Incumbent MP, voter file leave to appeal in bid to halt polls

PUTRAJAYA: Incumbent Klang Member of Parliament Charles Anthony R. Santiago and Pandan voter Syed Iskandar Syed Jaafar Al-Mahdzar have turned to the Federal Court after the Court of Appeal rejected their appeals relating to their challenge on the Prime Minister’s advice to the Yang-di-Pertuan Agong to dissolve Parliament.

The dissolution of Parliament paved the way for the Election Commission to conduct the 15th General Election (GE15), with polling set for Saturday.

Santiago filed an application to get leave to pursue his appeal to the Federal Court today, while Syed Iskandar file his application Tuesday.

This was confirmed by Santiago’s lawyer Datuk Malik Imtiaz Sarwar and Yasmeen Soh Sha-Nisse, one of the lawyers representing Syed Iskandar.

In his notice of motion, Santiago raised questions of law for the Federal Court to determine whether the power vested in the Yang di-Pertuan Agong by Article 55(2) of the Federal Constitution to dissolve Parliament is only engaged when the Yang di-Pertuan Agong is advised pursuant to Article 40(1) and (1A) of the Federal Constitution.

If so, where the Yang diPertuan Agong dissolved Parliament without the advice of the Cabinet at the sole request of the Prime Minister, is the said request a nullity and therefore justiciable?

If so, would all steps taken in furtherance of such a void request, including the dissolution of Parliament and any steps to conduct the general elections, consequentially be void?

In the notice of motion, Santiago said if leave is given to him, he sought for his appeal to be heard on or before Nov 18.

Meanwhile, in the notice of motion, Syed Iskandar proposed two questions of law.

The questions are whether the effect of Article 40 (2) (b) read together with Article 55 of the Federal Constitution is to render non-justiciable the request for the dissolution of Parliament made by the Prime Minister to the Yang di-Pertuan Agong based on the decisions in two cases - Teh Cheng Poh v Public Prosecutor (1979) and R (Miller) v Prime Minister (2020).

The other question is whether the Rules of Court 2012 on application for leave to seek judicial review may be resisted by the Attorney-General on an objection without delivering an affidavit deposing to the facts in issue.

In civil cases, applicants are required to obtain leave before they can proceed with their appeals in the Federal Court.

Santiago wants the court to reinstate his originating summons which he filed against caretaker Prime Minister Datuk Seri Ismail Sabri, the government of Malaysia and the Election Commission, seeking for several court orders including a declaration that Ismail Sabri’s request to the Yang di-Pertuan Agong for dissolution of Parliament is null and void as it was not made on the Cabinet’s advice.

Syed Iskandar, meanwhile, wants the court to give him leave to commence a judicial review, seeking for a declaration that the Prime Minister’s request to dissolve Parliament is null and void and of no effect.

Santiago’s suit was struck out by the High Court on Oct 28 after it allowed the government’s application to do so. The same High Court, on the same day, also rejected Syed Iskandar’s application to get leave to commence a judicial review.

Both men lost their appeals Tuesday at the Court of Appeal.