AUGUST 18 — Lawyer P. Waytha Moorthy on Tuesday (August 12) filed a legal action or suit seeking a declaration that Prime Minister Anwar Ibrahim should not have been elected as Member of Parliament (MP) for Tambun in November 2022 and appointed prime minister.

He contends that Anwar’s 2018 royal pardon did not state that he was exempt from the five-year disqualification period for contesting an election after being released from prison.

Waytha, a minister in Dr Mahathir Mohamad’s Cabinet from 2018 to 2020, wants the High Court here to declare Anwar’s election as Tambun MP on Nov 19, 2022, and his appointment as prime minister five days later, null and void.

Waytha’s suit is by way of an Originating Summons (OS) naming Anwar as the defendant.

The OS may not have been served on Anwar yet as the defendant, but the matter is now sub judice — that is, before the court.

The court is invested with extensive powers to strike out actions. These powers are said to be both salutary and necessary to dispose of actions which are hopeless, baseless or without foundation in law or in equity or are otherwise an abuse of the process of the court.

The powers are exercised by the court summarily, speedily and generally at an early stage of the proceedings, and they operate as a powerful, effective method of disposing of proceedings without a trial or full hearing.

The powers are derived from two parallel sources. First, they are conferred by rules of court — that is, the Rules of Court 2012. Second, they are exercisable under the court’s inherent jurisdiction.

The sources are cumulative, not alternative, and may be invoked by the parties and employed by the court simultaneously. 

The powers are, however, permissive and not mandatory, conferring a discretionary jurisdiction which the court will exercise in the light of all the circumstances concerning the action.

The discretion is further said to be exercised by applying two fundamental and complementary principles. The first principle is that the parties will not lightly "be driven from the seat of judgment" — a phrase used by Fletcher-Moulton LJ in an old English case of Dyson v A-G — without the court having considered the parties’ right to be heard, except in cases where the action is obviously and almost incontestably bad.

The first principle means that the court will exercise its discretionary power with the greatest care and circumspection, and only in the clearest cases. 

In other words, as the power to dismiss an action summarily without permitting the plaintiff to proceed to trial is a drastic power, it should be exercised with utmost caution.

The second principle is that a stay or even dismissal of proceedings may ‘often be required by the very essence of justice to be done’, so as to prevent the parties being harassed and put to expense by frivolous, vexatious or hopeless litigation. (See the judgment of Lord Blackburn in Metropolitan Bank Ltd v Pooley)

Under Order 18 rule 19(1) — read together with rule 19(3) — Rules of Court 2012, the Court may at any stage of the proceedings order to be struck out an OS on the ground that –

(a) it discloses no reasonable cause of action;

(b) it is scandalous, frivolous or vexatious;

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the Court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

So, as I have said that Anwar’s application for referral of constitutional questions to Federal Court should take its course, I should say the same here: let Waytha’s suit take its course.

Let the court decide whether the suit should be struck out under the rules of court or under the court’s inherent jurisdiction.

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.