Monday, March 23, 2009

Federal Court returns Perak cases to High Court

Original Source:

The Federal Court today set aside the Court of Appeal's decision on Friday and returned the constitutional questions to determine the legitimacy of the Perak menteri besar back to the Kuala Lumpur High Court.


v sivakumar and perak independent state assembly people 050309Meanwhile, the apex court also decided to return the case of the three independent assemblypersons suit against Perak legislative assembly speaker V Sivakumar, to the Perak High Court.

The Federal Court, which is the highest court in the land, made the decision before a five-member panel headed by Court of Appeal president, Justice Alauddin Mohd Sheriff, where it decided the two cases must be heard at the High Court before coming to the Federal Court by way of appeal.

Other judges were Chief Judge of Malaya Justice Arifin Zakaria, Justice S. Augustine Paul, Justice Zulkefli Ahmad Makinudin and Court of Appeal judge James Foong.

In their decision, the apex court judges ruled that Kuala Lumpur High Court judge Justice Lau Bee Lan and Ipoh Judicial Commissioner Ridwan Ibrahim had no power to refer the state constitutional question under Section 84 of the Courts of Judicature Act (CJA) to the Federal Court.

Alauddin then set aside all the orders made by the Court of Appeal last Friday that included the four questions provided by the attorney-general’s chambers must be heard and decided by the Federal Court and remitted the case to the High Court, before the same judge, Lau Bee Lan.

Attorney-general also present

This was because the word constitution under the Act was limited to the Federal Constitution and does not cover the Perak state constitution.

The apex court made the decision following a preliminary objection made by ousted Perak menteri besar Mohd Nizar Jamaluddin's lead counsel Sulaiman Abdullah.

Following the decision, the Kuala Lumpur High Court is expected to hear the case either this week or next week. Similarly, the three independents’ suit against Sivakumar is expected to be brought back to Ipoh before the same judge.

nizar jamaluddin dr zambry abdul kadir perakToday’s hearing also sees a rare occasion as this was the first time where Nizar met the BN’s Zambry Abdul Kadir at the hearing.

Also present was attorney-general Abdul Gani Patail, who was there to advise on constitutional matters if needed.

Earlier, Sulaiman applied that the matter be heard before a nine-member panel at the Federal Court. However, this was not allowed by Alauddin who ruled a five-member panel was sufficient.

According to section 74 (1) of the CJA, every proceeding in the Federal Court shall be heard and disposed of by three Judges or such greater uneven number of judges as the chief justice may in any particular case determine.

Last Friday, the Court of Appeal rejected an appeal by Nizar against the High Court order to transfer his case against Zambry to the Federal Court.

Nizar had filed for judicial review

High Court judge Lau had ruled on March 6 that there were constitutional issues involving the interpretation of Article 16 (6) of the Perak constitution and referred four constitutional questions to the Federal Court for determination.

Following today’s decision by the apex court, the four constitutional questions formulated by the attorney-general’s chambers on March 10, were not heard as the case is remitted back to the High Court.

Nizar had filed for a judicial review on Feb 13, seeking a declaration that he is the rightful menteri besar of Perak and an injunction to bar Zambry from discharging his duties as the menteri besar.

In the suit, Nizar, among others, is seeking a declaration that he is the rightful Perak menteri besar.

He is also seeking an interpretation of Article 16(6) of the Perak constitution on whether the menteri besar's post can be vacated when:

(1) The menteri besar had advised the ruler on dissolution of the state legislative assembly;

(2) There was no dissolution of the assembly;

(3) There was no motion of confidence against the menteri besar in the state legislative assembly; and

(4) The menteri besar did not resign.

In his application, Nizar said Zambry should cite the authority that allowed him to legitimately become the menteri besar.

Nizar is also seeking a declaration that Zambry has no right to be menteri besar at any material time plus an injunction to prevent him or his agents from continuing his task and role as the menteri besar.

Meanwhile, the three assemblypersons - Jamaluddin Mohd Radzi (Behrang), Mohd Osman Mohd Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) - want the court to declare that they have not resigned and were still elected representatives.

Their case arose following their defections from Pakatan Rakyat in February which resulted in Sivakumar stating that he had received their resignation letters and called for by-elections after declaring their seats vacant.

However, the trio said that they had not submitted any resignation letters and claimed that Sivakumar had used their undated resignation letters. They also informed the EC that they had not resigned.

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