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Friday decision on Nizar vs Zambry case

KUALA LUMPUR, 3 March 2009: The High Court will decide on Friday whether or not to refer to the Federal Court the action brought by Datuk Seri Mohammad Nizar Jamaluddin to challenge the legitimacy of Datuk Dr Zambry Abdul Kadir’s appointment as Perak Menteri Besar.

Justice Lau Bee Lan fixed the date after hearing submissions from Nizar’s counsel, Sulaiman Abdullah, and senior federal counsel Datuk Kamaluddin Md Said on whether the case should be referred to the apex court for determination of constitutional issues or for the High Court to deal with the leave application.

Kamaluddin argued that the court should direct that the case be brought straight to the Federal Court without first dealing with the leave application for judicial review because there was a constitutional law conflict between Nizar and Zambry as to who was the rightful Perak menteri besar.

He said it involved interpretation of Article 16(6) of the Laws of the Constitution of Perak.

Sulaiman, however, was of the view that that High Court should first resolve the leave application and if his client succeeded in obtaining the leave, only then should the issue of referral to the Federal Court be dealt with.

Nizar’s case was mentioned before Lau who replaced Judicial Commissioner Mohamad Ariff Md Yusof after the latter recused himself from hearing the suit on 25 Feb.

Nizar, 52, had filed for a judicial review, seeking a declaration that he is still the rightful Perak menteri besar, and an injunction to bar Zambry from discharging his duties as the menteri besar.

In his application, Nizar is also seeking an interpretation of the Perak state constitution on whether the menteri besar’s post can be vacated when:

>> The menteri besar had advised the Ruler on the dissolution of the state legislative assembly;

>> There is no dissolution of the assembly;

>> There was no motion of confidence performed against him at the state legislative assembly; and

>> There was no resignation made by him.

Nizar said the writ was quo warranto (by what warrant) on Zambry to show cause under which authority the Barisan Nasional-installed menteri besar could be the legitimate menteri besar.

Nizar is also seeking punitive, aggravated and exemplary damages and costs.

Today, both Sulaiman and Kamaluddin submitted on the interpretation of certain provisions with regard to the issue of referral to the Federal Court.

Sulaiman said the proper procedure was for the High Court to deal with the leave application first because the case before that court was to seek ex-parte leave application for judicial review.

This was because at this stage, no questions of law arose as the sole question for the High Court to determine was whether Nizar’s application satisfied the minimum threshold requirement of obtaining leave under Order 53 of the Rules of the High Court and whether the application was frivolous or not.

At this stage, Nizar was the only party to the proceedings, he said.

In defining Section 84 of the Courts of Judicature Act 1964 (CJA), the provision which Kamaluddin applied in seeking to refer the matter to the Federal Court, Sulaiman said the word “constitution” set out in the section only applied to the reference of matters relating to the Federal Constitution and not the state constitution.

Kamaluddin contended that the matter ought to be referred to the Federal Court pursuant to Section 84 of the Act because construing the word “constitution” was not limited to the Federal Constitution but included the constitutions of the 13 states.

“It is a matter of choice whether this issue of constitutional provision be referred to the Federal Court by either this court or either parties in the proceedings as both can exercise their rights to refer to the Federal Court,” he said.

The court also heard submissions on the Attorney-General Chambers’s role in the proceedings as well as the locus standi (legal standing) of Perak legal adviser Datuk Ahmad Kamal Md Shahid in representing Zambry in the case.

However, the matter of Ahmad Kamal’s locus standi was deferred after justice Lau said she wanted to hear submissions on whether the case should be referred to the Federal Court. — Bernama


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