Nizar applies to set aside stay (Updated 5.40pm)

Corrected on 14 May 2009 at 6.38pm
Corrected on 14 May 2009 at 1.15am

Updated 54.40pm, 13 May 2009

PUTRAJAYA, 13 May 2009: The Court of Appeals here will on 18 May hear Datuk Seri Mohammad Nizar Jamaluddin’s motion to set aside the stay of execution order obtained by Datuk Seri Dr Zambry Abdul Kadir over the High Court ruling declaring Nizar as the rightful Perak menteri besar.

Nizar

Nizar’s application was filed by lawyers from Leong & Tan at the Court of Appeals Registrar at 2.08pm. Lawyer Grace Wong said they have also filed a certificate of urgency to hear his appeal.

(Corrected) She said it was not certain if a three-person bench of judges would hear Nizar’s motion.

Yesterday, Court of Appeal judge Datuk Ramly Ali, who sat on the bench alone, granted Zambry’s application for a stay of execution and said the court would fix an early date to hear Zambry’s appeal against the High Court decision on 11 May.

As such, Zambry remains the Perak MB until the court disposes his appeal.

High Court judge Abdul Aziz Abdul Rahim on 11 May declared Nizar as the rightful menteri besar after ruling that he (Nizar) had not vacated the office of menteri besar since he had not lost the majority confidence of the state legislative assembly.

In an affidavit filed by Nizar to support his appeal, the embattled Pakatan Rakyat menteri besar said the stay of execution should not be granted to Zambry because his appeal has no merit. He also pointed out that a declaratory order cannot be suspended.

Zambry’s appeal had no merit because of the High Court’s ruling that no vote of no-confidence was taken in the state legislative assembly, and therefore Nizar had not lost the majority confidence.

The High Court had also ruled that there was no provision in the state constitution for the menteri besar to be fired or for the post to be vacant in the event that the menteri besar refuses to resign, Nizar noted.

Additionally, Nizar said his motion against the stay granted to Zambry would not affect Zambry’s appeal.

There was also special circumstance in Nizar’s favour. These include the fact that Nizar had never asked the court to suspend Zambry after he was sworn in as MB on 6 Feb by the sultan of Perak, and decided to wait for the outcome of his judicial review, Nizar said in his affidavit.

Nizar also said there would be no prejudice against Zambry if the stay granted to him yesterday was set aside. This is because the office of MB is an “office of trust” and Zambry has no personal rights to the position.

“Instead, if the stay is upheld, the prejudice against me would be very obvious as the High Court had ruled me as the legitimate menteri besar,” Nizar said in his affidavit.

Nizar, who was appointed menteri besar on 17 March last year after the DAP-PKR-PAS alliance won 31 seats in the 12th general election.

He was ousted after Barisan Nasional (BN)’s Datuk Seri Dr Zambry Abdul Kadir was sworn in as Perak menteri besar on 6 Feb following the BN takeover of the state government. The takeover was precipitated by the defection of three Pakatan Rakyat (PR) assemblypersons who opted to become BN-friendly independents, leading to PR losing its majority in the state assembly.

Nizar, who had sought an audience with the sultan of Perak on 5 Feb to request the dissolution of the state assembly but was turned down and instead ordered to step down as MB, filed suit against Zambry.

On 13 Feb, Nizar, 52, filed a judicial review and sought a declaration from the courts that he is at all material times the menteri besar of Perak. He also sought a declaration that Zambry has no right to hold the office of menteri besar.

Nizar said that if the High Court decision was suspended, it would worsen the political and constitutional crisis in Perak. It would also hamper administration of the state, confuse the people and civil servants as to who the legitimate menteri besar is, and stir up ill feelings among Malaysians.

 “The stay will only protect the status quo of having an illegal menteri besar,” Nizar said in his affidavit.

The High Court had grated Nizar the five declarations requested in his judicial review:

• that he was at all material times the menteri besar of Perak;
• that the post of menteri besar was never vacated because there was no dissolution of the state assembly, no vote of no-confidence was taken in the assembly, and he (Nizar) had never resigned;
• that there was a quo warranto writ served on Zambry asking him to show cause and explain on what authority he held the menteri besar’s post;
• Zambry had no rights to hold the menteri besar’s post and was never menteri besar at any material time; and,
• an injunction to prevent Zambry from carrying out the duties of the menteri besar’s office.

See: Court cases related to the 2009 Perak constitutional crisis (Corrected)