Waytha Moorthy A/L Ponnusamy v Dato' Seri Anwar Bin Ibrahim (WA-24-130-08/2025)

By way of an Originating Summons filed on 29.8.2025, the Plaintiff seeks the following reliefs:

A declaration that the disqualification of the above-named Defendant, Dato’ Seri Anwar bin Ibrahim from being a member of Dewan Rakyat was not removed by His Majesty the Yang di-Pertuan Agong pursuant to Article 48(1)(e) and

A declaration that accordingly the election of Dato’ Seri Anwar bin Ibrahim as Member of Parliament for the Tambun constituency in the 15th General Election is unconstitutional, null and void;

A declaration that accordingly, the appointment of Dato’ Seri Anwar bin Ibrahim as Prime Minister on 24 November 2022 is unconstitutional, null and void;

An order that in consequence the Defendant ceases with immediate effect acting as:

a member of Parliament for Tambun; and

(ii) Prime Minister.

Subsequent to the suit filed, the Defendant files this application under O.18 r 19 to strike out the Plaintiff’s suit, relying on paragraphs (a), (b) and/or (d) of the Rules of Court 2012. In addition, the Defendant also relies on O. 92 r. 4 of the same Rules. Background facts

The suit by the Plaintiff must be considered in the context of these material facts which are not disputed and in the public domain.

On 5.11.2022, the Defendant’s nomination to contest as a candidate for the Tambun constituency in the 15th General Election (“GE 15”) was accepted by the Returning Officer.

On 20.11.2022, the Defendant was declared as the duly returned candidate for the Tambun constituency. The results were gazetted on 14.12.2022.

On 24.11.2022, the Defendant was appointed the 10th Prime Minister of Malaysia. The Plaintiff’s suit

The Plaintiff’s suit for the declarations sought is premised solely on the fact that the Defendant having been previously convicted and sentenced to imprisonment for a period of more than one year, was disqualified from being a member of Parliament under Article 48

(1)(e) of the Federal Constitution. Although he was pardoned on 16.5.2018 by the Yang di-Pertuan Agong pursuant to Article 42, the Plaintiff contends that the pardon did not remove his disqualification. The Defendant’s striking out application

The Defendant has advanced four grounds to strike out the suit against him. Firstly, the Plaintiff’s suit is essentially seeking to question an election which he is precluded from doing except by way of an election petition. Secondly, the challenge to an election must be brought before an Election Judge as provided for under section 33 of the Election Offences Act 1954. Thirdly, the Plaintiff lacks the requisite locus standi to bring an action to challenge or question the result of an election as required under section 34 of the Election Offences Act 1954. Fourthly, the Plaintiff’s suit was commenced outside the mandatory time frame for filing an Election Petition as required under 38 of the Election Offences Act 1954. Finally, the Plaintiff’s suit was commenced for an improper and/or collateral purpose, including to obtain political mileage, preserve political relevance, and/or to harass the Defendant.

By relying on paragraphs (a), (b) and/or (d) of the Rules of Court 2012, the Defendant contends that the Plaintiff’s suit discloses no reasonable cause of action, is scandalous, frivolous and vexatious and an abuse of the process of the court. Analysis and findings of this court Key principles

The law on striking out of pleadings is trite. This power is exercised to avoid the unnecessary time and expense of a trial. However, the courts have recognized that as this is a summary power, it is only to be exercised in plain and obvious cases and where the claim is obviously unsustainable. This established principle has been restated in many cases. (See: Bandar Builders Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36; Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 1 CLJ 1).

