Court rules Khairuddin has no standing to sue AG for endorsing Emergency advice

KUALA LUMPUR, April 27 ― The High Court has rejected Datuk Seri Khairuddin Abu Hassan’s application for judicial review of Attorney General Tan Sri Idrus Harun’s endorsement for Tan Sri Muhyiddin Yassin’s advice to the Yang di-Pertuan Agong for an Emergency.

In his decision, High Court Judge Datuk Ahmad Kamal Md Shahid said Khairuddin failed to show he had any legal standing to seek the judicial review or that he was directly harmed by the events.

“It is my view that the applicant (Khairuddin) has not shown how he had been adversely affected by the respondent’s omission. There was no proof that the applicant has any specific legal right or real and genuine legal interest in this subject matter.

“The applicant in his statement and his affidavit had claimed that he does not need to demonstrate locus standi for judicial review because the phrase ‘adversely affected’ for obtaining prior permission to bring the case under the Federal Constitution is not required.

“The applicant sought to anticipate the issue of locus standi by citing a previous action he instituted wherein locus standi was not an issue.

“I am of the view that the above submission by the applicant is without merit. The Federal Court’s decisions have clearly provided for the requirement of locus standi and its threshold test.

“More importantly the legal threshold of locus standi set out under Order 53 of the Rules of Court 2012 has not been satisfied,” he said.

Khairuddin, through his ex-parte application, applied for six court orders, citing provisions within Article 43(4) of the Federal Constitution on steps to be taken after the prime minister loses majority support, and Article 145(2) that spells out the AG’s responsibilities as the country’s legal adviser.

Khairuddin asserted that Idrus, in his capacity as the AG, did not provide accurate and appropriate legal advice to the prime minister and Agong; had acted unconstitutionally when he accompanied Muhyiddin on January 11 to advise the Agong to declare the state of Emergency; had failed to notify Muhyiddin of the correct steps to be taken after January 9 when Machang MP Datuk Ahmad Jazlan Yaakob withdrew support from the government; and that Muhyiddin did not have majority support in Parliament at the time the Emergency was declared.

Khairuddin sought for the courts to declare the AG should have abided by Article 43(4) and advised the prime minister to seek an audience with the Agong, and then decide to either resign from his post or dissolve Parliament.

When met after the decision was read, Khairuddin’s lawyer Mohamed Haniff Khatri Abdulla said they will take the matter to the Appeals Court.

“My client believes that if the decision does not favour us today, we will take it to the Appeals Court because matters pertaining to the Constitution cannot be solved with politics.

“As long as these federal institutions are not pushed to implement the Constitution well, the country will be devastated by politics. It is imperative for the Appeals Court to look at Article 145, and if we can review it, because today’s High Court decided that we can’t,” said Haniff.

“If we can’t review it, then how do we determine if a federal institution is conducting its duty properly? The Court also said Khairuddin has no locus standi today. However, based on the Constitution, we feel he has a right to challenge the constitutionality and to ensure it is followed and adhered to. So this is not a personal rights issue.”

Khairuddin said he felt he had a moral duty based on the Federal Constitution that the current or future AG must be the one who upholds the law.

On this issue, Khairuddin said apart from being a Malaysian, he was also a people’s representative nominee and felt that he had enough merit to ask for the judicial review.

“When the AG went to meet the Agong with Muhyididn, he was supposed to tell the latter that he had no validity to meet the Agong nor ask for the Emergency.

“This issue of legitimacy should have been addressed by the AG on that day itself as Muhyiddin was already not the legitimate prime minister. So this is what we are disputing,” said Khairuddin.

In addition, Haniff said that the judge’s assertion that there was no proof that Muhyiddin lost the majority support on January 11. Haniff said all announcements had been made public through the media and the people knew about it already.

“All announcements regarding majority and loss of majority in Parliament and such were made at the time through the media. The judge however said we did not have enough proof to show the loss of majority. This will have to be evaluated at the Appeals Court.

“Also, at the leave stage, you (judge) go so much into the details. It defeats the leave stage and all this will be tested in the Court of Appeal. Whether or not the High Court had followed the thresholds at this stage or not,” added Haniff, alluding to the 12 different cases the judge referred to in his decision today.

Previously, a similar suit was filed by Khairuddin, where he had asked the courts to decide whether a prime minister, who no longer has the majority support of MPs in the Dewan Rakyat, can still advise the Agong to proclaim an Emergency or suspend Parliament sittings.

Khairuddin, after leaving Bersatu, became a member of Parti Amanah Negara, and had in July last year withdrawn from Pakatan Harapan.

Khairuddin, who is known to be a loyalist of Parti Pejuang Tanah Air (Pejuang) chairman Tun Dr Mahathir Mohamad, is not currently known to have an affiliation with any political party.

Recently, Dewan Rakyat Opposition Leader Datuk Seri Anwar Ibrahim also filed his own lawsuit, which was followed by three more Opposition lawmakers, in their bids to contest the constitutionality of the Emergency Declaration and the processes surrounding it.