PAS president Hadi succeeds in striking out two Sabahans’ lawsuit that wanted courts to declare him unfit for govt posts

(MMO) – PAS president Datuk Seri Abdul Hadi Awang today succeeded in his application to have the courts strike out a lawsuit by two Sabahans who had sought to declare him as unfit for any government posts over his alleged seditious remark in 2016.

High Court judge Datuk Akhtar Tahir today allowed Hadi to strike out the lawsuit, ruling among other things that the court case was frivolous and an abuse of court process, and that the two Sabahans did not have locus standi or legal standing to file the case.

The judge also ordered the two Sabahans to pay costs of RM50,000 each to Hadi, following the striking out of the lawsuit.

On December 9, 2020, two Christian Sabahan men — Maklin Masiau and Lawrence Jomiji Kinsil @ Maximilhian — filed the lawsuit against Hadi, asserting that it was a public interest case.

In their lawsuit filed via an originating summons, the two Sabahans claimed that Hadi had made a seditious statement in PAS newspaper Harakah against Christians and Christian missionaries on January 18, 2016.

They said they had filed the lawsuit as the public prosecutor had not charged Hadi for these remarks after four years.

In the lawsuit, the two men were seeking for two specific court orders, namely a declaration that Hadi had committed a seditious act that was in breach of Section 3 of the Sedition Act and a declaration that Hadi is not fit to hold any position in the Malaysian government, including a position equivalent to a ministerial position.

On April 12, 2020, Hadi was appointed as the prime minister’s special envoy to the Middle East, which is a position that carries a status equivalent to a minister.

Hadi had on January 28 this year filed an application to strike out the lawsuit on grounds such as the court case allegedly being frivolous and an abuse of court process and disclosing no reasonable cause of action.

The High Court had on April 19 heard the striking out application before delivering its decision today.

Why the judge struck out the lawsuit

In his brief grounds of his decision to strike out the lawsuit, the High Court judge today said he disagreed with the two Sabahans’ preliminary objection to Hadi’s striking out bid.

The judge noted that the two Sabahans had claimed that Hadi should not be allowed to proceed with his striking out application, as the duo claimed that Hadi had allegedly committed contempt of court by allegedly defaming the court and judges in his Facebook posting.

“The court rules that this preliminary objection is misconceived as on reading the post, it is clear although the defendant is critical of certain court decisions, his remark is aimed at NGOs and like bodies, and not judges,” the judge said.

Before diving into the substantive grounds on why he was striking out the case, the judge also made some ruling on preliminary matters.

The judge noted that the Rules of Court 2012 should not be taken as mere “decorative pieces” but that the procedures inside need to be complied with.

The judge added that the two Sabahans had failed to cite the specific rules of the Rules of Court that the lawsuit was filed under which he said was a “non-compliance” with the mandatory provisions of the Rules of Court, and that they had not stated the specific provision of the Sedition Act aside from stating Section 3 of the Sedition Act.

Another preliminary point which the judge made was that he disagreed that the lawsuit was a public interest matter.

“Although the originating summons says this is a public interest litigation, it does not become a public interest litigation merely because a public figure is involved. The subject matter in this case is a remark made four or five years before in 2016, so how can it be public interest six years later, five years later? I don’t see any element of public interest in this whole originating summons,” the judge said.

Another preliminary point addressed by the judge was that the court should be given primary documents instead of secondary documents, noting that the primary document was Hadi’s statement in Harakah and which was reproduced in a Free Malaysia Today report.

“In this case, the copy of the Harakah was not produced before the court,” the judge said, indicating that it was not enough for the two Sabahans to make a simple statement that they could not obtain a copy of the Harakah paper after making all efforts to do so.

The judge said the two Sabahans could have applied to the court to seek to obtain a copy of the Harakah paper which he believed would still be available.

The judge noted that it would be “fraught with danger” for the High Court to deal with the case based on the reproduction in another publication, noting that it would not be known what was the actual article and what was said in the actual article. He pointed out that the reproduction in Free Malaysia Today was in English and it was not clear whether the original article was in English or another language.

The judge then went into the substantive matters in the striking out application, including deciding that the two Sabahans did not have locus standi or legal standing to file the lawsuit against Hadi.

The judge said that the gist of reproduced article would only be against Christian missionaries ― whom Hadi had claimed had used money to convert people, ruling that there was nothing in Hadi’s remarks in the article that was against the religion of Christianity, saying: “Nothing about Christian religion”.

The judge also said the two Sabahans did not in court documents say they were Christian missionaries, adding: “They just say they are Christians. This is nothing against Christians, it’s against Christian missionaries. If there’s anything offensive, it’s against Christian missionaries. On this, I rule the plaintiffs clearly have got no locus.”

The judge then examined the court orders that the two Sabahans were seeking for in the lawsuit, stressing that the separation of powers under Malaysia’s written Federal Constitution meant that the courts would not be able to make a declaration on criminal offences and about Hadi’s appointment to the government post.

“We are bound by the Federal Constitution, and in the Federal Constitution, it’s very clear demarcation of powers between the legislature, executive and judiciary. It’s clear that the determination of any criminal offences come under the ambit of the Attorney-General who is the public prosecutor, which is an extension of the executive.

“And appointment of the defendant (Hadi) also comes under the executive. As much as the executive and the legislature should not encroach into the powers of the judiciary, the judiciary cannot encroach into the powers of the executive. It serves no purpose even if I give this declaration, because it is of no value,” he said.

The judge then concluded by saying: “In short, finally, when I look at this whole originating summons, in fact if anybody is to be blamed for seditious tendencies are the plaintiffs themselves. They have resurrected the matter which was in 2016, they resurrected it to make it a new issue.”

“Therefore, I’m allowing the defendant’s application to strike out this originating summons, it is a frivolous and abuse of the process of the court,” he said.

Noting that he had already pointed out that this lawsuit is not a public interest case, the judge said the two Sabahans cannot say that no costs need to be paid by saying that this is a public interest litigation.

“In this case, in fact, looking at the matter in hand, the court should impose punitive costs, because frivolous cases can choke the justice system with unnecessary litigation,” the judge said.

“It seems the fashion nowadays to say ‘See you in court’. At one point, ‘See you in court’ was meant to scare persons, now it becomes a fashion statement,” the judge said, adding that frivolous court cases should not be allowed and then proceeded to order both Sabahans to pay RM50,000 each in costs to Hadi.

The two Sabahans were also represented today by lawyers R. Kengadharan and Marcus Lee Min Lun, while Hadi was represented today by lawyers Yusfarizal Yussoff and Adam Luqman Amdan.

When met after the decision and asked whether the two Sabahans would be appealing today’s decision, Kengadharan told reporters: “I have to take instructions from clients”.

While the High Court today ruled that his clients had no legal standing to file the lawsuit as Hadi’s remarks were on Christian missionary activities, Kengadharan argued that such activities were related activities.

Kengadharan also argued that the central issue was on the gravity of the matter rather than how long ago Hadi’s remarks were made, further saying: “Where do we seek remedy if the courts were to say it is an abuse of process and a frivolous action, where do they seek remedy? They still have to come to court.”

“They came to court because there are seditious tendencies. And an imposition of a punitive cost, we fear, may deter litigants in coming to court,” he said.

Kengadharan also said non-compliance of procedural rules should not be an issue for consideration in cases such as public interest litigation brought to court, arguing: “The rules are there created to meet the ends of justice. The rules must not be used against the litigants who are in court seeking justice, that would defeat the purpose of coming to court.”