KUALA LUMPUR, 2 April 2009: The High Court will decide tomorrow on a leave application filed by former Perak Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin who is challenging the appointment of his successor by the Sultan of Perak.
Justice Datuk Aziz Abdul Rahim fixed the date after hearing submissions from Senior Federal Council Datuk Kamaluddin Md Said who is representing the Attorney-General’s office and Nizar’s counsel Sulaiman Abdullah.
Kamaluddin objected to the leave application by arguing that Nizar’s application was frivolous, vexatious and abuse of the process of the court since the appointment of Datuk Dr Zambry Abdul Kadir was made by the Sultan, which is non-justiciable under the state constitution.
“Since it is the royal prerogative of the Sultan, the said decision is not justiciable and is not susceptible for judicial review by this court,” said Kamaluddin.
He said the AG’s office opposed the leave application on grounds that the applicant had employed the wrong mode of proceedings under the Rules of the High Court 1980.
Kamaluddin pointed out that Order 53 rule 2(4) had clearly stated that any person who is adversely affected by the decision of any public authority shall be entitled to make the application.
He said in this proceeding, the respondent (Zambry) was an individual and he was named personally, where in fact, he was not a public authority within the ambit of Order 53.
“It is clear that the applicant in the present case cannot institute judicial review proceedings against the respondent as the latter is not a public authority,” he said.
Kamaluddin concluded his submission by stressing that ruler of a state is a public authority and he has sovereignty and prerogative to appoint the respondent as Menteri Besar and therefore cannot be sued or challenged in civil court.
On 13 Feb Nizar filed the application challenging the legitimacy on the appointment of Zambry and the new state government.
He is also seeking a declaration that he is the rightful Menteri Besar of Perak and an injunction to stop Zambry from discharging his duties as the Menteri Besar.
Sulaiman in his reply pointed out that the judidial review application was not against the Sultan.
“Both appointees are lawfully entitled to seek the court’s assistance to clarify the correct legal position, the appointing authority need not to be involved in the dispute,” he said.
Sulaiman pointed out that while the applicant was still in office, the respondent could not also claim to be the rightful Menteri Besar.
“There cannot be two persons occupying one office of the Menteri Besar,” added Sulaiman.
He said the applicant had been adversely affected by the unlawful actions of the respondent, and he had a legal right as well as sufficient interest to bring the judicial review application.
Sulaiman said the court was duty-bound to correct and clarify the legal position in this dispute by granting leave to proceed with the judicial review proceedings. — Bernama
