The High Court today ruled that Prime Minister Ismail Sabri Yaakob did not need to consult Cabinet members in making a request for the Yang di-Pertuan Agong to dissolve Parliament.
Judge Ahmad Kamal Md Shahid said the prime minister was entitled to make his own decision as it was his absolute power as 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 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 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 on whether to accept or reject the request," he said.
He said this in allowing the application by Ismail, the Government and the Election Commission (EC) to strike out the lawsuit by incumbent Klang MP Charles Santiago, filed on Oct 11.
Kamal said the Yang di-Pertuan Agong was a constitutional monarch and the head of the state while the prime minister was the head of the government, adding that executive power resides in the hands 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 for 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.
Kamal said the prime minister was also entitled to say what issues should be reported to him personally or for decisions outside of 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 to dissolve Parliament," he said.
The judge said the court was of the view that the plaintiff, Santiago, had no reasonable cause of action against the defendants on the grounds 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's request to the Yang di-Pertuan Agong in October to dissolve the 14th Parliament was in violation of Article 40(1) and (1A) of the Federal Constitution as it was not made on the advice of the Cabinet and was therefore null and void.
He also sought to stop the EC from conducting the 15th general election due to the flood season.
Lawyer Zulkefli Ahmad Makinudin, a former chief judge of Malaya, and Mohd Hafarizam Harun, together with senior federal counsel Shamsul Bolhassan from the Attorney-General’s Chambers represented the defendants while Malik Imtiaz Sarwar acted for the plaintiff.
Meanwhile, Kamal also dismissed a Pandan voter’s leave application for a judicial review to challenge the dissolution of Parliament and the holding of GE15 during the monsoon season.
Syed Iskandar Syed Jaafar Al Mahdzar, who is also a lawyer, had filed the application naming the EC chairman, Ismail and the government as respondents.
The judge ruled that the dissolution of Parliament was non-justiciable and an issue to be considered within the executive and legislative sphere that should not be entertained by the judiciary with caution.
"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 Gopal Sri Ram appeared for Syed Iskandar.