April 3, 2009 By M. MAGESWARI
KUALA LUMPUR: Former Perak Mentri Besar Datuk Seri Mohammad Nizar Jamaluddin succeeded in his bid to get leave from High Court for a judicial review challenging the legitimacy of his successor.
The court set Wednesday for case management.
Justice Abdul Aziz Abd Rahim ruled that the leave application for a judicial review was not frivolous or vexatious.
In his opinion, he said, Nizar has convinced the court that there was a prima facie arguable case.
In granting the leave under Order 53 of the Rules of the High Court 1980, the judge said the court did not have to see the merits at the leave stage.
“The applicant has a very low threshold to meet at the leave stage,” he said in his ruling in open court on Friday.
Justice Abdul Aziz said he was bound by the apex court ruling that leave could be granted to Nizar if it found that there were issues to be investigated further with submissions from both parties.
“I agree with the submissions of the applicant’s counsel Sulaiman Abdullah that the material facts were not questioned.
The issue of justiciability or non-justiciability of the decision of the Sultan of Perak over the dissolution of the state Assembly is not questioned by both parties.
“Both agreed that the Sultan of Perak has absolute discretion over the dissolution of the State Assembly and the appointment of the Mentri Besar.
Justice Abdul Aziz said Nizar only questioned the appointment of Dr Zambry was valid or not under the Perak Constitution.
He said that the obvious fact was that Nizar has asked the Sultan to dissolve the state Assembly in order to solve a situation of “deadlock” but the ruler had not granted his request.
At that time, Nizar did not resign as Mentri Besar nor was he rejected from being a Mentri besar due to a motion of no confidence was tabled and adopted at the Assembly.
“The issue (to be examined further during the inter-parte hearing) is whether Nizar has lost the confidence of the assembly and whether he had to resign under Article 16(6) of the Perak Constitution,” he said.
In an immediate ruling, Justice Abdul Aziz ordered Sulaiman to file fresh documents by Tuesday for the hearing of the judicial review.
In his suit filed on Feb 13, Nizar, who is a PAS member, is challenging the legitimacy of his successor, Datuk Dr Zambry Abd Kadir and the new state government.
Nizar is seeking to get a declaration that he is the rightful Mentri Besar of Perak and an injunction to bar Dr Zambry from discharging his duties as the Mentri Besar.
Justice Abdul Aziz further ordered the two parties to appear before him on Wednesday for case management.
In immediate response, lead counsel Datuk Cecil Abraham, who held a watching brief for Dr Zambry, said Nizar did not need to serve papers to him and that he would appear in the court proceedings.
Senior Federal Counsel Datuk Kamaluddin Md Said, who is the Attorney-General’s Chambers representative, told the judge that he would seek instructions from the Attorney-General whether to file an appeal against the ruling or proceed with an application to intervene in the substantive motion.
Speaking to reporters later, Sulaiman said he was happy on the basis that laws relating to the judicial review had been upheld by the judge.
“At all times, Nizar had said that according to law and Perak Constiution, the situation had not arisen where the office of Mentri Besar had fallen vacant to enable the Sultan to appoint Dr Zambry as appointee to the office of MB.
“Nizar has been consistent. He is not challenging the authority or the decision of the Sultan of Perak,” he said.
Sulaiman said he was glad that finally his client, who had to go through tremendous struggle to put the case to court ,could see “some light in the tunnel”.