LETTER | Can Charles Santiago’s lawsuit stop GE15?

LETTER | As all voters are anticipating the announcement by the Election Commission on the key dates of the upcoming GE15, Klang MP Charles Santiago has filed a lawsuit demanding the court to release an order to stop the long-anticipated election, which to him, is “null and void”.

He stated that the Parliament was not dissolved under the advice of the cabinet, which means a violation of Article 40(1) and (1A) of the Federal Constitution.

He supported this claim with the existing divisions within the government, where former prime minister Muhyiddin Yassin is leading his faction to object to caretaker prime minister Ismail Sabri Yaakob’s decision.

Article 40(1) prescribed that the Yang di-Pertuan Agong should act in accordance with the advice of the cabinet or a minister acting under the general authority of the cabinet.

This means the “advice” given to Agong on any key decisions can either come collectively from the cabinet, or from one of the ministers.

Though dissolving the Parliament is the discretionary power of the Agong, as granted by Article 40(2)(b) of the Federal Constitution, His Majesty cannot order the dissolution of Parliament without the advice as prescribed in Article 40(1).

His discretion here lies in his autonomy to either accept or reject the request to dissolve the Parliament, which is unchallengeable by anyone.

Charles’ argument has some points, but in my view, it is not enough to prove that GE15 is called unlawfully. Article 40(1) is silent on whether the prime minister can be counted as “a minister acting under the general authority of the cabinet”.

However, logically, as the head of the cabinet and the executive branch, I believe the prime minister is automatically included in this scope.

This means that the prime minister has all the legal rights to advise the Agong to dissolve the Parliament, paving way for the general election.

Article 40(1) is also silent on whether the prime minister’s advice to the Agong to dissolve the Parliament needs collective approval or agreement by the cabinet members, which leaves some room for argument here.

However, looking at the current scenario, Ismail Sabri definitely has more support within the cabinet to dissolve the Parliament, which means even if collective approval from the cabinet is needed, Ismail Sabri could have held the majority.

Nevertheless, conventionally, there has never been any information disclosing that the prime minister has sought approval from the cabinet before advising the Agong to dissolve the Parliament in past elections.

Even if such approval is sought, it must have been kept obsolete all these years.

Therefore, in my view, it is unlikely for the court to stop GE15 if Charles continues with his current argument.

As the EC is going to announce the key dates today after its meeting, it is essential for all parties to acknowledge the fact that GE15 is coming, and start preparing for their battles.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.