KUALA LUMPUR, Feb 17 — The Malaysian government today applied to the High Court to strike out Datuk Seri Khairuddin Abu Hassan’s lawsuit, arguing that it would be a waste of court time to hear his challenge over the validity of the prime minister’s advice to the King for an Emergency declaration.
Khairuddin had on January 18 filed his lawsuit against Tan Sri Muhyiddin Yassin, who is the prime minister, and the Malaysian government, in which he had asked the courts to decide four questions of law, including whether a prime minister who has lost majority support can still offer advice to the Yang di-Pertuan Agong.
Today, the Attorney General’s Chambers (AGC) filed the application to have Khairuddin’s lawsuit struck out, on the two main grounds that it is allegedly “scandalous, frivolous and vexatious” and an “abuse of the court’s process”.
Separately, the AGC’s Solicitor General Datuk Abdul Razak Musa filed an affidavit today to support the bid by both Muhyiddin and the Malaysian government to strike out Khairuddin’s lawsuit.
In the affidavit, which was sighted by Malay Mail, Abdul Razak noted that Khairuddin had in his lawsuit applied to have the courts decide several constitutional and legal questions regarding the validity of the advice and action by Muhyiddin when he has allegedly lost the support of the majority of members of the Dewan Rakyat.
Abdul Razak said however that there was no proof in Khairuddin’s court documents to support his claim that Muhyiddin has lost majority support.
Abdul Razak said he believes that Khairuddin had failed to identify which of his rights or legal interests had been denied or what losses he had suffered as a result of Muhyiddin’s advice to the Yang di-Pertuan Agong, and to identify the issue or controversy between Khairuddin and Muhyiddin and the Malaysian government that would require a court decision.
“I truly believe and state that the plaintiff’s application is futile (sia-sia) and a waste of the court’s time as it only contains questions without a legitimate purpose and will not provide benefit to anyone,” he said in his affidavit.
Abdul Razak added that he believes Khairuddin’s list of four questions to the court was purely aimed at bypassing Article 150(8) of the Federal Constitution.
Among other things, Article 150(8) states that no court shall have jurisdiction to entertain or decide on any application or question regarding the validity of a Proclamation of Emergency or Emergency Ordinances or the continued operation of such proclamations or Emergency laws.
Apart from that, Abdul Razak said he also believes Khairuddin’s lawsuit was allegedly misconceived in law and did not have merit, before asking the High Court to strike out the lawsuit.
When contacted by Malay Mail, Khairuddin’s lawyer Muhammad Rafique Rashid Ali confirmed receiving the court documents filed by the AGC today.
Rafique also said that the case will come up for case management this Friday (February 19).
The four questions in Khairuddin’s lawsuit
In Khairuddin’s lawsuit that was filed last month by originating summons, he had asked the courts to decide on four constitutional questions, including whether advice — by a prime minister who had lost the confidence of the majority of the members of the Dewan Rakyat — to propose to the Yang di-Pertuan Agong for a declaration of Proclamation of Emergency is invalid and unconstitutional.
The second question asked by Khairuddin was whether advice by the prime minister — to the Yang di-Pertuan Agong for a declaration of Proclamation of Emergency was made in fraudem legis or in fraud of the law, when the prime minister at the time of giving the advice had lost the confidence of the majority of the Dewan Rakyat members to remain as prime minister.
The third question asked was whether the decision of a Cabinet — led by a prime minister who has lost the confidence of the majority of the Dewan Rakyat members — to propose a declaration of Proclamation of Emergency to the Yang di-Pertuan Agong is invalid and unconstitutional.
The fourth and final question asked was whether the suspension of Parliament sittings up to August 1, 2021 by a prime minister who has lost the confidence of the majority of the Dewan Rakyat members is invalid and unconstitutional.
While Khairuddin is better known as a politician who has been in multiple parties, he is also a loyalist of Tun Dr Mahathir Mohamad. It is understood that he filed his case as a Malaysian citizen without mentioning any political affiliation.
In his affidavit to support his own lawsuit, Khairuddin had said his case is a public interest litigation aimed at defending the Federal Constitution, parliamentary democracy and the rule of law, besides also asserting that the January 9 withdrawal of support by Umno MP Datuk Ahmad Jazlan Yaakob towards Muhyiddin as prime minister had resulted in the latter losing majority support.
The Proclamation of Emergency by the Yang di-Pertuan Agong on the advice of the Muhyiddin-led Cabinet was gazetted on January 12, and deemed to have taken effect from January 11 to August 1.
Following the Emergency declaration on Malaysia, the Emergency (Essential Powers) Ordinance 2021 — which suspends all elections and the sitting of Parliament — was gazetted by the government on January 14 and also deemed to have taken effect from January 11 onwards.
