Court rules Khairuddin has no locus standi to file legal action against AG over advice for PM

Judge Datuk Ahmad Kamal Md Shahid said this was clearly outlined in Order 53 rule 2(4) of the Rules of Court (ROC) 2012, that to have a locus standi in a judicial review application, the applicant (Khairuddin) must be adversely affected by the decision, action or omission of any public authority in relation to the exercise of its public duty or function.

In his judgement, Justice Ahmad Kamal said it is his view that Khairuddin has not shown how he had been adversely affected by the omission and there was no proof that the he has any specific legal right or real and genuine legal interest in the subject matter.

“To establish locus standi, Khairuddin claimed that he is a Malaysian citizen and a tax payer therefore has genuine and legitimate interest on the public affairs of Malaysia, particularly with regards to governance and formation or government.

“It should be stressed that where there is no decision, action or omission falling within the ambit of Order 53 rule 2(4) of the ROC 2012, Khairuddin cannot be said to be a person “adversely affected” by the same.

“In the absence of such a decision, Khairuddin lacks locus standi to make the application,” the judge said when dismissing the leave application for a judicial review by Khairuddin seeking a mandamus order for Idrus to advise Muhyiddin to step down as the Prime Minister.

Justice Ahmad Kamal further said Khairuddin’s assumption that the Prime Minister no longer has the confidence of a majority of members in the Dewan Rakyat to maintain his position as the Prime Minister must be established.

“The issue on the majority of members must be determined in any forum or by any authority, which is not the case in this application. The assertion is presented as a fait accompli to be accepted as an unquestionable statement of fact.

“In addition to that, I am of the opinion that all the reliefs sought for are subject to a common factual assumption that is by definition unproven and the factual issue itself is not even stated as a relief to be determine by this court,” he said.

The judge added he shared the same view with the learned Senior Federal Counsel that there is nothing to indicate Idrus’ impugned acts being together with the Prime Minister’s entourage or omitting to advise him or the Yang di-Pertuan Agong (YDPA) pursuant to Article 145 (2) of the Federal Constitution has any legal effect.

“It would serve no practical utility if the AG is compelled by an order of mandamus to advise the Prime Minister or the YDPA in terms sought by Khairuddin as such advice would have no binding legal effect and will not alter the legal position of him or any other person.

“Accordingly, it is apparent that the said omission in this application does not fall within the ambit of Order 53 rule 2(4) of the ROC 2012 hence not amenable for judicial review. There were no decisions by Idrus that are amenable for judicial review,” said the judge.

Justice Ahmad Kamal also wish to highlight that there is a spelling error in the respondent’s (Idrus) name as the application was made against ‘Tan Sri Idris Harun’ whereas it should be ‘Tan Sri Idrus Harun’.

“It could be argued that Khairuddin has brought an action against the wrong party. However, this is a minor issue since there is only one person who is holding the post of Attorney-General. There could not be any other person holding such post in the country.

“Based on the reasonings, this court allows the senior federal counsel objection and dismissed the applicant’s application with no order as to costs,” said the judge adding that the applicant has failed to cross the hurdle of the judicial review test and it is clear that this application for leave is frivolous.

Senior federal counsel Narkunavathy Sundareson acted for the respondent while lawyer Mohamed Haniff Khatri Abdulla represented the applicant.

Mohd Haniff, when met outside the court after the proceeding told reporters he received instruction from his client to file an appeal against the court decision today.

On Feb 3 this year, Khairuddin has filed an application for leave to initiate a judicial review against Idrus wanting the court to declare that his move to accompany Prime Minister Tan Sri Muhyiddin Yassin to meet the Yang di-Pertuan Agong on Jan 11 to get an emergency declaration was invalid as the premier did not have a majority.

Prior to that, on Jan 18, the former Jasin parliamentary coordinator also filed a suit against Muhyiddin and the government of Malaysia to challenge the prime minister’s action of advising the Yang di-Pertuan Agong to declare a State of Emergency to contain the COVID-19 pandemic.