Where the Defendant relies on paragraph (a) of O.18 r.19(1), then the court is obliged to examine the pleadings of the Plaintiff to determine if a cause of action is disclosed. In Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 1 CLJ 207, at 219-220, Jeffrey Tan FCJ had explained a “cause of action” as follows – “[12] In Letang v. Cooper [1965] 1 QB 232, 242-3, Lord Diplock defined a ‘cause of action’ as “a factual situation the existence of which entitled one person to obtain from the court a remedy against another”, which definition was adopted in Hock Hua Bank Bhd v. Leong Yew Chin [1987] 1 CLJ 126; [1987] CLJ (Rep) 126; [1987] 1 MLJ 230, where Abdul Hamid Ag LP, as he then was, appended that “there must be a cause of action before a plaintiff can claim a relief in an action”. In Government of Malaysia v. Lim Kit Siang & Another Case [1988] 1 CLJ 219; [1988] 1 CLJ (Rep) 63;; [1988] 2 MLJ 12, 19, the Supreme Court per Salleh Abbas CJ, expounded that to make up ‘a cause of action’, first, the plaintiff has a right at law or by statute and secondly, the right has been affected by the act of the defendant: A cause of action’ is a statement of facts alleging that a plaintiff’s right, either at law or by statute, has, in some way or another, been adversely affected or prejudiced by the act of a defendant in an action. Lord Diplock in Letang v. Cooper [1965] 1 QB 232 at p 242 defined ‘a cause of action’ to mean ‘a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person’. In my view the factual situation spoken of by Lord Diplock must consist of a statement alleging that, first, the respondent/plaintiff has a right either at law or by statute and that, secondly, such right has been affected or prejudiced by the appellant/defendant’s act.

In Tan Wei Hong (a child suing through his guardian ad litem and next friend, Chuang Yin E) & Ors v Malaysia Airlines System Bhd & Ors [2017] 4 MLJ 540, the Court of Appeal held that a pleading is said to be frivolous when it lacks legal merit or merit and vexatious when the lawsuit is instituted maliciously and without good grounds, meant to create trouble and expense for the party being sued.

As for ground of abuse of the process of the court, the Court of Appeal held that the term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent an improper use of its machinery and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.

It leaves me now to consider if the Plaintiff’s suit falls within any of the paragraphs relied on in O.18 r.19(1), and for the reasons advanced by the Defendant. This calls for a scrutiny of the pleaded case of the Plaintiff. In this case, the reliefs sought for are critical to the determination of this court.

To recapitulate, relief (a) is for a declaration that the disqualification of the Defendant from being a member of the Dewan Rakyat was not removed by His Majesty the Yang di-Pertuan Agong pursuant to Article 48(1)(e) and Article 48(3) of the Federal Constitution.

However, the relief in (a) does not stand on its own, and cannot be viewed in isolation. The materiality of relief (a) is in the subsequent relief sought in prayer (b). The Plaintiff contends that as a result of the disqualification which has not been removed, the election of the Defendant on 19.11.2022 as a Member of Parliament for the Tambun constituency in GE-15 is unconstitutional, null and void. He then seeks a declaration in prayer (b) to that effect. To my mind,

is the principal relief in the Plaintiff’s suit.

Relief (b) is to impugn the result of an election by which the Defendant was elected a Member of Parliament for Tambun. This court has no jurisdiction to entertain such a suit. A challenge to an election can only be made by way of an election petition.

The provisions of Article 118 of FC cannot be any clearer as follows: Method of challenging election

No election to the House of Representatives or to the Legislative Assembly of a State shall be called in question except by an election petition presented to the High Court having jurisdiction where the election was held.

This point has been well settled from as far back as the case of Tengku Korish v Muhamad bin Jusoh & Anor [1970] 1 MLJ 6 where Raja Azlan Shah (J, as he then was) held: It is well recognised that I must not go outside the province of the election law. The Election Offences Act, 1954 confers certain rights and provides a remedy for enforcing those rights. Where that is the case, the remedy provided by that statute only must be availed of. Wills J. stated this rule with great clarity in Wolverhampton New Waterworks Company v Hawkesford [1970] 1 MLJ 6 at 76 CB (NS) 336; 141 ER 486 495 in the following passage:– “There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it…. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.” The present cases falls within the latter class.

Subsequent decisions have referred to Tengku Korish as authoritative on that point. I need only cite a few.

In Dr. Lee Chong Meng v Abdul Rahman bin Hj Abdullah, Returning Officer & Ors [2000] 6 MLJ 98 Augustine Paul (J as he then was) held, As the jurisdiction of the court to hear election petitions is not conferred by the Courts of Judicature Act 1964 but by art 118 of the Federal Constitution what merits immediate consideration is the manner of exercising the jurisdiction. It has been accepted that, strictly speaking, it is the sole right of the legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it (see Ponnuswami v Returning Officer, Namakkal Constituency AIR [1952] SCR 218). Therefore, the statutory requirements of an election must be strictly observed because an election dispute is a statutory proceeding unknown to the common law or equity (see Harcharan Singh v Mohinder Singh AIR 1968 SC 1500). (See also: Muhammad Sanusi bin Md Nor v Mohd Tajuddin bin Abdullah & Ors [2008] MLJU 570 (Federal Court).

