KUALA LUMPUR, Nov 8 — The Attorney General’s Chambers (AGC) has objected to the leave application for a judicial review brought by Adly Zahari to stop the Melaka state election scheduled for November 20, saying that the legal action brought by the former Melaka chief minister is non-justiciable.
Senior federal counsel, S. Narkunavathy told the High Court that the applicant (Adly) did not have an arguable case for the merits to be heard at the substantive hearing of the judicial review.
“In connection with the unconstitutionality of legislation, we have seen that even where a fundamental right has been invaded by a statute, the individual who is affected thereby may not have a remedy from a court of law because the issue involved is not justiciable,” she said.
Adly, 50, filed the application by naming Melaka Chief Minister Datuk Seri Sulaiman Md Ali, Melaka State Assembly Speaker Datuk Seri Ab Rauf Yusoh, the Election Commission (EC) and Melaka Yang Dipertua Negeri Tun Mohd Ali Rustam as the first, second, third and fourth respondents, respectively.
Narkunavathy further submitted that the core of the applicant’s challenge in the judicial review proceeding was the dissolution of the Melaka State Legislative Assembly on the premise that the first respondent (Sulaiman) ceased to command the confidence of the majority of the members.
“Guided by the dicta of the Court of Appeal in Tan Sri Musa Aman’s case, it is clear that matters relating to the proclamation and dissolution of the Assembly are clearly non-justiciable and insulated from judicial scrutiny. This leave application has no merit,” she said and sought the court to dismiss the leave application.
Counsel Razlan Hadri Zulkifli, representing Adly, countered that the first respondent (Sulaiman) had no constitutional basis to advise the fourth respondent (Mohd Ali) to dissolve the state legislative assembly.
He said it was clear that the first respondent had already ceased to command the confidence of the majority when he allegedly advised the fourth respondent to dissolve the state legislative assembly.
“Hence the applicant submits that unless the fourth respondent had exercised his discretion under Article 8(2) of the Melaka State Constitution, that is, to withhold the request to dissolve the State Legislative Assembly, the proclamation to dissolve it under Article 19(2) of the Melaka State Constitution is not an exercise of his discretion,” the lawyer said.
Judge Datuk Noorin Badaruddin fixed November 10 to deliver her decision on whether to grant leave to Adly for the full merits of his application to be heard.
Adly is seeking a declaration that the action of the first respondent (Sulaiman) in advising the fourth respondent (Mohd Ali) on October 4 to dissolve the State Legislative Assembly according to Article 19 (2) of the Melaka State Constitution after no longer having the confidence of the majority of the assemblymen prior to that was illegal and therefore null and void.
He is also seeking a declaration that it was unreasonable and irrational for the first respondent to advise the fourth respondent to dissolve the state assembly in the circumstances of the ongoing Covid-19 pandemic or endemic in the country.
Adly is also seeking for a certiorari order for the Election Commission’s writ of election dated October 18 for the state election to be quashed, costs and other relief deemed fit by the court.
In his supporting affidavit, Adly said the first respondent had lost the support of the majority of the state assemblymen on October 3 and 4, therefore he was not clothed with any authority pursuant to the Melaka State Constitution to advise the fourth respondent to dissolve the state assembly.
Adly said Melaka had been affected by the severe economic slowdown due to the Covid-19 pandemic since early 2020. — Bernama
