Thursday, April 2, 2009

Nizar vs Zambry: Leave decision tomorrow - Malaysiakini

By Hafiz Yatim | Apr 2, 09 7:38pm

The Kuala Lumpur High Court will decide tomorrow on whether to grant leave to proceed with Mohd Nizar Jamaluddin's judicial review to determine the rightful Perak menteri besar.

Justice Abdul Aziz Abdul Rahim said he would deliver the decision at 3pm tomorrow after hearing a preliminary objection from the Attorney-General Chambers and reply from Nizar's lead counsel Sulaiman Abdullah.

In the court today, proceedings started at 2.40pm, and ended at 5.55pm following the lengthy submission by both parties. Today's hearing also saw the appearance of senior counsel Cecil Abraham and his son Sunil Abraham to hold a watching brief for Zambry.

Perak assistant legal advisor Zulqarnain Hassan held a watching brief for the Perak government while lawyer M Reza Hassan held a watching brief for Barisan Nasional.

Throughout proceedings, Abdul Aziz - who is on the second day of work in Kuala Lumpur after his transfer from Sarawak - made his notes on his laptop computer.

The proceedings started with Senior Federal Counsel Kamaluddin Md Said objecting to the leave application, saying the issue was non-justiciable as the decision had been made by the Perak's Sultan Azlan Shah.

"The applicant's submission (Nizar's) for leave is frivolous and vexatious and abuse of the court process as it is clear fact the decision by the sultan under Article 16 (6) of the Perak constitution was non justiciable.

"Furthermore, the actions of the Yang di Pertuan Agong, rulers and governers are protected under Article 160 of the Federal Constitution. Hence, this brings the fact that the sultan's action as a public authority to appoint BN's Zambry Abd Kadir cannot be challenged," said Kamaluddin.

Sultan not a party in the action

He also submitted that in this case, only Zambry had been made a respondent in the case and not the Sultan of Perak, which can be considered as a public authority.

Kamaluddin said in this case, Nizar should have showed which public authority had aggrieved him and certainly it was not Zambry.

malaysian law conference 291007 sultan azlan shah 1Setting the background of the case, the senior federal counsel said the case started right after Nizar's application to the Sultan of Perak to dissolve the state legislative assembly, which was not granted.

Following this, he said the sultan decided to appoint Zambry as the new menteri besar.

If Zambry's position was being disputed, Kamaluddin said let Zambry be allowed to bring his appointment letter to prove this.

Kamaluddin said as the main issue was the action taken by the Sultan of Perak is non-justiciable, leave should be granted.

Nizar filed the application for a judicial review on Feb 13, and sought for, among others, a declaration that he is the rightful Perak menteri besar.

He is also seeking an interpretation of Article 16(6) of the Perak constitution on when can the menteri besar's post be vacated.

In his application, Nizar said Zambry should cite the authority that allowed him to legitimately become the menteri besar.

Nizar is also seeking a declaration that Zambry has no right to be menteri besar at any material time, plus an injunction to prevent him or his agents from continuing his task and role as the menteri besar.

The case came up today after the Federal Court decided the two cases on the Perak situation must be heard at the High Court before coming to the Federal Court.

There can never be two MBs in office

Meanwhile, Sulaiman submitting in favour of the leave application said the court must be satisfied that the applicant has fulfilled the threshold issue.

In this case, the Perak constitution stated that the menteri besar's post can be vacated when:

(a) The menteri besar had advised the ruler on dissolution of the state legislative assembly;

(b) There was no dissolution of the assembly;

(c) There was no motion of confidence against the menteri besar in the state legislative assembly; and

(d) The menteri besar did not resign.

He said Nizar did not fulfil any of the conditions as he did not resign and neither did the other factors falls into place.

Sulaiman said the Perak menteri besar cannot be dismissed by the sultan because the position was not held at the pleasure of the Sultan of Perak.

"As such, Nizar is still in office and the respondent (Zambry) cannot also claim to be the rightful menteri besar. There cannot be two persons occupying one office of the menteri besar," he subnmitted.

Sulaiman also pointed out the action against Zambry was based on `quo warranto' where it is the respondent's burden to satisfy the court of his eligibility to hold the public office (i.e. the menteri besar) in question.

"If the court is satisfied, the matter ends there. On the other hand, if the respondent fails to discharge the burden, the court will issue orders to the effect of removing or injuncting Zambry from continuing to act under the name of menteri besar," he said.

Sulaiman also pointed out that Nizar had the locus standi (legal standing) to make the application as he was adversely affected by the unlawful actions of the respondent, and he has a legal right as well as sufficient interest to bring the judicial review.

The senior lawyer said this was not the appointment of ministers or state excos where the prime minister, or the chief minister or menteri besar can advise the king or sultan.

"This is the appointment of the menteri besar or at the federal level the prime minister," he said.

On the issue of non-justiciable, Sulaiman pointed out that the person being challenged was not the appointing authority (Perak sultan), but the appointee to the office of menteri besar.

"The main issue in this application revolves around the Perak constitution in the office of menteri besar. The issue of non-justiciability does not arise at all," he said.

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