KUALA LUMPUR: The High Court here today dismissed Datuk Seri Anwar Ibrahim’s application to refer eight legal questions to the Federal Court, including whether the Prime Minister enjoys immunity from lawsuits.
The legal questions relate to a lawsuit filed by Anwar’s former research assistant, Muhammed Yusoff Rawther, concerning an alleged sexual assault seven years ago.
Judge Roz Mawar Rozain made the ruling after finding that none of the articles of a Federal Constitution (FC) cited by Anwar’s legal team give rise to any real, substantial or justiciable question of constitutional law requiring determination by the Federal Court under Article 128(2) of the FC or Section 84 of Courts of Judicature Act 1964.
“From a judicial perspective, the proposed questions do not appear to meet the threshold of genuine constitutional controversy,” she said.
The Prime Minister filed the application on May 23, seeking the High Court, which is hearing the suit, to refer the eight legal questions to the Federal Court.
The eight legal questions include whether, under Articles 39, 40 and 43 of the Federal Constitution, a sitting Prime Minister enjoys limited immunity from lawsuits concerning allegations of personal conduct that occurred before his appointment.
In her brief grounds, Judge Roz Mawar said the eight proposed questions are speculative, not necessary to the disposal of this case, and do not concern the interpretation or validity of any constitutional provision.
Regarding the immunity, the judge said Articles 39, 40, and 43 on Executive Authority, which Anwar applies to refer, are structural provisions that allocate executive powers but do not confer personal immunity.
“No express or implied protection against civil liability exists. Constitutional silence on immunity must be interpreted in favour of equal legal accountability.
“The articles cited by the defendant’s legal team are inoperative in the context of his application for constitutional reference,” she said.
The judge further stated that the defendant’s contention that allowing a civil suit based on pre-appointment conduct may undermine the Prime Minister’s ability to discharge executive functions is flawed.
She explained that this was because no immunity is implied in Article 43 as the provision deals solely with tenure and does not prescribe or imply immunity from judicial proceedings.
The judge said no clause in Article 43 shields a sitting Prime Minister from accountability in respect of private acts committed prior to assuming office.
“One, no immunity is implied in Article 43; the provision deals solely with appointments and tenure and does not prescribe or imply immunity from judicial proceedings,” she said.
Judge Roz Mawar said furthermore, the defendant (Anwar) has affirmed readiness to proceed with trial, and there is no evidence that the suit impairs his ability to perform constitutional duties and this court finds no special circumstances warranting a stay of proceedings.
The court also dismissed Anwar’s application to stay the hearing of the suit and ordered the trial to commence on June 16 as fixed earlier.
She then ordered the defendant to pay the costs of RM20,000 to the plaintiff (Muhammed Yusoff).
Lawyer Datuk Seri K.Raja Segaran, Datuk Megat Abdul Munir Megat Abdullah Rafaie, Alan Wong Teck Wei representing Anwar, while lawyer Muhammad Rafique Rashid Ali, Nurmustanir Md Nor and Muhammad Amirul Ar-Rasyid Azman acting for Muhammed Yusoff.
According to a supporting affidavit for the application, Megat Abdul Munir, who is authorised to represent the defendant, said that if the suit were to proceed, it would affect Anwar’s ability to effectively perform his executive functions and undermine the doctrine of separation of powers enshrined in the Constitution.
“The plaintiff’s claim is politically motivated and, if not examined constitutionally at an early stage, could erode public confidence, diminish the dignity of the constitutional office, and disrupt the executive’s ability to perform its constitutional duties,” Megat Abdul Munir said in the affidavit.
Megat Abdul Munir further stated that if the court intends to refer these constitutional questions to the Federal Court as a special case, it would be appropriate for the suit’s proceedings to be stayed pending the Federal Court’s determination of these questions.
Muhammed Yusoff filed the suit on July 14, 2021, and Anwar, in his statement of defence, contended that Muhammed Yusoff had lied under oath to the authorities regarding the alleged sexual assault incident.
The PKR president, who filed a counterclaim on Sept 28, 2021, alleged that Muhammed Yusoff had fabricated the story about the sexual assault to tarnish his political career and prevent him from becoming prime minister.
Meanwhile, Raja Segaran told a press conference said they respectfully disagreed with the outcome of today’s outcome and will be filing an immediate appeal to the Court of Appeal.
“We will also be applying for a stay of trial proceedings to preserve the integrity of the appeal process and ensure that the defendant is not prematurely subjected to proceedings that may ultimately be held to be constitutionally impermissible,” he said.
