Appeals by incumbent MP, voter to halt GE15 dismissed, polling to proceed

Following this decision, polling will be held on Saturday as scheduled.

Justice Datuk Azizah Nawawi, who led a three-member panel, said the decision to dissolve Parliment is the absolute discretion of the Yang di-Pertuan Agong and his discretion is non-justiciable (cannot be adjudicated by the court).

"Only the King has the power to dissolve Parliament under Article 55 (2) of the Federal Constitution which then triggers the general election," said Justice Azizah, who sat with Justices Datuk Che Mohd Ruzima Ghazali and Datuk See Mee Chun.

She said the consequential orders sought by Santiago and Syed Iskandar Syed Jaafar to restrain the EC from taking steps to conduct the GE15 are not tenable in law.

"The EC has the constitutional duty to conduct the general election under Article 113 of the Federal Constitution within 60 days after dissolution of Parliament, as provided for under Article 55 (4) of the Federal Constitution," said Justice Azizah.

She cited a court authority stating that the EC cannot be restrained or prohibited from performing its constitutional duties under the Federal Constitution.

Justice Azizah said even if there were merits in the appellants' contention that the issue of whether the Prime Minister must act on the advice of the Cabinet to request for the dissolution of Parliament is a matter that can be challenged in court, the request for dissolution of Parliament was accepted by the Yang di-Pertuan Agong and his decision remains non-justiciable.

She said both Santiago and Syed Iskandar's appeals did not have merits and dismissed their legal actions with no orders as to costs.

She said the High Court judge was not wrong to strike out Santiago's originating summons and reject Syed Iskandar's application for leave to commence judicial review on the grounds that the Yang di-Pertuan Agong's decision to dissolve Parliament is non-justiciable.

Meanwhile, Justice Azizah also dismissed an application by Syed Iskandar's counsel R. Kengadharan for an interim injunction to restrain the EC from conducting the general election pending the filing of an application for leave to appeal to the Federal Court.

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

Syed Iskandar, meanwhile, wanted the court to give him leave to commence a judicial review to challenge the dissolution of Parliament and the holding of the general election.

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.

Today's decision was delivered in online proceedings. Lawyers Datuk Malik Imtiaz Sarwar and A. Surendra Ananth represented Santiago while lawyers Tan Sri Zulkefli Ahmad Makinudin and Datuk Wira Mohd Hafarizam Harun appeared for Ismail Sabri, the government of Malaysia and the EC.

As for Syed Iskandar's case, he was represented by Yasmeen Soh Sha-Nisse while senior federal counsel Shamsul Bolhassan and Ahmad Hanir Hambaly @ Arwi and Federal Counsel Low Wen Zhen appeared for the EC chairman, Ismail Sabri and the government.