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2025 MarsdenLR 1897
HIGH COURT MALAYA KUALA LUMPUR
MUHAMMED YUSOFF RAWTHER – Appellant
Versus
DATO SERI ANWAR IBRAHIM – Respondent
[Civil Suit No: WA-22NCvC-491-07-2021]
A sitting Prime Minister does not possess constitutional immunity from civil suits for pre-office conduct, and the application for referral to the Federal Court was deemed speculative and unnecessary.
Headnote:(A) Federal Constitution - Articles 5, 8, 39, 40, and 43 - Courts of Judicature Act 1964 - Section 84 - Defendant sought to refer constitutional questions regarding the immunity of a sitting Prime Minister from civil litigation due to pre-office conduct and to stay the trial pending such determination. (Paras 1-5)
(B) Constitutional Immunity - No express constitutional immunity exists for a sitting Prime Minister in respect of civil claims arising from pre-office conduct. The interpretation of arts 5, 8, 39, 40, and 43 does not support claims of immunity or require judicial referral, as the questions posed lack substance and do not materially affect the ongoing tort claim. (Paras 6-46)
(C) Trial - Court acknowledged the absence of compelling evidence that the trial would impair executive functions; hence, it is appropriate to proceed with the trial as scheduled. (Paras 44-46)
Facts of the case:
Defendant, facing a civil lawsuit for actions prior to being Prime Minister, sought a reference for immunity claims based on constitutional articles. The trial is set for June 2025.
Findings of Court:
The court found no genuine constitutional issues justifying a referral, as the questions were deemed speculative and did not meet necessary legal thresholds.
Issues: The main issue was whether a sitting Prime Minister possesses immunity from civil suits for pre-office conduct, which the court determined has no constitutional basis.
Ratio Decidendi: The court ruled that the constitutional articles cited do not provide grounds for immunity or merit referral, emphasizing that civil litigation should proceed without unnecessary constitutional challenges.
Result: Application dismissed; trial to proceed on June 16, 2025.
| Table of Content |
|---|
| 1. trial scheduled; application for constitutional questions. (Para 1 , 2 , 3) |
| 2. defendant's arguments for constitutional immunity. (Para 4 , 5) |
| 3. court's assessment of constitutional provisions. (Para 6 , 7 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 19 , 20 , 21 , 22 , 23) |
| 4. doctrine of 'constructive harm' analyzed. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31) |
| 5. court's jurisdiction clarified. (Para 32 , 33 , 34 , 35) |
| 6. conclusion on constitutional question relevancy. (Para 36 , 37 , 38 , 39 , 40) |
| 7. application dismissed; costs awarded. (Para 45) |
[1] The trial for this case is fixed for 16 June 2025. By way of encl 145 filed on 23 May 2025, the Defendant seeks to:
(a) Refer constitutional questions to the Federal Court listed in Appendix A − touching on whether a sitting Prime Minister enjoys certain immunities or protections from civil litigation relating to pre-office conduct − under O 92(4) Rules of Court 2012 (RoC) and/or art 128(2) of our Federal Constitution and/or s 84 of the Courts of Judicature Act 1964 (CJA); and
(b) Stay the trial that is fixed to commence on 16 June 2025 pending the Federal Court's determination of those constitutional questions.
[2] The application is advanced notwithstanding the Defendant's express position, through his counsel at the oral arguments, that he is ready and willing to proceed with trial. It is apparent, as submitted by the Defendant's counsel, that this application is largely exploratory in nature, filed at the instance of newly appointed solicitors to test whether the Federal Constitution accords the Prime Minister any form of procedural immunity or protection from civil liability while in office. The Defendant does not assert that the suit impairs his ability to perform his constitutional functions, nor has he produced any evidence to that effect.
[3] The Defendant's application arises in the context of a civil action instituted by the Plaintiff against him in his personal capacity, alleging sexual assault and trespass to the person said to have been committed on 2 October 2018. This case was filed at the High Court in July 2021, prior to the Defendant's appointment as the Prime Minister in November 2022.
[4] It was submitted for the Defendant that the continuation of these proceedings engages constitutional issues concerning the interpretation and effect of arts 5, 8, 39, 40, and 43 of our Federal Constitution . It was further suggested that a sitting Prime Minister should be insulated from the burdens of civil litigation and that this Court ought to refer these issues for the determination of the Federal Court pursuant to art 128(2) of our .
[5] 8 questions were authored in the Defendant's application for referral to the Federal Court. The grounds cited by the Defendant said to be critical constitutional issues are:
(a) Article 5(1) of our Federal Constitution − Right to Life and Personal Liberty.
It was contended for the Defendant that being subjected to a civil trial while holding the office of Prime Minister infringes his liberty interests under art 5(1), on the basis that it imposes undue burden and distraction from the discharge of executive functions. (Framed in Questions 5 and 8);
(b) Article 8(1) of our Federal Constitution − Equality before the Law.
It was submitted that the Defendant is being selectively exposed to litigation in a manner that violates the principle of equal protection, implying that the Prime Minister should receive distinct treatment under the law. (Framed in Questions 2 and 6);
(c) Articles 39, 40, and 43 of our Federal Constitution − Executive Authority, Yang di-Pertuan Agong to act on advice, and Cabinet.
It was argued for the Defendant that these provisions collectively vest the executive authority of the Federation in the Yang di-Pertuan Agong acting on Cabinet advice, with the Prime Minister at its helm, and that subjecting the Prime Minister to civil litigation while in office undermines or disrupts this constitutional
