Nobody is above the law, says High Court

Malaysian Reserve

2 days ago

Anwar filed his application on May 23, asking whether a sitting PM has limited immunity from civil lawsuits under Articles 39, 40 and 43 of the Federal Constitution
by FARAH SOLHI
THE Kuala Lumpur (KL) High Court's dismissal of Prime Minister (PM) Datuk Seri Anwar Ibrahim's application to refer a constitutional question to the Federal Court — specifically on procedural immunity from civil liabilities — strongly affirms that no one is above the law.
Judge Roz Mawar Rozain ruled that Anwar's claim of being deprived of personal liberty, based on the assertion that the suit filed against him was vexatious and politically motivated, is untenable.
In delivering her brief judgement on June 4, the judge held that none of the Federal Constitution articles cited in Anwar's application gave rise to any real, substantial or justiciable constitutional questions.
Roz Mawar said Anwar had not demonstrated that he is being denied legal protection afforded to others, or that any legal provisions operate unequally against him.
'The questions posed are speculative (and) not necessary for the disposal of this case, nor do they concern the interpretation or validity of any constitutional provision.
'From a judicial perspective, the proposed questions do not appear to meet the threshold of genuine constitutional controversy,' she said, while also awarded former research assistant Mohammed Yusoff Rawther RM20,000 in costs.
Anwar also questions whether courts are constitutionally required to protect public officials from lawsuits when no crime is proven (pic: Media Mulia)
Roz Mawar further ruled that constitutional supremacy demands all persons, including public office holders, be equally subject to the rule of law, and that not every question touching or quoting the Federal Constitution warrants referral, as the Federal Court is not a forum for speculative advisory opinions.
She added that Anwar's affirmed readiness to proceed with the trial, as submitted by his counsels during the application hear- ing on June 3, indicated no evidence that the suit impairs his ability to perform his constitutional duties.
The trial will proceed as scheduled on June 16, as the court found no special circumstances warranting a postponement.
Constitutional Questions Raised in Anwar's Application
Anwar filed his application on May 23, questioning whether a sitting PM has qualified immunity from civil suits under Articles 39, 40 and 43 of the Federal Constitution.
This pertains to alleged private acts committed prior to his appointment, where the continuation of such litigation, he argued, would impair the effective discharge of his executive functions and undermine the constitutional separation of powers.
Anwar also questioned whether the High Court's decision to allow the civil suit, based on private allegations but pursued in a political context, would violate the constitutional guarantee of equality before the law under Article 8(1) which relates to the fundamental rights to equal treatment.
Anwar also questioned, under Article 5(1), whether a sitting PM should be protected from lawsuits that are politically motivated or poorly timed, particularly if they relate to actions taken before assuming office, lack clear legal merit, but could damage reputation and hinder the ability to govern.
He further raised the issue of whether courts are constitutionally required to shield public officials from such lawsuits when no crime has been proven.
In response, Roz Mawar said Article 5(1) does not extend to mere inconvenience, reputational risks or constitutional burden arising from civil proceedings, noting that Anwar's rights were not violated as he remains at liberty, with no restrictions on his movement or legal capacity.
'The act requiring a defendant to respond to a claim, however politically sensitive, does not implicate Article 5(1), and no precedent has extended its ambit to encompass exposure to civil litigation,' she said.
She also found Anwar's questions regarding Article 8(1) to be without merit, saying that the provision serves as a shield, not a sword for immunity, it guarantees equal legal treatment, not exemption from the law, as established in precedent cases.
'The defendant has not shown any discriminatory conduct by the courts or the law. The plaintiff's (Yusoff Rawther's) suit was filed under the same procedural and substantive law applicable to all Malaysians and foreigners alike in this country,' she added.
Roz Mawar said while Article 39, which pertains to executive authority, is a structural allocation of powers and does not confer any personal immunity on the PM or Cabinet ministers. It does not suggest, either expressly or implicitly, that executive authority includes protection against personal civil liability.
