Saturday, April 4, 2009

MB vs MB: Judgment gives Nizar a boost

Original Source:

Mohd Nizar Jamaluddin's bid to challenge the legitimacy of Zambry Abdul Kadir's appointment as Perak menteri besar received a fresh impetus when the Kuala Lumpur High Court granted him leave and agreed that there are merits to his case.

In allowing his leave application for the hearing of his judicial review of the appointment, Justice Abdul Aziz Abd Rahim fixed next Wednesday for case management.

perak pac hearing 050309 nizarRuling that the facts of the case have their merits, the judge was of the view that the application was not frivolous, vexatious and an abuse of the court process.

He said Mohd Nizar was seeking a writ of quo warranto - which is one of the remedies available to determine the legality of Zambry's appointment since the Perak legislative assembly was not dissolved and the applicant (Nizar) did not resign.

The fact is, he said, Mohd Nizar did see the Perak sultan to apply for the dissolution of the state assembly to settle the present impasse in order to hold a fresh elections.

"Regretfully, the sultan did not give his permission to dissolve the assembly and the respondent (Zambry) was appointed as the new menteri besar.

"However, the applicant did not resign as there was no vote of non-confidence against him. Article 16 (6) of the Perak constitution only states four conditions where a menteri besar can vacate his post including tendering his resignation but this was not made."

In February, Mohd Nizar and the Pakatan Rakyat government were booted out of power following a political coup by Barisan Nasional.

Next Tuesday, the ousted menteri besar will be contesting in the Bukit Gantang parliamentary by-election, which is being touted as a referendum on the Perak takeover.

Appeal may be filed

Meanwhile, Justice Abdul Aziz said both parties have agreed that there was no dispute over the non-dissolution of the legislative assembly. It was also agreed by the applicant and attorney-general that the Perak ruler has his own prerogative powers.

"The fact remains that the applicant (Mohd Nizar) is questioning whether the respondent (Zambry's) coming into power is legal or not."

"The threshold test at this stage is to convince whether there is a prima facie arguable case," he said.

Mohd Nizar was represented by senior lawyer Sulaiman Abdullah while senior Federal Counsel Kamaluddin Md Said represented the Attorney-General's Chambers. Senior lawyer Cecil Abraham and his son Sunil represented Zambry.

Following the decision, Abdul Aziz directed Sulaiman to hand over the application and documentation to Abraham on Tuesday and fixed 3.30pm the next day for case management.

Commenting on the decision, Kamaluddin said he would discuss with the AG (Abdul Gani Patail) on whether to file an appeal.

However, it is not known if they could file an appeal as the AG is not a party in the application for a judicial review. They are merely invited to assist the court to deliberate on the constitutional issue.

Mohd Nizar filed for a judicial review on Feb 13, where among others, he sought 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 when can the menteri besar's post be vacated.

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

He 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 tasks and roles as menteri besar.

He is also seeking an interpretation of the Perak constitution over when can the post of menteri besar be vacated as stated under Article 16(6).

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

(b) There was no dissolution of the assembly;

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

(d) The menteri besar did not resign.

'Some light at the end of the tunnel'

In welcoming the decision, Sulaiman said that he was somewhat surprised there was so much objection from the AG's Chambers on the issue of leave.

"The AG had strenuously argued on the grounds that Mohd Nizar's application was frivolous and vexatious and the arguments advanced by the AG were extremely technical. It did not seem to address the issues that arose from the application.

"In fact, the reaction from the AG's Chambers appears to be one of closing the eyes altogether to the substantial issues and taking refuge in certain arguments as to the justiciability of the Sultan of Perak's decision," he said.

Sulaiman said his client has been consistent that he is in no way challenging the authority or decision and wisdom of the sultan.

"We are happy that the basic law for a judicial review has been upheld. We look forward to the substantive arguments once the hearing dates are fixed," he said.

In conclusion, Sulaiman said he was glad that the protracted court battle has seen "some light at the end of the tunnel."

Asked if today’s ruling today meant that Mohd Nizar did not commit ‘derhaka’ (treachery) against the sultan as alleged by certain quarters, Sulaiman said ‘derhaka’ means that one
goes against the ruler’s powers or his authority.

"We or Mohd Nizar are not questioning the ruler or his authority. We are merely questioning Zambry's authority to sit as the Perak MB," he said, adding that his client gave specific instructions when filing the action that it must not give the impression that he was challenging the sultan.

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