PM doesn't need to consult Cabinet to seek Parliament dissolution, High Court rules

Judge Datuk Ahmad Kamal Md Shahid said the prime minister is entitled to make his own decision as it is his absolute power as the premier.

He said since the dissolution of Parliament was made by the Yang di-Pertuan Agong on the prime minister's request under Article 42 (b) of the Federal Constitution, the need for the Cabinet advice under Article 40 (1) and Article 40(1A) of the Federal Constitution was not required.

"I am of the view that since the ultimate power to request for the resolution of the Parliament lies solely in the hands of the prime minister, the contention of the applicant challenging the validity of the request to dissolve Parliament is of no merit.

"The prime minister can make a request for the dissolution without the advice of his cabinet and ultimately the Yang di-Pertuan Agong has the discretion whether to accept or reject the request," he said.

The judge said this He said this in allowing the application by Ismail Sabri, the Malaysian Government and the Election Commission (EC) to strike out the incumbent Klang Member of Parliament (MP) Charles Santiago's lawsuit which was filed on Oct 11.

Justice Ahmad Kamal further said, the Yang di-Pertuan Agong is a constitutional monarch and is the head of the state while the prime minister is the head of the government and the executive power resides in the hand of the prime minister.

He said Article 40 (1) and (1A) of the Federal Constitution provides that the Yang di-Pertuan Agong be bound by the advice of the Cabinet in carrying out his functions, except for a few matters as provided under Article 40 (2) of the Federal Constitution.

"The prime minister also, as the head of the government, has the sole power to appoint the Cabinet of his choice. The power that a prime minister possesses would include promoting, dismissing and appointing a minister of his choice, at any time, for reasons he thinks fit," he said.

Judge Ahmad Kamal said the prime minister is also entitled to say what issues shall be reported to him personally or for decisions outside the Cabinet.

"As the prime minister, he is not bound by the Cabinet's advice. He may, by his own initiative, confront his colleagues and consult one or two ministers in the 'inner Cabinet' to make decisions. He does not need to consult the Cabinet in budget proposals, in foreign policy initiatives or in advising the monarch in dissolving the Parliament," he said.

The judge said the court is of the view that the plaintiff (Santiago) has no reasonable cause of action against the defendants on the ground that the proclamation and dissolution of Parliament are non-justiciable subjects.

Describing the suit as scandalous, frivolous, vexatious and an abuse of the court process, the court ordered the plaintiff to pay RM20,000 in costs to the defendants.

Santiago in his suit sought, among others, a declaration that Ismail Sabri's request to the Yang di-Pertuan Agong last October to dissolve the 14th Parliament was in violation of Article 40(1) and (1A) of the Federal Constitution because it was not made on the advice of the Cabinet and is therefore null and void.

He also sought to stop the EC from conducting the 15th General Election due to the flood season.

Lawyer Tan Sri Zulkefli Ahmad Makinudin, who was former Chief Judge of Malaya and Datuk Mohd Hafarizam Harun together with senior federal counsel Shamsul Bolhassan from the Attorney-General's Chambers represented the defendants while Datuk Malik Imtiaz Sarwar acted for the plaintiff.

Meanwhile, Judge Ahmad Kamal also dismissed a Pandan voter's leave application for a judicial review to challenge the dissolution of Parliament and the holding of the GE15 during the monsoon season later this year.

Dr Syed Iskandar Syed Jaafar Al Mahdzar who is also a lawyer filed the application and named the EC chairman, Ismail Sabri and the Government of Malaysia as respondents.

The judge ruled that the dissolution of Parliament is non-justiciable and is an issue to be considered a matter within the executive and legislative sphere, that should not be entertained by the judiciary with caution.

"Taking into account Articles 32 (1), 40 (2)(b) and 55 (2) of the Federal Constitution, it shows that the intention of the framers that any decision made by the Yang di-Pertuan Agong in respect of the dissolution of Parliament is non-justiciable in any proceedings in court.

"The issue is a non-justiciable issue and this subject matter is therefore not amenable to judicial review," he said.

Shamsul Bolhassan represented the respondents while senior lawyer Datuk Seri Gopal Sri Ram appeared for Syed Iskandar.