She also said Anwar's arguments contending Article 43 were flawed, as no immunity is implied under the said article.
This provision, she added, pertains solely to appointments and tenure, and does not prescribe or imply immunity from judicial proceedings.
'No clause in Article 43 shields a sitting PM from accountability for private acts committed prior to assuming office,' she said, adding that constitutional silence does not equate to immunity.
The judge also said that the mind map produced by Anwar's legal team, intended to illustrate their theory of constructive harm to the office, has no textual or jurisprudential basis, nor does any provision in the Constitution imply immunity for the PM from civil litigation.
'The defendant's legal team could not clearly anchor this proposed doctrine to any particular article or legal test. The argument, at best, may be rooted in policy concerns rather than constitutional law,' she said.
While Article 39, which pertains to executive authority, is a structural allocation of powers, it does not confer any personal immunity on the PM or Cabinet ministers
Is Seeking Immunity a Violation of Constitutional Rights?
Senior lawyer Datuk Seri Rajan Navaratnam said every individual, including the sitting PM, who feels aggrieved is entitled to approach the courts for determination of a subject matter.
However, there are certain limitations to matters raised, as courts are bound by precedent decisions and administration of justice is subject to specific rules and procedures.
'It is for the courts to determine whether such an action (of raising legal questions) has merit or otherwise.
'Article 8 of the Constitution states that all persons are equal before the law and are entitled to equal protection of the law. In other words, no one is above or exempt from the legal framework,' he told The Malaysian Reserve (TMR).
However, the Constitution does not afford immunity from court proceedings to any individual, except under Article 183, which provides that no action can be initiated against the Yang diPertuan Agong or a State Ruler without the consent of the Attorney General (AG).
Therefore, it can be said that even Article 183 does not provide absolute immunity, as the discretion lies with the AG.
Meanwhile, senior lawyer Datuk Seri Dr Jahabardeen Mohamed Yunoos, affirming Rajan's view, said there are various legal mechanisms in place to weed out frivolous suits and those that attempt to abuse the judicial process.
He noted that the law does accord certain forms of immunity, but these are limited — primarily to judges or individuals acting in a judicial capacity, as stipulated under Section 14 of the Courts of Judicature Act 1964.
This provision states that judges and others performing judicial functions cannot be sued for actions taken in the course of their duties, even if those actions exceeded
their authority, provided they genuinely believed they had such authority at the time.
Yusoff Rawther (centre) is currently under police detention after being charged under Section 39B(1)(a) of the Dangerous Drugs Act 1952 for allegedly trafficking 305g of cannabis
What's Next?
Anwar's counsel, Datuk Seri K Rajasegaran told TMR on June 5 that they have filed a notice of appeal to the Appellate Court immediately following the High Court's decision.
However, he confirmed that his team is still awaiting a date or case management notice from the Appellate Court. He added that they will file a notice of urgency together with an application to stay (postpone) the High Court's proceedings.
Pending any decision by the higher courts, the High Court will proceed with the matter, following Roz Mawar's dismissal of Rajasegaran's oral application for postponement on June 4.
Yusoff Rawther filed a suit against Anwar in July 2021, claiming he was sexually assaulted by the latter on Oct 2, 2018, at Anwar's residence.
He made a statutory declaration and lodged a police report regarding the incident in 2019. However, he was later accused of attempting to damage the PM's political career and reputation through the police report.
The plaintiff, who was Anwar's research assistant, stated in his affidavits that the allegations had affected his mental health. He is seeking general, aggravated and exemplary damages, along with interest, costs and other relief the court deems appropriate.
Yusoff Rawther is currently under police detention after being charged under Section 39B(1)(a) of the Dangerous Drugs Act 1952 for allegedly trafficking 305g of cannabis found in his vehicle near the mosque at the police contingent headquarters on Sept 6, 2024.
He was also charged under Section 36(1) of the Firearms Act 1960 for possession of two imitation firearms. The High Court is scheduled to deliver its decision at the end of the prosecution case on his charges on June 12.
This article first appeared in The Malaysian Reserve weekly print edition