OCT 28 — Ordinarily, a plaintiff must have a cause of action to commence a civil action.
However, if the plaintiff seeks a declaration, which is defined as a declaratory order or judgment of the court that does not involve a cause of action in the usual sense of the word, six conditions must be present before there can be a declaratory order. These are:
(1) There must exist a controversy between the parties.
(2) The proceedings must involve a “right.”
(3) The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order, which is usually referred to as “standing” or “locus standi.”
(4) The controversy must be subject to the court’s jurisdiction.
(5) The defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claims.
(6) The issue must be ripe – that is, it must not be of academic interest, hypothetical or one whose resolution would be of no practical utility.
(See Caxton (Kelang) Sdn Bhd v Susan Joan Labrooy & Anor [1988])
Accordingly, when an incumbent Member of Parliament sought, among others, declarations that the prime minister’s request to the Yang di-Pertuan Agong for Parliament’s dissolution was null and void as it was not made based on the Cabinet’s advice or Cabinet’s general authority, and that the Parliament’s dissolution was not in line with the Federal Constitution’s provisions and was of no legal effect, the six conditions above must be met.
When the dissolution of a legislative assembly – Parliament or state legislative assembly – is a non-justiciable subject and consequently cannot be subject to the court’s jurisdiction or not amenable to judicial review, the fourth element above is not met.
Therefore, the plaintiff’s action can be struck out on the application of the defendant.
*This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.
