Syed Iskandar Syed Jaafar al-Mahdzar has filed two questions of law which he says merit hearing by the apex court.
In a civil case, the Federal Court will only hear an appeal on its merits if it raises a question of law which the apex court has not previously ruled on or involves an important question for which a decision would be to public advantage.
Syed Iskandar is asking the apex court to determine whether Articles 40(2)(b) and 55 of the Federal Constitution, when read together, render non-justiciable a request for the dissolution of Parliament made by the prime minister to the Yang di-Pertuan Agong.
He says two landmark cases merit consideration, namely, Teh Cheng Poh v Public Prosecutor (1979), and a decision of the UK Supreme Court, R (Miller) v The Prime Minister (2019).
The second question is whether the rules of court allow the attorney-general to resist an application for leave to commence judicial review proceedings by raising an objection without setting out the facts of the case in an affidavit.
On this point, Syed Iskandar is calling for the Federal Court to consider the decision of the Court of Appeal in Teh Guat Hong v Perbadanan Tabung Pendidikan Tinggi Nasional (2017) and Najib Razak v Peguam Negara (2020).
The motion was filed yesterday, soon after a three-member Court of Appeal bench upheld an Oct 28 High Court ruling that the King had absolute discretion as to whether to accept the prime minister’s advice and dissolve the Dewan Rakyat.
“The absolute discretion of the Yang di-Pertuan Agong to accede to the request of the prime minister to dissolve Parliament cannot be brought to court on grounds of non-justiciability,” said Justice Azizah Nawawi, who delivered a unanimous ruling.
Azizah also said a consequential order to restrain or prohibit the Election Commission from conducting the polls within 60 days once the Dewan Rakyat was dissolved was also untenable in law.
Lawyer R Kengadharan, a member of Syed Iskandar’s legal team, said his client has also filed a certificate of urgency so that the appeal is not rendered academic.
“We are taking steps to move the apex court to hear the leave application by tomorrow,” he told FMT, adding that the cause papers have been served on the Attorney-General’s Chambers.
One of the grounds on which Attorney-General Idrus Harun objected to Syed Iskandar’s application for leave to commence judicial review proceedings was that it was non-justiciable.
Lawyer Gopal Sri Ram, who appeared for Syed Iskandar, said the calling for elections by the prime minister was an unreasonable act and had not been done in good faith.