MB vs MB case back to High Court

PUTRAJAYA, 28 April 2009: The Federal Court today ruled that the dispute between Datuk Dr Zambry Abdul Kadir and Datuk Seri Mohammad Nizar Jamaluddin about who is the rightful Perak Menteri Besar will be heard and determined by the High Court.

The five-person bench headed by Court of Appeal President Tan Sri Alauddin Mohd Sheriff unanimously held that there were disputed facts in this case relating to two affidavits affirmed by Nizar and Perak Legal Adviser Datuk Ahmad Kamal Md Shahid.

The others on the bench were Chief Judge of Malaya Datuk Ariffin Zakaria and Federal Court justices Datuk Zulkefli Ahmad Makinuddin, Datuk Wira Mohd Ghazali Mohd Yusuf and Datuk James Foong.

The proceedings to examine Kamal’s affidavit will be heard before High Court Judge Datuk Abdul Aziz Abd Rahim on 4 May.

Nizar Outside the courtroom, Nizar told reporters that today’s decision was a sign that the Perak political crisis could reach a final settlement.

“I hope the state legislative assembly sitting on 7 May will be postponed until the dispute is settled at the High Court. No need for us to be hasty because many facts are being disputed here,” he said.

This is the second time the case was remitted back to the High Court.

The first was on 23 March when the Federal Court ruled that issues involving the interpretation of Article 16(6) of the Perak Constitution must be heard and decided at the High Court, and could only be brought to the Federal Court by way of appeal.

The Federal Court was today supposed to hear Zambry’s fast track application, filed on 21 April, to seek a declaration that he is the rightful menteri besar.

With the sitting of the five-member panel, Nizar’s request for a nine person-bench to hear the case was turned down.

Material contradictions

Earlier in the proceedings today, Nizar’s counsel Sulaiman Abdullah objected to Zambry’s application on the grounds that there were disputed facts on the dissolution of the Perak state legislative assembly which was scheduled to be heard at the High Court next week.

He said there was material contradiction between what was affirmed by Kamal in his affidavit with what actually had happened in the meeting between Nizar and the Sultan Azlan Shah on Perak on 4 Feb.

“I affirm that when I had an audience with His Royal Highness (HRH) the sultan, I never stated and did not inform, and never suggested to HRH the sultan that there was loss of confidence in me as Menteri Besar by the majority of the state legislative assembly. I also never recommended to HRH the sultan to dissolve the state legislative assembly in accordance with Article 16(6) of the Perak government constitution.

“Referring to the legal adviser’s affidavit, I state that Datuk Ahmad Kamal’s version on what had happened was wrong and inaccurate,” said Sulaiman, reading out the affidavit affirmed by Nizar.

Zambry He also submitted that Kamal had represented Zambry when the case was called for mention before Judicial Commissioner Mohamad Ariff Md Yusof on 18 Feb.

“Datuk Kamal had appeared for Zambry and clearly showed that he was not neutral,” said Sulaiman.

He also said that on the principle of res judicata (a matter already judged) the application should not be heard by the Federal Court as the same application on the same issue had been determined by the same court on 23 March.

Counsel Datuk Cecil Abraham for Zambry said in reply that there was documentary evidence based on two letters written by Nizar to the Sultan of Perak on 4 and 5 Feb to show that there were no disputed facts as claimed by the respondent.

He also said that the principle of res judicata was not applicable because the issue of Article 63 did not arise at the hearing before the Federal Court on 23 March.

Present during the proceedings were Attorney-General Tan Sri Abdul Gani Patail as the intervener, counsel Mohd Reza Hassan who holds a watching brief for Barisan Nasional and assistant Perak legal adviser Zulqarnain Hassan. — Bernama