Saturday, March 21, 2009

MB vs MB sent to Federal Court



©The Malaysian Insider
by Debra Chong

PUTRAJAYA, March 20 — The Court of Appeal today dismissed an appeal by Datuk Seri Mohammad Nizar Jamaluddin against the Kuala Lumpur High Court’s decision to refer the question of who is the lawful Perak menteri besar to the Federal Court.

The three-member panel of judges, comprising Datuk Md Raus Sharif, Datuk Abdull Hamid Embong and Datuk Ahmad Ma’arop, unanimously ruled that High Court judge Lau Bee Lan was right to refer the state constitutional dispute to the Federal Court to decide.

“We agree the word ‘constitution’ under Section 84 is not confined to the Federal Constitution but includes the state constitutions,” Md Raus announced in open court this afternoon, referring to the section of the law under the Courts of Judicature Act (CJA).

“As such, the High Court was not wrong to refer the question to the Federal Court.

“The appeal is therefore dismissed,” he said.

Nizar’s lawyers, led by Sulaiman Abdullah, had earlier argued that Lau had misinterpreted the law under Section 84 of the CJA to mean she had the discretion to refer the constitutional conundrum to the apex court.

Sulaiman contended that Section 84 provides for the judge’s discretionary power to do so only if the dispute related specifically to the Federal Constitution and not to state constitutions.

But Attorney-General Tan Sri Abdul Gani Patail countered that the definition of the word “constitution” must include a more “liberal and proper meaning” to include state constitutions.

Abdul Gani, who today took over from senior federal counsel Datuk Mohamad Kamaluddin Md Said in advising the court, pointed out that the constitutions of several states, notably Sabah and Sarawak, do not have clauses that give them the right to refer state constitutional disputes all the way to the Federal Court.

The Court of Appeal granted leave to Nizar’s judicial review, which had been neglected earlier at the High Court level.

With that order, Datuk Zambry Abdul Kadir, the de facto Perak menteri besar, is now a party to the proceedings.

Neither Nizar nor Zambry were present for today’s hearing.

The Federal Court, which was scheduled to hear the KL High Court’s referral this morning, will do so next Monday.

Zambry’s new lead lawyer, Firoz Hussein Ahmad Jamaluddin, who was present in court today, told reporters he had no problems with the four referral questions framed earlier by Lau.

The four questions to be answered by the Federal Court are:

1. “Whether the withholding of consent to a request for the dissolution of the State Legislative Assembly of Perak under Article XVI (6) read together with Article XVII (2) (b) of the Constitution of Perak by His Royal Highness the Sultan of Perak is justiciable?

2. “If the answer to the first question is in the affirmative, the following question is whether the withholding of consent by His Royal Highness the Sultan of Perak is lawful.

3. “Whether the appointment of the new menteri besar under Article XVI (2) (a) read together with Article XVII (2) (a) of the Constitution of Perak by His Royal Highness the Sultan of Perak is justiciable?

4. “If the answer to the above question is in the affirmative, the following question is whether the new menteri besar is validly appointed?”

Firoz noted the questions will resolve the main issues at the heart of the Perak constitutional crisis, which is related to the “justiciability” of the Sultan of Perak, that is whether the court can question the Ruler’s decision to appoint a new menteri besar.

But Nizar’s lawyers argued otherwise.

“We are not challenging the Sultan of Perak in any way. Nobody is challenging the Sultan’s decision,” one of Nizar’s lawyers, Leong Cheok Keng, told reporters outside the courtroom.

“We are just saying Nizar has not resigned, no vote of no confidence has been taken against him, how can there be a new menteri besar?” Leong said, pointing to the demands in Nizar’s original suit.

In part 1(b) of the suit filed on Feb 18, Nizar asked the High Court to decide if the menteri besar’s post can be considered vacant, based on Article 16(6) of the Perak State Constitution, when:

(i) The menteri besar had advised the Ruler on the dissolution of the State Legislative Assembly;

(ii) There was no dissolution of the Assembly;

(iii) There was no motion of no-confidence taken or passed against the menteri besar in the Assembly;

(iv) The menteri besar did not resign.

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