As the legislature has provided for a special mode to hear challenges to election of candidates, that mode must be resorted to and no other. This court hearing the Originating Summons filed by the Plaintiff is not an election court nor is the mode of challenge that of an election petition. Section 33(1) of the Election Offences Act 1954 makes provision for an election petition to be tried by an election judge which under the said Act is defined as a judge of the High Court nominated by the Chief Judge to try an election petition.

Further, by seeking relief (a), the Plaintiff is proceeding on the presupposition that the Defendant was in fact disqualified from election. By virtue of this disqualification which had not been removed, and premised on Articles 48(1)(e) and Article 48(3) of the Federal Constitution he was ineligible to stand for election at the material time. His election was therefore null and void.

The Plaintiff is wholly misconceived in the course taken. The question whether the Defendant was, at the time of his election disqualified for election, is a matter for challenge by way of an election petition. The issue falls squarely within the ambit of the provisions of section 32 (e) of the Election Offences Act 1954 which provides as follows: Avoidance of election on election petition

The election of a candidate at any election shall be declared to be void on an election petition on any of the following grounds only which may be proved to the satisfaction of the Election Judge:

that general bribery, general treating or general intimidation have so extensively prevailed that they may be reasonably supposed to have affected the result of the election;

non-compliance with the provisions of any written law relating to the conduct of any election if it appears that the election was not conducted in accordance with the principles laid down in such written law and that such non-compliance affected the result of the election;

that a corrupt practice or illegal practice was committed in connection with the election by the candidate or with his knowledge or consent, or by any agent of the candidate;

that the candidate personally engaged a person as his election agent, or as a canvasser or agent, knowing that such person had within seven years previous to such engagement been convicted or found guilty of a corrupt practice by a Sessions Court, or by the report of an Election

that the candidate was at the time of his election a person disqualified for election.

Thus, any attempt to have an election declared void which is premised on the alleged disqualification of a candidate must be commenced by way of an election petition. The Originating Summons filed in the instant case is not the proper mode.

The Plaintiff on the other hand, contends that the true nature of the controversy before this court which seeks the relief in (a) has no nexus to questioning the results of an election. In response to the Plaintiff’s contention, the Defendant cites the case of Parti Islam Se-Malaysia & Ors v Tan Sri Dato' Seri Abdul Aziz bin Mohd Yusof & Ors. [2015] 4 MLJ 439.

In that case, the Plaintiffs brought a suit founded on the complaint of abuse or misuse of indelible ink by the Elections Commission (i.e the defendants) which resulted in multiple voting on a substantial scale, which in turn caused about 43 parliamentary seats to be fraudulently counted to the detriment of the Plaintiffs. The Plaintiffs sought declarations that the Defendants failed in their constitutional duty and obligation to properly conduct GE 13 and they had maliciously and dishonestly practised fraud on the electorate by the misuse of indelible ink for voting purposes. Apart from the two declarations, the Plaintiffs wanted the entire results of the GE 13 for all parliamentary seats to be declared, and set aside, as null and void. The Defendants filed an application to strike out the suit. The application was allowed by the High Court. On appeal. The Court of Appeal had no hesitation in affirming the decision of the High Court. It held: [34] On this issue we are in complete agreement with the learned judge's finding that the purpose and the pith and substance of the plaintiff's claim is to seek an order to declare the 13th GE as null and void. The alleged breach of constitutional duty and obligation of the Elections Commission or the defendants and the alleged use of the indelible ink merely provide the basis or the foundation that will be relied upon by the plaintiffs for asking such an order. … [40] The issue before us is essentially one of jurisdiction, that is whether the High Court has the jurisdiction to quash an election petition by way of a writ action where a breach of constitutional duty and fundamental liberties is alleged against the Elections Commission (ie the defendants) and fraud, deceit, conspiracy and misfeasance by a public officer is alleged. [41] In our view it is unequivocally clear from the language of art 118 of the Constitution, that in Malaysia an election can only be questioned by an election judge trying an election petition. As submitted by learned senior federal counsel (SFC') art 118 is couched in imperative and absolute terms' (see para 23 of this judgment). [42] The effect of the aforesaid provision is that the High Court is excluded from exercising any jurisdiction over all matters that call into question an election be it to the House of Representative or to the State Assembly. [43] Based on s 32 read together with s 33(1) of the Elections Offences Act 1954 (the law pertaining to election petition) an election petition is to be tried by an election judge which under the said Act is defined as a judge of the High Court nominated by the Chief Judge to try an election petition. [44] The Supreme Court in Election Commission, Malaysia v Abdul Fatah bin Haji Haron [1987] 2 MLJ 716 stated in no uncertain terms that: Any dissatisfaction with or challenge to an election should be brought by way of an election petition before an election judge and nowhere else. [45] The plaintiffs sought to argue that their pleaded causes of action, inter alia, breaches of the Constitution, fraud, deceit, conspiracy and misfeasance by [2015] 4 MLJ 439 at 455 a public officer cannot be the subject matter of an election petition as the latter is limited in its scope both as to the causes of action and the remedies available. … [47] The plaintiffs, vide their civil suit is in effect calling into question or rather challenging the results of the GE13. The plaintiffs' claim therefore falls squarely within the scope of art 118 and as such can only be brought by way of an election petition to be heard by an election judge and not by way of a civil suit to be adjudicated upon by a judge in the exercise of his or her ordinary civil jurisdiction. [48] We agree with the learned SFC that the mere pleading of the causes of action cannot purport to confer jurisdiction on the High Court as the effect of these causes of action and the reliefs sought is to call into question the elections (ie GE13) which by virtue of art 118 is vested solely with the election court. Any attempt to confer jurisdiction on the High Court by pleading such causes of action would amount to a violation of art 118. (See also: Jamil Dzulkarnain v Mohamad Kamil Shafie [2014] MLJU 1916)

