Article 8 of Federal Constitution is shield, not sword for immunity, High Court rules

by FARAH SOLHI

ARTICLE 8(1) of the Federal Constitution, which touches on fundamental rights to equality, is a legal shield and not a sword for immunity, the High Court ruled today.

Judge Roz Mawar Rozain, in dismissing Prime Minister (PM) Datuk Seri Anwar Ibrahim’s bid to obtain the Federal Court’s determination on constitutional questions relating to immunity from being sued, said the questions of law posed were speculative and not necessary for the disposal of the case.

The questions, she added, do not concern the interpretation of validity of any constitutional provision as Anwar remains at liberty with full legal capacity.

“Articles 39, 40 and 43 (that touch on executive authority) 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.

“All those articles cited are inoperative in the context of the defendant’s application for constitutional reference.

“Furthermore, the defendant has affirmed readiness to proceed with trial and there is no evidence that the suit impairs his ability to perform constitutional duties. This court finds no special circumstances warranting a stay of proceedings,” she said.

Roz Mawar said none of the articles raised in Anwar’s application holds any real, substantial or justifiable question of constitutional law that requires determination by the Federal Court.

She added that from a judicial perspective, the proposed questions do not appear to meet the threshold of genuine constitutional controversy.

Therefore, the court will proceed to hear Mohammed Yusoff Rawther’s suit filed against Anwar involving sexual assault allegation on June 16 at 9am, as previously scheduled.

The court also dismissed oral applications by Anwar’s counsel, Allan Wong, for a proceeding postponement pending their appeal that will be filed.

Anwar had filed the application via his new counsels Messrs Zain, Megat and Murad on May 23, where he sought the High Court’s leave (permission) to have his application heard in the Federal Court.

The Tambun MP sought the Federal Court’s determination on whether the suit filed against him constituted an abuse of process or a threat to public interest, and if so, argued that it should be dismissed to “preserve constitutional governance”.

He also wanted to seek the Apex Court’s declaration to determine whether he, as the current PM, is entitled to constitutional protection under Article 5(1) of the Federal Constitution.

Apart from Wong, Anwar is also represented by counsels Datuk Seri K Rajasegaran and Datuk Megat Abdul Munir Megat Abdullah Rafaie, while Mohammed Yusoff was represented by Muhammad Rafique Rashid Ali.

Watching brief counsels for Malaysia Muslim Lawyers Association (PPMM) Mohamed Haniff Khatri Abdulla, Salim Bashir Bhaskaran and Muhammad Hisham Marzuki as well as Bar Council’s representative Vivek Sukumaran also appeared in the proceedings.

Muhammed Yusoff claims he was assaulted at Anwar’s home in Segambut, Kuala Lumpur, on Oct 2, 2018.

In his statement of claim, the 32-year-old plaintiff claimed that he was accused of plotting to taint Anwar’s reputation and political career, following his police report on the incident.

He claimed that the alleged sexual assault and accusations had affected his mental health. As such, Muhammed Yusoff is seeking general, aggravated and exemplary damages, as well as interest, costs and other relief deemed fit by the court.