Federal Court to decide on Nizar’s case (Updated 5.05pm)

KUALA LUMPUR, 6 March 2009: The High Court here today referred the suit by Datuk Seri Mohammad Nizar Jamaluddin challenging the legitimacy of Datuk Dr Zambry Abdul Kadir’s appointment as Perak menteri besar to the Federal Court for determination of constitutional issues.

Justice Lau Bee Lan issued the referral order, saying that there were constitutional issues involving the interpretation of Article 16(6) of the Perak constitution which required the country’s highest court to resolve.

She invoked Section 84 of the Courts of Judicature Act (CJA) when making the order and directed Nizar’s counsel, Sulaiman Abdullah, and senior federal counsel Datuk Kamaluddin Md Said to formulate the constitutional questions to be referred to the Federal Court.

Lau then stayed the judicial review in her court.

In her ruling, she agreed with Kamaluddin’s argument that Section 84 was applicable to this case as it covered issues arising from both the Federal Constitution and the state constitution.

Sulaiman, in his submission on Tuesday, gave a different view. He contended that the proper forum was for the High Court to first deal with and grant his client’s application for leave to file for judicial review before considering the issue of referral to the Federal Court.

He argued that Section 84 only applied to cases in which issues arose from the Federal Constitution and not the state constitution and that it was not applicable to Mohammad Nizar’s suit as the issues in dispute related to the Perak state constitution.

Lau also dismissed Sulaiman’s application to stay her order pending his appeal to the Court of Appeal against the order.

Sulaiman said his instruction was to pursue the appeal against the decision to the Court of Appeal because Lau’s ruling was a novel one which involved the interpretation of the CJA which might have repercussions on other cases.

Lau then tentatively fixed Tuesday to determine whether the questions formulated for the Federal Court’s determination can be pronounced in an open court.

Mohammad Nizar, the Pasir Panjang state assemblyperson, was asked to step down as menteri besar by the Perak Sultan who then swore in Dr Zambry after declaring that Barisan Nasional (BN) had the majority in the state assembly.

This came about after three Pakatan Rakyat (PR) assemblypersons quit their parties to become independents friendly to the BN, and another returned to Umno just days after joining Parti Keadilan Rakyat (PKR).

This left both PR and BN with 28 assemblypersons each in the 59-seat assembly.

Mohammad Nizar, 52, who is also Perak PAS deputy commissioner, is seeking a declaration that he is the rightful menteri besar of Perak, and an injunction to bar Dr Zambry from discharging his duties as the 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:

>> The menteri besar had advised the Ruler on the dissolution of the state legislative assembly;

>> There is no dissolution of the assembly;

>> There was no motion of confidence performed against him at the state legislative assembly;

>> There was no resignation made by him.

Nizar also wants Dr Zambry to show cause under which authority the latter can be the legitimate menteri besar, besides seeking punitive, aggravated and exemplary damages and costs.

Lau, in her decision, also held that the Attorney-General (AG)’s Chambers was not a party to the judicial review proceedings and the option to file an application to refer the matter to the Federal Court under Article 63 of the Perak constitution was not available to it.

She accepted Sulaiman’s argument that in an ex-parte leave application, the AG’s Chambers could not be a party to the proceedings.

After delivering her ruling, she stood down the proceedings to enable both parties to help formulate the questions for the Federal Court to resolve.

Arguments then followed on whether the court should make a pronouncement of the questions that the Federal Court was going to determine.

Sulaiman said it was in the public’s interest to make the pronouncement but Kamaluddin questioned whether it was the court’s practice to do so. — Bernama