Regardless of how relief (a) has been couched, the inevitable conclusion is that the Plaintiff is ultimately seeking to avoid the result of the election for the Tambun constituency. The Plaintiff’s intention is clear from the terms of the declaration sought for in relief (b).

In addition, relief (b) is one which can only be sought in an election petition, as provided for in section 35 of the Election Offences Act, 1954 as follows: Relief which may be claimed

All or any of the following reliefs to which the petitioner may be entitled may be claimed in an election petition:

a declaration that the election is void;

a declaration that the person was not duly elected or ought not to have been returned;

(Deleted by Act A1177);

where the seat is claimed for an unsuccessful candidate on the ground that he had a majority of lawful votes, a scrutiny.

The Plaintiff’s relief therefore falls within the remit of the Election Offences Act. The legislature has enacted a special law to confer jurisdiction on an election court to hear a challenge to an election. The remedy and recourse are to be had by way of an election petition only.

To reiterate, this court has no jurisdiction to grant the principal relief that the election of the Defendant as the Member of Parliament for Tambun is null and void. It therefore follows that the Plaintiff’s suit commenced by way of an Originating Summons discloses no reasonable cause of action.

As it is devoid of any legal basis for the reliefs claimed, I also consider it to be both frivolous and vexatious. Finally, as the legal position on avoiding an election is trite and well established law, I cannot but consider the Plaintiff’s suit to be abuse of the process of the court.

In view of my findings, I find it unnecessary to deal with the other ground advanced by the Defendant that the Originating Summons was commenced for improper and/or collateral purposes. In any event, such matters cannot be dealt with in a striking out application as it would invariably involve dispute of facts.

Premised on the foregoing reasons, the Defendant therefore succeeds in establishing a case for the Plaintiff’s suit to be struck out under O.18 r. 19(1) (a), (b) and (d) of the Rules of Court 2012. The Originating Summons filed by the Plaintiff is obviously unsustainable and unarguable.

It would be pointless to allow the Plaintiff’s suit to proceed further when it has no prospect of success. In the result, the application in enclosure 14 filed by the Defendant is allowed, and the Originating Summons filed is struck out.

I also order that costs of RM 80.000.00 be paid by the Plaintiff subject to allocator. Dated: 20th April 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Plaintiff: En. Karthigesan Shanmugan En. Waytha Moorthy a/l Ponnusamy (acting in person (En. Rafique Rashid and Pn. AR Thamayanthy together with him) Tetuan Karthig Shan Counsel for Defendant: En. En. Ranjit Singh (En. Daniel Albert and En. Nicholas Yap together with him) Tetuan Daniel & Wong Amicus curaie: En. Mohd Sallehuddin Md Ali (Peguam Kanan Persekutuan,