"Being the head of the executive, his request to dissolve the Parliament does not need the consultation of the Cabinet members. The decision to dissolve the Parliament is entirely his," he said.
Ismail Sabri, the EC and the Malaysian government were represented by Tan Sri Zulkefli Ahmad Makinudin, Datuk Mohd Hafarizam Harun and Datuk Abu Bakar Isa Ramat. Meanwhile, Malik and Surendra Ananth appeared for Charles.
Ahmad Kamal then ordered Charles to pay the defendant parties RM20,000 in costs.
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