We all know that after the decision on May 11 by the High Court that Mohd Nizar Jamaluddin is the legitimate menteri besar of Perak, Zambry Abdul Kadir on May 12 succeeded in obtaining a stay of execution order from the court of appeal pending the appeal proper.I admit that the stay of execution order raises a lot questions and it can be confusing to a layperson. I will try my best to provide my opinions on the whole matter. The first question we must ask is this: what is an order for a stay of execution? An order for stay of execution is an order that the appealing party applies for to stop the successful party from executing or enforcing an order/judgement.
In normal circumstances, an order for stay of execution works thus:
Example 1:
A obtains judgement against B for RM1,000. B appeals against the judgement to a higher court.
While waiting for the appeal to be heard, B applies for a 'stay of execution' order. If the court grants the order, A cannot make B pay the RM1,000 until the appeal is disposed of.
Example 2:
C obtains order against D to seize his car. D appeals to a higher court, applies for a stay. If the court grants the order, C cannot seize D's car until appeal is heard.
However, a stay of execution does not overturn the lower court's decision. So using the examples above, the judgement A obtains against B and the order C obtains against D still stand. What the stay does is that it stops A and C from executing/enforcing the court's decision.
The decisions can only be overturned by the appeal proper. So what about the situation in Perak, now that Zambry has obtained a court order for stay of execution? One thing is for sure, the high court's decision still stands. It has not been overturned by the court of appeal, as the appeal proper has not been heard.
It is the ‘execution/enforcement' of that decision that is 'stayed'.
There is an old reported English case, Clifton Securities, Ltd. v Huntley and Others [1948] 2 All ER 283. The case concerned a piece of land which the plaintiff had leased to the defendants. The lease had expired but the defendants refused to move out of the premises. The case went to court and the plaintiff succeeded in obtaining judgement against the defendants for vacant possession and compensation.
The defendants appealed on the judgement and obtained a stay of execution pending the appeal. The plaintiff, however, cut off the gas, electricity and water to the premises in order to force the defendants out of the premises. The defendants claimed that the actions of the plaintiff were unlawful as they were entitled by the stay of execution to ‘remain in undisturbed possession of the premises'.
Justice Denning (as he then was) held that the defendants' claim was a ‘complete misconception to the effect of a stay'. According to him:
‘A stay of execution only prevents the plaintiff from putting forth the machinery of law - the legal processes of warrants of execution and so forth - in order to regain possession. It does not take away any other rights they have. It does not prevent their exercising any right or remedy which they have apart from the process of the court.'
Thus, a stay of execution only prevents the execution/enforcement of judgement or order and does not take away any other rights the successful party may have. It does not change the legal position as decided by the court previously.
Here's the difficult part; how do you stay the ‘execution/enforcement' of the Kuala Lumpur High Court's decision in the Perak case? It's not like in the examples I gave above.
The high court's order contained a ‘prayer' (legal lingo to refer to the things asked for by a party in the court pleadings) of an injunction to prevent Zambry from exercising any function purportedly as mentri besar.
With the stay order, it is clear that Nizar cannot enforce that injunction ie, he cannot stop Zambry from acting like the menteri besar.
As for the prayers for declaratory orders, especially the declaration that Nizar is the rightful menteri besar at all times, the effect of the stay is less clear, although some have argued that declaratory orders cannot be stayed.
It could mean that while Nizar is still the legitimate menteri besar (as the high court decision still stands), he may not be able to exercise his functions as a menteri besar. It could also mean that Nizar cannot assume the office of menteri besar for now.
But what I am very certain of is that the stay of execution order does not make Zambry the menteri besar. Remember, the high court's decision still stands.
This is not a situation whereby Zambry was a menteri besar for 3-4 months before Nizar was reinstated as menteri besar. The high court's decision basically meant that Zambry's ‘appointment' was illegal from the start.
So the question of Zambry ‘resuming' as menteri besar for now does not arise, regardless of how the mainstream media will try to spin it. I would say that in the eyes of the law, Zambry never assumed the post of menteri besar.
In the case of Clifton Securities Ltd. which I referred to earlier, the defendants' argument that they are entitled by the stay of execution to ‘remain in undisturbed possession of the premises' was rejected by Justice Denning (again, as he then was).
The defendants, who were trespassers onto the plaintiff's land did not all of a sudden have rights of undisturbed possession of the premises merely by obtaining the stay order. The defendants remained as trespassers until the appellate court ruled otherwise.
Similarly, just because Zambry had obtained a court order for a stay of execution, he does not suddenly become the menteri besar. He remains an illegal menteri besar until and unless the court of appeal rules otherwise.
So the most we can go with in interpreting the order for stay is that Perak does not have a menteri besar until the appeal is heard.
However, notwithstanding that Nizar may not be able to exercise his functions as menteri besar or he cannot assume the post of menteri besar for now, it is clear that Zambry has no legal basis to claim he is menteri besar.
He cannot simply waltz into the state secretariat and act like the mentri besar merely by virtue of having a court order.
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